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EXHIBIT 10.7
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CONSULTANT AGREEMENT
This is an Agreement between FirePond, Inc., a Minnesota corporation
having an office at 0000 Xxxxxxx Xxxxx, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxx
00000-0000, and its successors and assigns (hereinafter FirePond) and SOFT OS,
INC., an PENNSYLVANIA CORPORATION, (hereinafter Consultant).
1. PURPOSE OF AGREEMENT
Consultant has furnished FirePond with contract software development
services. The purpose of this Agreement is to memorialize the terms and
conditions for contract services performed by Consultant for FirePond.
These terms govern the general conduct, including disclosure of
information and intellectual property rights. Consultant provides
general contract development and management for computer programming
services.
2. DEFINITIONS
The term "Consultant" in this Agreement shall include not only the
individual or company indicated in the first paragraph of this
Agreement but also any agents or employees of that individual or
company.
3. SERVICES
Consultant shall perform services as set forth in the attached
Schedule(s) or as otherwise directed by FirePond from time to time. All
Schedules must be signed by the Consultant and FirePond in order to
become a valid part of this Agreement.
4. TERM OF AGREEMENT
4.1 The term of this Agreement shall be three (3) years from 2/22,
1999, the date of this Agreement. The term is
non-cancelable.
4.2 This Agreement shall automatically renew for additional one
(1) year periods unless either party gives not less than one
hundred eighty (180) days advance written notice of
non-renewal. In the event the parties of such automatic
renewal, the parties agree the same terms and conditions shall
apply.
4.3 Paragraphs 2, 6, 7, 8, 10, and 12 of this Agreement, and the
Schedules, shall survive termination of the Agreement. Upon
termination of this Agreement, Consultant shall return all
materials to FirePond that have been received from, on behalf
of or in conjunction with FirePond during the term of the
Agreement.
5. COMPENSATION
Consultant's compensation shall be set forth on mutually agreed
schedules from time to time. Consultant agrees to keep records showing
all expenses incurred on behalf of FirePond with the purpose for such
expenditures. Reimbursement shall be made in accordance with such
Schedules(s).
6. CONSULTANT IS INDEPENDENT CONTRACTOR
Consultant is an independent contractor and is not an agent or employee
of FirePond. This means that Consultant will be responsible for
operation as an independent contractor and for meeting all legal
requirements applicable to Consultant. It also means that Consultant
will not be covered by any benefits or compensation plans provided for
FirePond employees.
7. CONFIDENTIALITY REQUIREMENT
7.1 FirePond software and all information exchanged by the parties
under this Agreement, specifically identified in writing as
confidential and proprietary or its equivalent and transmitted
by either party to the other shall be maintained in confidence
by the receiving party, and the receiving party shall
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use the FirePond software and such information only as
authorized by FirePond. FirePond and Consultant agree to take
reasonable precautions to protect against unauthorized
disclosure of the FirePond software and such information to
third parties. Consultant shall make no attempts nor assist
any other parties in attempting to reverse compile,
disassemble, or otherwise reverse engineer the FirePond
software or any portion thereof, nor shall Consultant permit
others to do so.
7.2 Neither FirePond nor Consultant shall be obligated to maintain
any information received from the other party as confidential
and refrain from use, if:
7.2.1 the information was in the receiving party's
possession or was known to it prior to its receipt
from the disclosing party; or
7.2.2 the information is independently developed by the
receiving party without the utilization of such
confidential and proprietary information provided by
the disclosing party; or
7.2.3 the information is or becomes public knowledge
without the fault of the receiving party.
7.3 Consultant agrees to retain in confidence all information and
knowledge that is gained and transmitted to Consultant by
Microsoft or other FirePond suppliers via FirePond and that
has been designated as confidential and proprietary or its
equivalent or that, by the nature of the circumstances
surrounding the disclosure, should be treated in confidence,
and will make no use of such information and knowledge other
than for use authorized by FirePond. Consultant is not
obligated to maintain the information in confidence if the
information falls into the categories described in sections
7.2.1 through 7.2.3 of this Agreement.
7.4 Consultant shall immediately report any breaches of
confidentiality to FirePond of which it becomes aware.
Consultant shall also immediately report to FirePond any
person(s) who seek confidential and proprietary information or
its equivalent from Consultant or FirePond employees. Failure
to report these matters to FirePond are grounds for immediate
termination of this Agreement and FirePond may pursue any
legal remedies allowed by law against Consultant.
8. NON-COMPETE
See Schedule AGREEMENT REGARDING INVENTIONS, CONFIDENTIALITY
AND NON-COMPETITION. Schedule A shall apply to Consultant.
9. ASSIGNMENT AND LICENSE OF INTELLECTUAL PROPERTY RIGHTS See Schedule
AGREEMENT REGARDING INVENTIONS, CONFIDENTIALITY AND NON-COMPETITION.
Schedule A shall apply to Consultant.
10. INFORMATION OF CONSULTANT OR THIRD PARTIES
With respect to any information, knowledge, or data disclosed to
FirePond by Consultant, Consultant shall, to the best of its knowledge,
give FirePond advance written notice if the work Consultant is
performing infringes any patent, copyright, or trademark, or is based
on a trade secret or other confidential and proprietary information or
other intellectual property rights of Consultant or of others.
Consultant agrees that it shall not knowingly furnish or use any such
intellectual property rights in the performance of this Agreement, nor
shall Consultant knowingly use the trade secrets or other confidential
and proprietary information of Consultant or others, without the prior
written consent of FirePond.
11. COMPLIANCE WITH LAW
Each party agrees to comply with all applicable laws, rules, and
regulations, including the Foreign Corrupt Practices Act, in connection
with its activities under this Agreement and to obtain any and all
required governmental approvals, which are required for this Agreement.
This Agreement is subject to and conditioned upon compliance with the
U.S. Export Administration Act and the applicable regulations
thereunder and the export control laws and regulations of all the
relevant countries.
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12. MISCELLANEOUS
12.1 The provisions of this Agreement and the attached Schedule
AGREEMENT REGARDING INVENTIONS, CONFIDENTIALITY AND
NON-COMPETITION shall be binding upon Consultant, and
Consultant's heirs, agents, employees, successors and
permitted assigns. This Agreement may be transferred or
assigned by FirePond but may not be assigned by Consultant
without FirePond's prior written consent. Consultant agrees to
have its agents and employees enter into the attached Schedule
AGREEMENT REGARDING INVENTIONS, CONFIDENTIALITY AND
NON-COMPETITION with FirePond in order to effect the
provisions of sections 7, 8, 9, 10 and 11 of this Agreement.
Consultant agrees to provide FirePond with copies of such
agreements signed by Consultant's agents and employees.
12.2 Consultant's performance of this Agreement may not be
subcontracted or assigned without the prior written consent of
FirePond.
12.3 Consultant may not assign any of its rights under this
Agreement without the prior written consent of FirePond.
Likewise, the Consultant will not obligate FirePond to third
parties without FirePond's prior written consent.
12.4 Consultant agrees to indemnify and hold harmless FirePond from
any disclosures or violations of this Agreement by an agent or
employee of Consultant.
12.5 This Agreement, including all Schedules, sets forth the entire
understanding of the parties. All prior and contemporaneous
discussions and agreements are merged into this Agreement.
12.6 Neither FirePond nor Consultant shall be deemed to be in
default of any provision of the Consultant Agreement for any
failure in performance resulting from acts or events beyond
the reasonable control of FirePond or Consultant.
12.7 In the event FirePond provides Consultant with any hardware or
software, it shall be identified in a Schedule. Such hardware
and software shall remain the property of FirePond. Under no
circumstances may this Agreement be interpreted as a sale or
rental of the hardware or software. Consultant covenants that
it will not transfer care or custody of the equipment to any
other party. Consultant agrees to return the software and
hardware to FirePond in good working order, given allowances
for normal use, at the end of the project identified in the
Schedule or upon request by FirePond. Consultant shall be
responsible for any loss or damage to the software or hardware
while it is in the possession of Consultant or Consultant's
agents or employees.
IN WITNESS WHEREOF, the parties have signed this Agreement by their
duly authorized representatives.
CONSULTANT - SOFT OS, INC. FIREPOND, INC.
By: Xxxxxxx Xxxxxx By: Xxxxxx X. Xxxxxxxx
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Signature: /s/ Xxxxxxx Xxxxxx Signature: /s/ Xxxxxx X. Xxxxxxxx
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Title: President Title: Secretary and General Counsel
--------------------------- -----------------------------
Date: 2/22/99 Date: February 22, 1999
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Schedule A
A. The parties desire to engage SOFT OS as general contractor as set forth in
the Agreement. SOFT OS has certain subcontractors for development arrangements
and desires FirePond's consent. The purpose of the development arrangement is to
utilize the services of the SOFT OS subcontractor, EP Group, under the consent
and supervision of FirePond. EP Group shall receive a fee for the services from
SOFT OS as general contractor according to separate arrangement between SOFT OS
and EP Group.
B. SOFT OS shall contract with EP Group to:
o Provide FirePond at least fifty (50) qualified developers to expedite the
realization of FirePond's product line. FirePond shall be involved in
managing the development of the fifty developers;
o EP Group is to source the best developers from it's current staff of
between seventy and eighty developers that fit the skill set required for
the development of FirePond's product line. EP Group may at times be
required to recruit developers from alternate sources available to EP Group
in order to provide the developer with the right skill set for the
development of FirePond's product line.
C. EP Group may continue certain business under management distinct from the
persons servicing FirePond, and wind down certain other business of the EP
Group.
1. DEFINITIONS. For purposes of this Agreement, the following
capitalized terms shall have the meaning ascribed to them below:
CODE shall mean computer programming code. Unless otherwise specified,
Code shall include such computer programming code in both object code and source
code forms.
CONFIDENTIAL INFORMATION shall mean the Deliverables (including drafts
and associated materials) and any other information that FirePond or the EP
Group indicates to be confidential and FirePond or the EP Group acquires from
the other (as a result of disclosure by FirePond or the EP Group to the other,
access to FirePond or the EP Group facilities by the other, analysis of
FirePond's or the EP Group's products or enhancements, or otherwise) in
connection with the Services. However, Confidential Information does not include
information that rightly becomes public or that either party independently
develops or acquires without reliance on other Confidential Information of the
other.
DELIVERABLES shall mean all Code, Documentation, and other media,
materials, or other objects produced as a result of the Services or delivered by
EP Group in the course of providing the Services, and including the existing IP.
DOCUMENTATION shall mean any written materials that relate to
particular Code or the programming or development thereof, including materials
useful for design (for example, logic manuals, flow charts, and principles of
operation).
EP GROUP in this Agreement shall mean EPAm Systems, Ltd., a New Jersey
general partnership, EPAm Systems, Inc., a corporation, each of which have
offices at 000 Xxxx Xxxxxx, Xxxxxxxxx, XX 00000 (hereinafter "EPAM"), and
Effective Programming, a Belarus Company
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and wholly owned subsidiary of EPAM with offices at 00 Xxxxxxxxxx Xxxxxx, Xxxxx
0, Xxxxx, Xxxxxxx and include any majority-owned or controlled subsidiary or
affiliate, of EP Group.
IP shall mean the intellectual property of the EP Group which exists on
the date of this Agreement and which is created after the date of this
Agreement. This definition includes, without limitation, all patents,
trademarks, service marks, trade names, and copyrights (including registrations,
letters patent, licenses, and applications pertaining thereto), technical and
descriptive materials relating to the acquisition, design, development, use, or
maintenance of computer code and program documentation and materials and all
other intellectual property rights, trade secrets, and other confidential
information, processes, and formulae used or otherwise necessary for the
ownership and use of the IP and the Services (the "Intellectual Property").
RESOURCES shall mean EP Group developers, programmers, data analysts or
related personnel, whether employed directly by EP Group or engaged as a
subcontractor.
SERVICES shall mean programming and development services relating to
existing and planned products and enhancements of FirePond or FirePond's
products, including both existing IP and IP provided by EP Group under this
Agreement.
TERM shall mean three (3) years from the date first above written.
2. SCOPE OF SERVICES; COMPENSATION. All Services provided by EP Group shall be
subject to this Agreement, and compensated by SOFT OS as general contractor,
unless otherwise agreed upon by both parties in writing.
EP Group are to provide at least FirePond fifty (50) qualified
developer Resources to expedite the realization of FirePond's product line,
including Code. EP Group and FirePond are to manage the development of the fifty
developer Resources. EP Group is to source the best developer Resources from
it's Resources of between seventy and eighty developers that fit the skill set
required for the development of FirePond's product line and Code. EP Group may
at times be required to recruit developers from alternate sources available to
EP Group in order to provide the developer Resource with the right skill set for
the development of FirePond's product line and Code. EP Group shall work
directly with FirePond's Executive Vice President of Research and Development to
facilitate and implement FirePond's product development plans. The Services may
be described more specifically in statements of work as a guide for the EP
Group, but it is the purpose of this Agreement to use EP Group Resources as
required by FirePond. Except of such subsidiaries or affiliates, EP Group may
not subcontract the Services without FirePond's prior written consent.
3. CONFIDENTIAL INFORMATION. Each party shall receive and hold all Confidential
Information in trust and confidence for the other. No party may use any
Confidential Information except as authorized by the other party under this
Agreement and only for the benefit of other party. Each party may disclose
Confidential Information only to those employees of the other party who have a
"need to know" the same in order to help EP Group perform the Services and who
are legally bound to maintain the confidentiality of the Confidential
Information.
Each party shall be responsible for the safekeeping of all materials
and media containing Confidential Information disclosed by one to the other
and shall account for such materials and media at the disclosing party's
request. EP Group will take reasonable safeguards to protect
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FirePond's intellectual property rights in foreign jurisdictions to which
FirePond Software, Tools or Documentation or other confidential information
is used or distributed and EP Group will remain liable for any act or
omission that results in damages suffered or incurred by FirePond arising out
of or related to any failure by EP Group to take reasonable safeguards to
protect FirePond's intellectual property rights.
Upon termination of all or any relevant Services, each shall deliver to
the other or destroy (as requested by the discloser) all materials and media
containing Confidential Information (including all copies and extracts thereof).
The receiving party shall certify its compliance with such obligation at the
discloser's request.
The foregoing confidentiality obligations shall remain in effect until
five (5) years after any relevant Services are completed or terminated and the
receiving party has delivered to the discloser or destroyed the materials and
media containing Confidential Information associated with such Services.
4. RIGHTS IN DELIVERABLES. All Deliverables shall be deemed to be works
made for hire and shall belong exclusively to FirePond and its designees. If by
operation of law any of the Deliverables, including all related property rights,
including by way of example and not limitation, all copyrights and applications
therefor, industrial designs, moral rights, patents and applications therefor,
trade secrets, confidential information, intellectual property rights and all
other rights of whatever nature or kind, and are not owned in their entirety by
FirePond automatically upon their creation, then EP Group agrees to assign, and
hereby assigns, to FirePond and its designees the ownership of such
Deliverables, including all related property rights to the broadest extent
possible to vest ownership in FirePond.
FirePond may obtain and hold in its own name copyrights, registrations,
and other property protection that may be available in the Deliverables. EP
Group agrees to provide any assistance required to perfect such protection.
EP Group hereby further agrees and grants FirePond (as an exception to
the transfer and assignment provided in the first paragraph of this Section) an
irrevocable, nonexclusive, worldwide, royalty-free right and license to use,
execute, reproduce, display, perform, and distribute (internally and externally)
copies of, and prepare derivative works based upon, such IP materials, and the
right to authorize others to do any of the foregoing, and to in all other ways
exploit such IP. Such grant applies to any preexisting EP Group owned IP
materials or IP which EP Group may have the right to license to FirePond as part
of the Deliverables, provided they are owned or licensable without restriction
by EP Group. To the extent that preexisting materials owned or licensed by EP
Group are included in the Deliverables, EP Group shall identify any such
materials prior to commencement of the Services involving such materials. To the
extent of any such preexisting IP materials, EP Group represents and warrants
that there are no third party rights in and to such preexisting IP materials. EP
Group agrees to take sure further action and execute and deliver such further
agreements or other instruments as FirePond may reasonably request to give
effect to the ownership and license provisions of Section 4 of this Agreement.
It is understood that this Agreement does not grant either party any right or
interest with respect to the other party's business name trademark or trade
name, and neither party shall refer to this Agreement or the Services in
publicity or advertising without the other party's prior written consent.
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Deliverables shall be defined on a Specification/Project Statement as
determined by FirePond and EP Group from time to time.
5. CONTINUED EP GROUP BUSINESS. EP Group has certain business clients,
including Samsung, Bally Shoes, Colgate and Fubu. These businesses comprise
custom software. EP Group shall continue to have the right to service these
business accounts for EP Group's benefit, and to dedicate EP Group Resources
currently working on these clients with the guidance and approval of FirePond as
regards assignment of the Resources and timing to address these services. The
intent of the parties is to optimize the allocation of EP Group Resources to
FirePond projects and business, minimize distraction of the EP Group whose
principal focus shall be the business of FirePond, and otherwise continue the on
going business of EP Group in an orderly fashion. It is the intent of the
parties that the noncompetitive custom computer services for these customers,
and additional customers desiring noncompetitive custom computer programming
services may be obtained from the EP Group. Where FirePond products suit these
customers' requirements, FirePond products shall first be offered to these
customers by the EP Group. The EP Group shall seek appropriate personnel to
continue such noncompetitive custom software business, to xxxxxx the growth of
the Continued EP Group Business and to assume the management currently serviced
by the EP Group. FirePond and its employees shall not materially participate in
the Continued EP Group Business, other than to manage such Resources for the
benefit of FirePond. FirePond shall have the right to solicit business from all
EP Group clients on FirePond's sole account without restriction during the term
of the Agreement. No new agreements will be entered into with these accounts
without the consent of FirePond. The income earned by EP Group for continued
business shall exclusively belong to EP Group EP Group shall remain independent,
but may not compete with FirePond as expressed in Section 8 hereof.
6. DISCONTINUED EP GROUP BUSINESS. It is understood that EP Group has
certain additional service agreements with third parties such as Parametric and
SAP. The nature of these service agreements present a conflict or competitive
interest or may not fit within the goals of FirePond. In consideration of the
consideration paid to EP Group by SOFT OS under this Agreement, EP Group agrees
to engage in a wind down strategy whereby EP Group shall cease rendering
services to all such third parties other than as set forth above in Section 5
"Continued EP Group Business". This disengagement shall be performed in such
manner as to satisfy all obligations to these customers under the terms of the
agreements with these respective customers. EP Resources shall be reallocated to
FirePond projects or "Continued EP and EPAM Business" at the earliest instance.
No new agreements will be entered into with these accounts without the consent
of FirePond.
7. ASSIGNMENT OF RESOURCES. EP Group shall maintain current business
arrangements with all EP Group Resources, subject to assignment of the contracts
of engagement of all EP Group Resources to either FirePond, Inc. or an entity or
entities controlled by FirePond, Inc. at FirePond's option. It is the
understanding of EP Group that FirePond may establish an entity to which EP
Group will assign and transfer Resources to such FirePond controlled entity in
Minsk, Belarus. It is the understanding of EP Group that FirePond wants a
portion of the fifty (50) Resource developers required to fulfill the terms of
the Agreement to be transferred to the United States. In this case all Resource
developers being transferred to the United States are to become employees of
FirePond. FirePond understands there is a legal process required by the
Immigration and Naturalization Services of the United States (INS) that may take
several months
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to accomplish the transfer of employees from EP Group to FirePond. At the same
time some EP Group Resources have been transferred already (or have the rights
to be transferred) to the United States and have H-1 and L-1 Visas issued
through EP Group. It is understood that for some intermediate period such United
States based Resources may work as a FirePond subcontractors in the United
States via EP Group. Subcontractor Resources assigned within the United States
shall be invoiced by SOFT OS at the EP Group cost. EP Group shall prepare a
schedule of such Resources and cost therefore as soon as practicable. EP Group
shall use best efforts to recruit and maintain relationships with all Resources
after assignment and shall obtain agreements of exclusive service for a period
of two (2) years to FirePond or entities controlled by FirePond as contemplated
by this Agreement.
8. NONCOMPETITION.
(a) FIREPOND. For purposes of this Section 8 of this Agreement, all references
to the "FirePond" will be deemed to include the FirePond, Inc. and its direct or
indirect subsidiaries and affiliates.
(b) CONFLICTING PRODUCT. As used in this Agreement, a "Conflicting Product"
means any computer program, product, process, system, or service of any person
or organization other than FirePond, in existence or under development, which is
the same as, or similar to, or competes with a computer program, product,
process, system or service marketed or under development by the Company at any
time during the Term of this Agreement.
(c) CONFLICTING ORGANIZATION. As used in this Agreement, a "Conflicting
Organization" means any person or organization other than FirePond
which is engaged in or is about to become engaged in the design,
research, development, production, marketing, distribution, leasing,
licensing, selling, or servicing of a Conflicting Product, including
without limitation and by way of example only, the persons or
organizations listed on Schedule Conflicting Organizations, attached
hereto. To the extent an organization is listed which has multiple
divisions or business units, e.g., Oracle, Conflicting Organization
shall not include such non Sales Force Automation/technology enabled
customer relationship divisions or business units, provided no
assistance is offered or rendered by a party to any part of such
organization relating to Sales Force Automation/technology enabled
customer relationship products or services, e.g. by way of example, EP
Group may provide services to Oracle in non Sales Force Automation
applications. Directly compete means licensing or selling software and
services within the Sales Force Automation and technology enabled
customer relationship spaces as such terms are commonly known in the
software industry.
SOFT OS and the EP Group understand that the restrictions set forth in this
Section 8 are intended to protect FirePond's legitimate interest in its
Confidential Information, business interests, and customer
relationships and goodwill, and agree that such restrictions are
necessary, reasonable and appropriate for this purpose. To the extent
EP Group utilizes further subcontractor Resources, such persons shall
execute the attached Agreement Regarding Inventions, Confidentiality
and Non-competition.
Solely with respect to the EP Group, during the Term of this Agreement up to
termination of this Agreement and for one (1) year thereafter, (the
"Non-competition Periods"), EP and/or EPAM shall not, directly or
indirectly, whether as owner, partner, shareholder, director, officer,
consultant, agent, employee, co-venturer or otherwise: (a) participate
in, invest in, organize or assist in organizing, work for or contract
with, any Conflicting Organization; or (b) sell or assist in the
design, development, manufacture, licensing, sale or support of any
Conflicting Product, or (c) solicit FirePond customers, disparage
FirePond, or hire or solicit to hire any FirePond contractors
(including Resources who have been engaged by or have worked on any
FirePond developments,
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products or services) or employees, whether for themselves or on behalf
of any third party, or (d) use FirePond confidential information. EP
Group understand that the restrictions set forth in this Section 8 are
intended to protect FirePond's legitimate interest in its Confidential
Information, business interests, and customer relationships and
goodwill, and agree that such restrictions are necessary, reasonable
and appropriate for this purpose.
Solely with respect to FirePond, during the Term of this Agreement up to
termination of this Agreement and for one (1) year thereafter, (the
"Non-competition Periods), EP Group and FirePond agree that FirePond
may pursue all business interests except:
1. FirePond shall not solicit to hire any EP Group employees or Resources,
or attempt or assist in diverting such persons to any third party.
2. FirePond shall not use EP Group confidential information not licensed
hereunder.
9. GENERAL PROVISIONS.
NO RESTRICTIONS. Each party warrants that it is and will remain free of any
obligations and restrictions that would interfere or be inconsistent with its
performance of this Agreement. EP Group shall defend, indemnify and hold
FirePond harmless from all claims and actions of third parties, including
reasonable attorney's fees, relating to the failure of EP Group to perform this
Agreement.
FORCE MAJEURE. Neither SOFT OS, FirePond nor EP Group shall be deemed to be in
default of any provision of this Agreement for any failure in performance
resulting from acts or events beyond the reasonable control of such person,
provided such interruption does not extend beyond ninety (90 days) in which case
either party may terminate this Agreement for convenience and all obligations
capable of proration shall be pro rated.
NO WAIVER. If any person should waive any breach of any provision of this
Agreement, it shall not thereby be deemed to have waived any preceding or
succeeding breach of the same or any other provision hereof.
SEVERABILITY. In the event that any provision of this Agreement is determined by
any court of competent jurisdiction to be unenforceable by reason of excessive
scope as to geographic, temporal or functional coverage, such provision will be
deemed to extend only over the maximum geographic, temporal and functional scope
as to which it may be enforceable.
AGREEMENT BINDING/ENTIRE AGREEMENT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. This Agreement and each Attachment or Schedule
hereto constitute the complete and exclusive statement of the agreement between
the parties, and all previous representations, discussions, and writings are
merged in, and superseded by, this Agreement. Only a writing signed by the
parties may modify this Agreement. The provisions of the base Agreement shall
prevail over any conflict with any Attachment or Schedule.
RIGHTS TO INJUNCTIVE RELIEF. The parties acknowledge that remedies at law may be
inadequate to provide the respective parties with full compensation in the event
of a material breach, and that the non-breaching party shall therefore be
entitled to seek injunctive relief as a remedy in the event of any such material
breach.
GOVERNING LAW. This Agreement shall be exclusively governed by and construed
under the law of the State of Minnesota without reference to its conflicts of
law principles. Except as
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otherwise provided in the Agreement, any legal action or suit related to this
Agreement shall be brought exclusively in the courts of Minnesota. Both parties
agree that the courts of Minnesota are a convenient forum for the resolution of
disputes.
NOTICES. All notices or reports which are required or may be given pursuant to
this Agreement shall be in writing, delivered by mail, courier or personally and
shall be deemed duly given when delivered to the respective executive offices of
FirePond and EP Group at the addresses first set forth above.
INDEPENDENT CONTRACTORS. The relationship of FirePond and EP Group established
by this Agreement is that of independent sub contractors. Each party is free to
determine its own business practices, except as otherwise provided herein.
THIRD PARTY BENEFICIARIES. FirePond has subsidiaries and affiliates, including
without limitation for example FirePond (UK) Ltd., and may add additional
subsidiaries and affiliates during the Term. EP Group acknowledge and agree that
such subsidiaries and affiliates shall be third party beneficiaries of this
Agreement.
ASSIGNMENT. FirePond may assign this Agreement to any successor in FirePond's
interest, or to any subsidiary or affiliate.
SURVIVAL. The provisions of Sections 1, 3, 4, 5, 6, 8, and 9 shall survive
termination of this Agreement for any reason.
Acknowledged and Agreed
SOFT OS
/s/ Xxxxxxx Xxxxxx
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EPGROUP
EFFECTIVE PROGRAMMING
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Partner and CEO
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Date: 1/23/99
--------------------------------
EPAM SYSTEMS, INC. AND
EPAM SYSTEMS, LTD.
By: /s/ Xxxxxxx Xxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxx
--------------------------------
Title: Partner
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Date: 1/12/99
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FIREPOND CONFIDENTIAL AND PROPRIETARY
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EXHIBIT 10.7
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FIREPOND INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: General Counsel/Secretary
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Date: 1/12/99
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FIREPOND CONFIDENTIAL AND PROPRIETARY
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