Exhibit 10.1
LEGAL REPRESENTATION AGREEMENT
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THIS AGREEMENT (the "Agreement") is made and entered into this 27th day
of May, 2003 (hereinafter "Effective Date"), by and between decisioning.com,
Inc., a Delaware corporation located at 1122 Lady Street, Suite 1145, Columbia,
South Carolina 29201 (the "Company"), and Withrow & Terranova, PLLC, a North
Carolina professional limited liability company located at 201 Shannon Oaks
Circle, Suite 200, Cary, North Carolina 27511 (the "Law Firm").
WITNESSETH:
WHEREAS, all the issued and outstanding capital stock of the Company
currently is owned by Affinity Technology Group, Inc., a Delaware corporation
("Affinity"); and
WHEREAS, the Company desires to engage the Law Firm to provide legal
representation in connection with licensing and enforcing patents owned by the
Company; and
WHEREAS, the Company and the Law Firm mutually desire to set forth in
this Agreement the terms and conditions applicable to such engagement;
NOW, THEREFORE, the parties, intending to be legally bound, hereby
agree as follows:
SECTION I
DEFINITIONS
1.1 "Patents" shall mean the U.S. patents listed in Appendix A and
their corresponding non-U.S. counterparts, and all reissuances, re-examinations,
continuations, continuations-in-part, and divisionals, of all of the
aforementioned, if any.
1.2 "Patent Agreement" shall mean an agreement entered into after
the date hereof under which the Company grants a license to all or a subset of
the Patents to any third party, whether with or without patent litigation;
provided, however, that the term Patent Agreement shall not mean any agreement
between the Company and any of the parties identified on Appendix B with whom
the Company currently has an Existing Licensing Agreement.
1.3 "Litigation" shall mean (1) the filing and prosecution of a
lawsuit for patent infringement against a third party for infringement of one or
more of the Patents (including, but not limited to, defending any counterclaims
brought by such third party in connection therewith); (2) the defense of any of
the Patents in an action against the Company in respect to any of the Patents,
including a declaratory judgment; (3) the filing and prosecution of a patent
infringement counterclaim against a third party that brings an action against
the Company in respect to any of the Patents, including a declaratory judgment
against any of the Patents; or (4) a patent interference proceeding at the U.S.
Patent & Trademark Office (USPTO). If a counterclaim of patent infringement is
made by the Company in a legal action filed by a third party against the Company
in respect to any of the Patents, the defense of such action and counterclaim
shall count as a single Litigation. A Litigation is deemed to have ended when
such Litigation is dismissed from the tribunal in which the Litigation was
filed, the Company decides not to appeal a judgment within the prescribed time
under applicable law, or a judgment is rendered by a tribunal from which no
appeal can be taken. A Litigation instigated by the Company that names multiple
independent parties is considered to be multiple Litigations where the total
number of Litigations is the same as the number of independent parties named in
such Litigation.
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SECTION II
APPOINTMENT OF THE LAW FIRM
2.1 The Company hereby appoints the Law Firm as the Company's
exclusive representative for the solicitation, negotiation and execution of
Patent Agreements with third parties. The Company shall have control of any
material decisions in connection with such representation. The Law Firm will
also represent the Company as its patent legal counsel, and will undertake to
engage in Litigation against prospective licensees if legal action becomes
necessary at the request of the Company. Notwithstanding the foregoing, at no
time shall the Company require the Law Firm, and the Law Firm be obligated to
represent the Company in more than five (5) Litigations without the consent of
the Law Firm. The Company shall have control of all material decisions involving
any Litigation, including selection of which third parties legal action shall be
brought against, and settlement of any Litigation. The Law Firm hereby
represents and warrants to the Company that the primary members of the Law Firm
responsible for the Law Firm's duties and obligations under this Agreement shall
be Steven N. Terranova and Benjamin S. Withrow (the "Members").
2.2 Nothing contained in this Agreement shall be construed as
granting or conveying to the Law Firm any rights to use the Patents, by
implication or otherwise. The Law Firm hereby acknowledges the Company's
proprietary interest in the Patents and all materials related thereto, and the
Law Firm hereby agrees not to take, or authorize the taking of, any action that
would compromise, damage or dilute the interest of the Company in the Patents or
any related materials. The Law Firm hereby agrees that it shall not challenge or
otherwise take any action to impair the Company's rights in the Patents.
SECTION III
DUTIES OF THE LAW FIRM
3.1 The Law Firm hereby agrees in connection with its legal
representation of the Company under this Agreement to use its best efforts to
perform its duties under this Agreement, including without limitation to:
A. Identify prospective licensees based on market analysis;
B. Contact such prospective licensees and discuss possible
Patent licenses;
C. Negotiate, draft and obtain a definitive Patent Agreement with
each such prospective licensee;
D. If requested by the Company, represent the Company as legal
counsel in connection with any Litigation commenced by the
Company during the term of this Agreement provided that if
the Law Firm is not licensed to practice law in the
jurisdiction where such Litigation is brought or defended,
as the case may be, the Law Firm shall be allowed by the
Company to hire local counsel licensed to practice law in
the jurisdiction where such Litigation is brought or
defended, as the case may be. The Law Firm is only required
to commence a Litigation against a third party if such third
party infringes at least one valid claim in the Patents and
the requirements of Rule 11 of the Federal Rules of Civil
Procedure are met and satisfied;
E. Provide legal services related to the continued prosecution
of the Company's Patents with the USPTO, to include, but not
limited to, filing of continuation applications in respect
of the Patents, prosecuting and defending re-examinations of
the Patents, and prosecuting any reissue applications of the
Patents; and
F. Obtain and supervise foreign counsel related to the
continued prosecution of the Company's Patents outside the
United States, to include, but not limited to defense of
oppositions against the Patents.
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3.2 The Law Firm, under the direction of the Company, shall solicit,
draft and negotiate (subject to Section 3.3 below) Patent Agreements with third
parties.
3.3 Notwithstanding anything in this Agreement to the contrary, all
Patent Agreements shall be in such form and have such terms and conditions,
including pricing terms, as are established and approved by the Company.
3.4 The Law Firm may engage persons and/or other counsel to assist
the Law Firm to perform its duties hereunder subject to final approval by the
Company; provided, however, that (a) one of the Members shall directly supervise
the activities of any such persons or other counsel; and (b) the Law Firm shall
obtain the Company's approval prior to engaging any such persons or other
counsel, and, if requested by the Company, the Law Firm shall cause such persons
to enter into a non-disclosure agreement and in an attorney-client relationship
(if counsel) with the Company on terms and conditions reasonably acceptable to
the Company.
3.5 The Law Firm shall not be required to take any action with
respect to the Company or the Patents that is prohibited by law.
3.6 All material decisions that arise out of the Law Firm performing
its duties provided in Section 3 of this Agreement shall be made under the
direction of the Company.
SECTION IV
COVENANTS OF THE COMPANY
4.1 If:
(a) the Company identifies a prospective licensee that, in the
Company's reasonable opinion, infringes all or a subset of valid claims
in any of the Patents; and
(b) after reasonable time and effort by the Law Firm, such
prospective licensee refuses to enter into a Patent Agreement with the
Company,
then, upon the Company's reasonable request, the Law Firm shall promptly
commence a legal action against such prospective licensee for patent
infringement of the Patents in which all or a subset of valid claims of the
Patents are infringed. Notwithstanding the foregoing, at no time will the
Company require the Law Firm to represent the Company in more than five (5)
Litigations at any one time without the consent of the Law Firm.
4.2 The Company shall promptly advise the Law Firm regarding all
inquiries received by the Company relating to the licensing of any or all of the
Patents. The Law Firm shall promptly advise the Company regarding all inquiries
received by the Law Firm relating to the licensing of any or all of the Patents.
4.3 In consideration of the Law Firm's legal representation services
hereunder, the Company shall pay to the Law Firm the amounts established
pursuant to Sections 5.1 and 5.3 of this Agreement below.
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SECTION V
COMPENSATION
5.1 (a) As compensation for its services hereunder, the Law Firm
shall receive a payment in an amount equal to twenty-five percent (25%) (the
"Revenue Percentage") of (i) all amounts paid as damages or in settlement by any
parties against whom Litigation has been commenced by the Company during the
Term of this Agreement; and (ii) all revenues received by the Company under any
Patent Agreements with any third parties with whom the Law Firm has concluded
licensing discussions, with whom the Law Firm has negotiated a term sheet, or
against whom the Law Firm commenced litigation (collectively "Revenues"). Such
compensation shall be payable by the Company to the Law Firm within thirty (30)
days after the Company has received such Revenues. Notwithstanding the
foregoing, the Law Firm shall not be entitled to receive any compensation with
respect to revenues generated under any agreement between the Company and any of
the parties identified on Appendix B (the "Existing License Agreements").
(b) In addition to the foregoing, if the Company shall sell,
directly or indirectly through the sale of Affinity or the Company, one or more
of the Patents (the "Sold Patents") to a third party (the "Purchaser"), the Law
Firm will be entitled to receive a payment in an amount equal to twenty-five
percent (the "Sales Commission") of the total purchase price paid by the
Purchaser to the Company or Affinity as the case may be (reduced by all ordinary
and customary expenses incurred in connection with such sale) (the "Sales
Price").
If the Sold Patents are sold as a result of the Purchaser purchasing
Affinity, and Affinity is engaged in another business or owns other assets not
related to the licensing or sale of the Sold Patents that are also being sold to
the Purchaser as part of the same sale with the Sold Patents (the "Other
Assets"), the Sales Price to which the Sales Commission shall be applied shall
be the percentage of the Sales Price that is equal to (1) the fair market value
of Sold Patents divided by (2) the fair market value of the Sold Patents plus
the fair market value of the Other Assets (the "Pro-Rata Sales Price"). If there
is any dispute between the parties about the Pro-Rata Sales Price to which the
Sales Commission shall be applied, both parties shall work cooperatively
together in good faith to select an independent appraiser at a cost to be shared
equally between the Company and the Law Firm that is qualified to evaluate the
fair market value of the Sold Patents and the fair market value of the Other
Assets, and the results of such analysis shall be used by the parties to
calculate the Pro-Rata Sales Price.
In addition, the Sales Commission shall not exceed five millions
dollars ($5,000,000.00) (the "Sales Commission Limit") if such sale occurs
within one year after the Effective Date of this Agreement. On each anniversary
date of this Agreement starting with the first anniversary date of this
Agreement, the Sales Commission Limit will be increased by two and one-half
million dollars ($2,500,000.00) per year for the first, second, third and fourth
anniversaries of this Agreement. Starting with the fifth anniversary of this
Agreement, there shall be no Sales Commission Limit to limit the Law Firm
receiving the full Sales Commission. Such Sales Commission discussed above in
this Section 5.1(b), and subject to the provisions set forth in Section 5.2
below, shall be payable by the Company to the Law Firm within thirty (30) days
after the Company has received the Sales Price from the Purchaser and shall
consist of the same proportionate cash and non-cash consideration as paid by the
Purchaser to the Company. Upon payment of the Sales Commission, this Agreement
shall terminate, and neither the Company nor the Purchaser(s) shall be obligated
to make any further payments to the Law Firm under or in connection with this
Agreement except as provided in Section 5.3 of this Agreement.
5.2 In the event the Company executes a sales transaction as
contemplated by Section 5.1(b) above and the Purchaser or Purchasers desire to
retain the services of the Law Firm in a professional capacity, the retention of
such services shall be disclosed to the Company in writing within fifteen (15)
days after the closing of the sales transaction and shall be subject to the
Company's written approval. In the event the retention of the Law Firm's
services are not disclosed to the Company within fifteen (15) days of the
closing of the sales transaction or Company withholds its approval, the Law Firm
agrees that neither the Law Firm nor any one of its Members will, for a period
of five (5) years after such sales transaction, provide any professional
services to any Purchaser or Purchasers if such professional services have a
bearing directly or indirectly on the Patents.
5.3 The Company shall be responsible for and shall pay for all
out-of-pocket costs and expenses incurred or to be incurred by the Law Firm in
connection with its services hereunder on a periodic and ongoing basis,
including but not limited to production services, travel and lodging required,
consultants, and other experts, but excluding costs and expenses incurred in
connection with the operations of the Law Firm. All such out-of-pocket expenses
must be pre-approved by the Company.
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5.4 The Law Firm may, at its cost and expense, audit the Company's
and/or its parent's books and records for the purpose of determining the amount
of Revenues received by the Company from the Patent Agreements. Any such audit
shall be no more frequent than once each calendar year.
SECTION VI
TERM AND TERMINATION
6.1 The term of this Agreement shall commence upon the Effective
Date of this Agreement and shall continue until the last to expire of the
Patents, unless earlier terminated by any party in accordance herewith.
Following the third anniversary of this Agreement, either party may terminate
this Agreement for any reason, with or without cause, by providing the other
party with no less than thirty (30) days advance written notice, and subject to
the foregoing, this Agreement shall terminate at such time as set forth in such
notice. In addition, either party may terminate this Agreement for cause (as
specified below) at any time by delivering notice to the other party, and this
Agreement shall thereupon terminate immediately.
6.2 The Company may terminate this Agreement at any time for cause.
With respect to any such termination, "cause" shall mean (i) the Law Firm shall
have materially breached any term of this Agreement or any other agreement
between the Company or any of its affiliates and the Law Firm and, if such
breach can be cured, the Law Firm shall have failed to cure such breach within
thirty (30) days after receiving notice from the Company of such breach;
provided, however, that the Company shall not be required to give notice of any
specific type of breach more than once; (ii) the employment of one of the
Members with the Law Firm shall terminate, or the Law Firm shall re-assign,
without the Company's prior written consent, primary responsibility for the Law
Firm's obligations under this Agreement to any person other than one of the
Members; (iii) the Law Firm shall have committed an act of financial dishonesty
against the Company; (iv) the Law Firm shall have committed an act involving a
felony or involving moral turpitude that brings the Company or any of its
affiliates into public disrepute; or (v) the Law Firm shall have demonstrated
repeated inattentiveness with respect to its obligations under this Agreement as
evidenced by, without limitation, failure by the Law Firm to devote the time and
attention required to fulfill its obligations under this Agreement, repeated
failure by the Law Firm to return telephone calls from the Company, repeated
failure by the Law Firm to participate in any meetings reasonable arranged by
the Company, or any other acts or failures to act that evidence the Law Firm's
repeated inattentiveness provided that the Law Firm shall have failed to cure
such inattentiveness within thirty (30) days after receiving notice from the
Company of such inattentiveness; and provided, however, that the Company shall
not be required to give notice of any specific type of inattentiveness more than
once.
6.3 The Law Firm may terminate this Agreement at any time for cause.
With respect to any such termination, "cause" shall mean (i) the Company shall
have materially breached any term of this Agreement or any other agreement
between the Company and the Law Firm and, if such breach can be cured, the
Company shall have failed to cure such breach within thirty (30) days after
receiving notice from the Law Firm of such breach; provided, however, that the
Law Firm shall not be required to give notice of any specific type of breach
more than once; (ii) the Company shall have committed an act of financial
dishonesty against the Law Firm; (iii) the Company shall have committed an act
involving a felony or involving moral turpitude that brings the Law Firm or any
of its affiliates into public disrepute; or (iv) the Company shall have
demonstrated repeated inattentiveness with respect to its obligations under this
Agreement as evidenced by, without limitation, failure by the Company to devote
the time and attention required to perform its obligations under this Agreement,
repeated failure by the Company to return telephone calls from the Law Firm,
repeated failure by the Company to participate in any meetings reasonably
arranged by the Law Firm, or any other acts or failures to act that evidence the
Company's repeated inattentiveness provided that the Company shall have failed
to cure such inattentiveness within thirty (30) days after receiving notice from
the Law Firm of such inattentiveness; provided, however, that the Law Firm shall
not be required to give notice of any specific type of inattentiveness more than
once.
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6.4 If this Agreement is terminated, the Law Firm shall be entitled
to the following:
(a) If the Company terminates this Agreement for "cause" as defined
in Section 6.2 of this Agreement, the Law Firm shall be entitled
to receive twenty-five percent (25%) of the Revenues thereafter
received by the Company attributable to any Patent Agreements
entered into prior to such termination. The Company shall allow
and give permission to the Law Firm to withdraw as counsel from
all pending and anticipated Litigation and prosecution of the
Patents provided that Law Firm shall work cooperatively with the
Company to transition such Litigation and prosecution of the
Patents to counsel of the Company's choosing and the Company
shall diligently work to obtain new counsel to become counsel of
record for such Litigation and Patents.
(b) If this Agreement is terminated by the Company without "cause" as
defined in Section 6.2 of this Agreement, or this Agreement is
terminated by the Law Firm "with cause" as defined in Section 6.3 of
this Agreement the Law Firm shall be entitled to receive: (i)
twenty-five percent (25%) of the Revenues thereafter received by the
Company attributable to (A) any Patent Agreements entered into prior
to such termination and (B) any Patent Agreements entered into after
such termination with any licensee with whom the Law Firm, upon the
Company's approval, was engaged in substantive discussions or
substantive negotiations, or to whom, upon the Company's approval, the
Law Firm has sent a communication notifying such third party of
infringement or possible infringement of any of the Patents prior to
notice of termination, or to whom, upon the Company's approval, the
Law Firm has sent a written inquiry about whether such third party
desires to obtain a license to any of the Patents prior to notice of
termination, or against whom, upon the Company's approval, the Law
Firm arranged for and/or initiated the commencement of Litigation
prior to the time of termination; and (ii) twelve and one-half percent
(12.5%) of Revenues thereafter received by the Company during the
first one-half of the then-remaining life of the last to expire of the
Patents attributable to any Patent Agreements entered into subsequent
to such termination (to the extent not covered by clause 6.4(b)(i)
above); and the Company shall allow and give permission to the Law
Firm to withdraw as counsel from all pending and anticipated
Litigation and prosecution of the Patents provided that Law Firm shall
work cooperatively with the Company to transition such Litigation and
prosecution of the Patents to counsel of the Company's choosing and
the Company shall diligently work to obtain new counsel to become
counsel of record for such Litigation and Patents.
(c) If this Agreement is terminated by the Law Firm without cause, the
Company shall not be obligated to make any further payments to the Law
Firm except as provided in this Section 6.4(c). The Law Firm shall be
required to continue representation of the Company in any pending
Litigations at the time of such termination until such time that the
Company can obtain new counsel of its choosing. The Company shall pay
the Law Firm a pro-rata payment based on a full payment in an amount
equal to twenty-five percent (25%) of all Revenues received by the
Company under any Patent Agreements or judgments that result form such
Litigations wherein the amount of pro-ration shall be one hundred
percent (100%) if no other counsel works on such Litigations before
such Litigations result in a Patent Agreement or a judgment, and the
amount of pro-ration shall be a percentage in proportion to the amount
of work performed by the Law Firm versus new counsel if new counsel is
obtained by the Company to be counsel for the Litigations.
(d) In addition to the payments set forth above, if this Agreement is
terminated by any party, the Company shall remain obligated to
pay and/or reimburse the Law Firm for all out-of-pocket costs and
expenses incurred or to be incurred by the Law Firm in connection
with its services hereunder, including but not limited to
production services, travel and lodging required, consultants,
and other experts, but excluding any costs and expenses incurred
in connection with the operations of the Law Firm.
(e) The payments required to be made by the Company to the Law Firm
pursuant to this Section 6.4 shall be the only payments that the
Company shall be obligated to make to the Law Firm following the
termination of this Agreement.
6.5 The provisions of Sections 5.2, 5.3, 5.4, VI (all sections), VII
(all sections), VIII (all sections), and XI (all sections), shall survive any
termination of this Agreement.
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SECTION VII
LIMITATION OF LIABILITY
7.1 In no event shall either party be entitled to special, indirect
or consequential damages, including lost profits, for breach of this Agreement
by the other party.
SECTION VIII
INDEMNITIES
8.1 The Company hereby agrees to indemnify the Law Firm from and
against any loss, liability, claim, damage or expense (including reasonable
attorneys' fees and expenses), whether or not involving a third-party claim,
arising out of any material breach by the Company of any of the terms of this
Agreement or any Patent Agreement, or against any action brought by a
shareholder of Affinity against the Law Firm related to this Agreement or Law
Firm's services hereunder if the Law Firm has not breached this Agreement or its
duties to the Company, and the Law Firm has not otherwise violated any law or
regulation that is the cause of such action brought by such shareholder of
Affinity.
8.2 Promptly after receipt by the Law Firm of any notice of the
commencement of any action in Section 8.1 of this Agreement, the Law Firm shall
notify the Company in writing of the commencement thereof, but the failure to
give such notice shall not relieve the Company from its obligations hereunder
except to the extent that the Company demonstrates that the defense of such
claim or demand is materially prejudiced by the failure to give such notice. In
case any such action shall be brought by a third party against the Law Firm and
it shall notify the Company of the commencement thereof, the Company shall be
entitled to participate therein and, to the extent that it shall wish, to assume
the defense thereof, with counsel reasonably satisfactory to the Law Firm, and,
after notice from the Company of its election so to assume the defense thereof,
the Company shall not be liable to the Law Firm for any attorneys' fees and
expenses subsequently incurred by the Law Firm. In any such action, each party
hereby agrees to cooperate with the other party in the defense thereof.
SECTION IX
REPRESENTATIONS AND WARRANTIES
9.1 The Company hereby represents and warrants that it is the sole
owner of the Patents and has the right to grant licenses under the Patents to
third parties, the Company has the right to enter into this Agreement and enter
into the commitments provided in this Agreement, and that set forth on Appendix
B are all parties with whom the Company has entered into Existing License
Agreements.
9.2. Each party understands and acknowledges that even though it will
exert its best efforts to perform in accordance with this Agreement and to
obtain Patent Agreements between third parties and the Company through
negotiations and/or enforcement of the Patents, such party does not guarantee or
warrant that a third party will execute a Patent Agreement with the Company.
Each party acknowledges that the decision as to whether a third party executes a
Patent Agreement with the Company may be based on a variety of factors and other
reasons that may be beyond the control of both the Company and the Law Firm.
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SECTION X
NOTICES
10. All notices, demands, or other communications required or
permitted by this Agreement shall be in writing and shall be sent or given to
the following address:
If to the Company, to:
decisioning.com, Inc.
1122 Lady Street
Suite 1145
Columbia, South Carolina 29201
Telecopy: (803) 758-2560
Attention: President
If to the Law Firm, to:
Withrow & Terranova, PLLC
201 Shannon Oaks Circle
Suite 200
Cary, North Carolina 27511
Telecopy: (919) 654-4521
Attention: Steven Terranova
with an additional copy to:
Withrow & Terranova, PLLC
P.O. Box 1287
Cary, North Carolina 27512
Attention: Managing Member
Such notice shall be deemed to have been duly sent or given when (i) delivered
by hand, (ii) sent by facsimile transmission (with written confirmation of
receipt), provided a copy is mailed by registered mail, return receipt
requested, or (iii) mailed by registered or certified mail, postage prepaid
(return receipt requested), or nationally recognized overnight delivery service.
Either party may change its address or telecopy number for purposes of notices
hereunder upon notice to the other party, provided that such change shall be
effective only upon receipt thereof by the other party.
SECTION XI
CHOICE OF LAW AND ARBITRATION
11.1 This Agreement shall be governed and construed in accordance
with the laws of the State of North Carolina without regard to conflict of laws
principles. Except as otherwise provided in Section 11.2 of this Agreement, any
arbitration proceeding initiated by the Company shall take place in Raleigh,
North Carolina, and any arbitration proceeding initiated by the Law Firm shall
take place in Columbia, South Carolina.
11.2 Any controversy, dispute, or question arising out of, or in
connection with, or relating to the compensation to be paid by the Company to
the Law Firm under this Agreement, including under Sections V, VI, and VIII,
shall first be handled under the North Carolina State Bar's fee dispute
resolution in Raleigh, North Carolina under Rule 1.5(f) of the North Carolina
Rules of Professional Conduct, which includes the requirement of the Law Firm to
(1) make reasonable efforts to advise the Company of the existence of the North
Carolina State Bar's program of fee dispute resolution at least thirty (30) days
prior to initiating legal proceedings against the Company to collect the
disputed compensation; and (2) participate in good faith in the fee dispute
resolution process if the client submits a proper request.
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11.3 Subject to Section 11.2 of this Agreement, any controversy,
dispute or question arising out of, or in connection with, or in relation to
this Agreement or its interpretation, performance or non-performance or any
breach thereof shall be determined by arbitration conducted in accordance with
then-existing rules of the American Arbitration Association. Each party to such
dispute shall select one arbitrator and the two arbitrators shall select a third
with substantially similar qualifications. Any decision rendered shall be
binding upon the parties thereto and may be enforced in any jurisdiction.
However, the arbitrators shall have no authority to grant any relief that is
inconsistent with the Agreement. The expense of arbitration shall be borne
equally by the parties thereto.
SECTION XII
ASSIGNMENT AND SEVERABILITY
12.1 This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by the Law Firm without the
prior written consent of the Company, and any such attempted assignment shall be
null and void. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by the Company without the prior written
consent of the Law Firm, and any such attempted assignment shall be null and
void.
12.2 The parties intend that this Agreement shall be a valid legal
instrument, and no provision of this Agreement which is later deemed invalid or
unenforceable shall in any way invalidate any other provisions of this
Agreement. In such case, this Agreement shall be reformed to the minimum extent
necessary to correct any invalidity or unenforceability.
SECTION XIII
COMPLETE AGREEMENT
13.1 The Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof. No amendment, waiver or
discharge hereof shall be valid unless it is in writing and executed by the
party against whom such amendment, waiver or discharge is sought to be enforced.
13.2 The parties agree that this Agreement is the complete and
exclusive statement thereof between the parties with respect to the subject
matter hereof and that it supercedes and merges all prior proposals and
understandings and all other agreements, whether written or oral, 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
hereof.
SECTION XIV
INDEPENDENT LEGAL ADVICE AND REVIEW
14.1 The Company agrees and hereby acknowledges that it has been
advised by the Law Firm to seek independent legal advice regarding this
Agreement, and that the Company has sought and received independent legal advice
from an attorney of law regarding this Agreement, and the Company is entering
into this Agreement of its own volition after receiving such independent legal
advice.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as set forth below.
WITHROW & TERRANOVA, PLLC DECISIONING.COM, INC.
Signature: Signature:
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Name: Steven N. Terranova Name: Joseph A. Boyle
Title: Member Title: President
Date: Date:
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