Exhibit 10(by)
MASTER DISTRIBUTOR AGREEMENT
For Puerto Rico and The Caribbean
Master Distributor Agreement, dated as of October 24, 2002 ("Agreement") between
Artera Group, Inc., a Delaware corporation having a place of business at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Artera"), and Spyder Technologies Group,
LLC, a Connecticut limited liability company having a place of business at ▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, a Federal Employer Identification Number of
▇▇-▇▇▇▇▇▇▇, a primary telephone number of ▇▇▇-▇▇▇-▇▇▇▇ and a primary World Wide
Web site of ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ ("Master Distributor").
In consideration of the mutual promises contained in this Agreement, Artera and
Master Distributor hereby agree as follows:
1. Duties and Rights of Master Distributor.
(a) Master Distributor shall seek out and find resellers for Artera's "Artera
Turbo" service (the "Service") in the Territory (as defined in Schedule A)
as more fully described in this Agreement. Master Distributor shall
describe the Service to prospective resellers in the Territory, make
presentations about the Service to such resellers, facilitate the
negotiation and execution of agreements between Artera and such resellers
and, if such agreements are reached, maintain Artera's business
relationships with such resellers. Master Distributor shall be responsible
for obtaining sufficient knowledge about the Service to enable Master
Distributor to describe the Service accurately and otherwise to perform its
duties under this Agreement.
(b) Master Distributor shall be responsible for providing training to all
resellers in the Territory, such that those resellers are able to provide
level 1 support to their customers as described in Schedule B. For
resellers of Master Distributor that cannot or do not provide such level 1
support to their customers, Master Distributor will provide such level 1
support to those customers. In all cases, Master Distributor will be
responsible for providing level 2 support (i.e., support pertaining to more
detailed, Service-specific problems or issues) to all of its resellers, and
their customers, in the Territory. Artera shall be responsible for all
level 3 support (i.e., software bug fixes).
(c) Master Distributor shall make available such time as Master Distributor, in
its sole discretion, deems appropriate for the performance of its duties
under this Agreement. Master Distributor may perform similar services for
other companies during the term of this Agreement, except that Master
Distributor may not do so for companies whose products or services directly
compete with the Service.
(d) Master Distributor may solicit all Targets (as defined in Schedule C) for
the Service. Master Distributor will report such Targets that are active
prospects for the Service to Artera each month.
(e) For sixteen months after the date of this Agreement, Master Distributor's
right to solicit Targets in the Territory for the Service shall be
exclusive. Thereafter, if Master Distributor has failed to achieve a Goal
(as defined in Schedule D) for any twelve-month period (including months
five through sixteen of this Agreement), Artera may at any time, upon 15
days' prior written notice to Master Distributor, irrevocably convert all
of Master Distributor's rights under this Agreement to non-exclusive
rights.
(f) In connection with the performance of its duties under this Agreement,
Master Distributor shall have the right to use and refer to all trademarks
and service marks associated with the Service, including but not limited to
"Artera Turbo." Except for such right, however, such trademarks and service
marks shall remain the sole property of Artera.
(g) In performing its duties and exercising its rights under this Agreement,
Master Distributor shall, at its own expense, comply with all applicable
laws, including but not limited to (i) the laws of all jurisdictions within
the Territory as they pertain to the sale, distribution and use of the
Service; and (ii) all import and export laws of the United States and such
other jurisdictions as they pertain to the distribution of the Service as
contemplated by this Agreement.
2. Term and Termination.
(a) The initial term of this Agreement shall commence as of the date hereof
and, unless terminated in accordance with Section 2(b) hereof, shall
continue for a period of five years and four months. Thereafter, the term
shall automatically renew for successive twelve-month periods unless one
party gives the other party 30 days' prior written notice that this
Agreement shall terminate as of the end of the then current term.
(b) This Agreement may be terminated by either party, upon 30 days' prior
written notice to the other party, for the material breach of this
Agreement by the other party or for the willful misconduct or gross
negligence of the other party in the course of performing its duties under
this Agreement (such material breach, willful misconduct or gross
negligence being deemed "Cause"), if such breach is not cured and such
misconduct or gross negligence halted by the end of such 30-day period. In
addition, this Agreement may be terminated by Artera at any time, upon 30
days' prior written notice to Master Distributor, if Master Distributor
fails to achieve fifty percent (50%) of the applicable Goal for any
twelve-month period as described in Schedule D.
(c) Upon the expiration or any termination of this Agreement, the obligations
of the parties under this Agreement shall cease as of termination, except
(i) obligations that accrued prior to termination; (ii) if the termination
was not by Artera for Cause, Master Distributor shall receive commissions
as described in Section 3(c) hereof; and (iii) as otherwise expressly
provided in this Agreement.
3. Compensation.
(a) As sole compensation for the services provided under this Agreement, Artera
shall pay Master Distributor a commission equal to fifty percent (50%) of
the Gross Revenues (as defined below) actually received by Artera for the
Service during the term of this Agreement from or through resellers secured
by Master Distributor in the Territory. For purposes hereof, "Gross
Revenues" shall mean monies received by Artera less sales, use, excise or
similar taxes. Commissions to Master Distributor shall be payable twice per
calendar month: on the 15th day of the month for monies received by Artera
from the 25th day of the previous month through the 10th day of the current
month, and on the 30th day of the month for monies received by Artera from
the 11th day of the current month through the 24th day of the current
month. Payments shall be wired to an account specified by Spyder. Master
Distributor shall be responsible for all costs of sales and marketing
incurred in connection with the distribution of the Service under this
Agreement.
(b) Master Distributor will remit any payments due to its Service resellers in
the Territory by the later of (i) the due date therefor under the agreement
between Master Distributor and such reseller and (ii) seven days after
receipt of the associated funds from Artera. If a payment obligation of
Master Distributor to a reseller that is documented by such reseller is not
paid by the applicable date above and such failure is not cured by Master
Distributor within seven days after written notice thereof from Artera,
Artera may directly remit the late payment and all future payments (whether
late or not) documented by such reseller as being due from Master
Distributor, and Artera may set off such payments against commissions due
to Master Distributor under this Agreement. If, by the process above,
Artera's right to remit a payment to a reseller and make the related setoff
is triggered with respect to three or more resellers in any consecutive
three-month period, Artera shall have such right to remit and set off with
respect to all of Master Distributor's resellers.
(c) Following the expiration or any termination of this Agreement other than a
termination by Artera for Cause, Master Distributor shall be entitled to
receive commissions as described above with respect to Gross Revenues
actually received by Artera for the Service from or through resellers
secured by Master Distributor in the Territory prior to the date of
expiration or termination; provided, however, that if Master Distributor
elects to discontinue provision of (or responsibility for) support after
such expiration or termination, its commission shall be reduced as follows:
(i) for discontinuing level 1 support, the reduction is ten percent (10%)
of Gross Revenues; and (ii) for discontinuing level 2 support, the
reduction is a further five percent (5%) of Gross Revenues. For any support
services Master Distributor elects to discontinue under the foregoing
provision, Artera shall have the right to assume or make third party
arrangements for provision of such services.
4. Expenses. All expenses incurred by Master Distributor in performing its
duties under this Agreement shall be the sole -----------------
responsibility of Master Distributor unless otherwise agreed to in advance
in writing by Artera.
5. Confidentiality. Simultaneously with their execution of this Agreement, the
parties hereto shall execute a Non-Disclosure Agreement substantially in
the form of Schedule E.
6. Notice. All notices under this Agreement shall be in writing and shall be
deemed duly given upon delivery by hand, by recognized commercial courier,
by fax or by certified mail (return receipt requested), in each case with
postage or delivery charges pre-paid, as follows:
If to Artera: If to Master Distributor:
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Artera Group, Inc. Spyder Technologies Group, LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: President
with a copy to:
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General Counsel
Artera Group, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
7. Indemnification, Insurance and Limitation of Liability. Each party hereto
shall indemnify and hold harmless the other party, such other party's
affiliates, and the officers, directors, employees, agents and
representatives of all thereof from and against any and all claims,
damages, actions, costs and expenses (including reasonable attorneys' fees)
arising out of or relating to a breach by such party of any of its
representations, warranties or undertakings set forth in this Agreement or
arising out of or relating to such party's intentionally wrongful or
grossly negligent conduct in connection with this Agreement or such party's
performance hereunder. In the event of a claim for which indemnification is
to be sought hereunder, the party to be indemnified shall provide prompt
written notice of such claim to the other party, shall allow the other
party to control the defense of such claim and shall cooperate with the
other party in conducting such defense. Each party shall at all times
during the term of this Agreement maintain such insurance coverage, if any,
that is commercially reasonable in light of the nature, volume and location
of such party's business activities in connection with this Agreement. In
no event shall either party be liable to the other or to any third party
for incidental, special, punitive or consequential damages (including but
not limited to lost profits) relating to this Agreement.
8. Miscellaneous.
(a) Any provision of this Agreement that is prohibited or held to be void or
unenforceable shall be ineffective to the extent of such prohibition or
unenforceability, without invalidating the remaining provisions of this
Agreement.
(b) This Agreement shall bind and inure to the benefit of and be enforceable by
the parties hereto and their respective permitted successors and assigns.
Neither party may assign this Agreement nor any rights or obligations
hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld.
(c) No term or provision of this Agreement may be waived or modified unless
such waiver or modification is in writing and signed by the party against
whom such waiver or modification is sought to be enforced. No waiver of any
breach of any provision of this Agreement shall constitute a waiver of any
prior, concurrent or subsequent breach of the same or any other provision
hereof.
(d) Master Distributor shall be considered an independent contractor to Artera,
and nothing in this Agreement shall be construed as creating an employment,
agency, partnership or joint venture relationship between the parties.
(e) No provision of this Agreement shall be interpreted against a party solely
because such party or its attorney drafted such provision.
(f) Neither party shall be deemed in breach of this Agreement to the extent
that performance of its obligations is prevented or delayed by reason of
any act of God, fire, natural disaster, accident, riot, act of government,
shortage of materials or supplies, failure of transportation or
communication, third party nonperformance (including, without limitation,
failure of performance by common carriers, interexchange carriers and local
exchange carriers) or any other cause beyond such party's reasonable
control.
(g) This Agreement shall be construed in accordance with the laws of the State
of Connecticut, U.S.A., without regard to the principles of conflicts of
laws thereof.
(h) Jurisdiction for any action under this Agreement shall lie solely in the
Federal or state courts located in the State of Connecticut, and venue in
any such action shall be proper only therein.
(i) Except as may be expressly set forth herein, this Agreement constitutes the
entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior and contemporaneous written or oral
agreements or communications between such parties with respect to such
subject matter.
IN WITNESS WHEREOF, Artera and Master Distributor have duly executed this
Agreement as of the date first above written.
ARTERA GROUP, INC. SPYDER TECHNOLOGIES GROUP, LLC
By: /s/ ▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Treasurer President
Schedule A
TERRITORY
The "Territory" is defined as the islands located in the Caribbean and Southern
Atlantic as listed below (it is intended that the list include all islands
associated with those listed below, many of which are too small to list
separately):
Anguilla
Antigua
Aruba
Bahamas
Barbados
Bonaire
British Virgin Islands
Cayman Islands
Curacao
Dominica
Dominican Republic
Grenada
Guadeloupe
Guyana
Haiti
Jamaica
Martinique
Puerto Rico 1
Saba
St. Barthelemy
St. Eustatius
St. Kitts
St. Lucia
St. ▇▇▇▇▇▇ (both parts)
St. ▇▇▇▇▇▇▇ and The Grenadines
Trinidad and Tobago
Turks and Caicos
U.S. Virgin Islands 2
1 Excluding all Incumbent Local Exchange Carriers ("ILECs") other than Puerto
Rico Tel, and exluding all Rural Local Exchange Carriers ("RLECs").
2 Excluding all ILECs and RLECs.
Schedule B
LEVEL 1 SUPPORT
The purpose of Level 1 support is to assist the End User in the basic
installation and usage of the Service. This can include answering some general
questions to help the End User understand what the Service is and how it
provides a benefit to them. While these questions may be more "marketing" in
nature, they will allow the End User to have a better overall experience with
the Service and the support services relating thereto. Level 1 support is
responsible for assisting the End User with the items listed below. It is
presumed that this list will be refined as experience is gained and the Service
evolves over time.
1. Establishing an Internet connection (typically via Windows Dial-Up
Networking).
2. Launching a Web browser and surfing to various Web sites on the Internet.
3. Answering basic questions about the system configuration needed for running
the Service (i.e. Windows version, memory, hard disk space) as documented
on Artera's Web site.
4. Assisting the customer in downloading the Service software.
5. Running the Service's setup program and installing it to their PC.
6. Launching/running the Service.
7. Answering basic questions about navigating within the Service's user
interface.
8. Answering basic questions about, and showing the End User, how to know if
the Service is working. This includes pointing out the Network View,
Activity View and SpeedBar.
9. Diagnosing that the End User's browser is actually forwarding its requests
to Artera. This is accomplished by reviewing the Activity View and the
browser's proxy settings.
10. Assisting an End User who is using a dialer other than Windows Dial-Up
Networking (e.g., Juno or NetZero).
11. Assisting an End User who is using a browser other than Internet Explorer.
This will require telling the End User how manually to set the browser's
proxy settings.
12. Verifying that the End User has an Artera data center connection online.
13. Assisting the End User in how to uninstall the Service.
14. Helping End Users to understand what the Service's Firewall is and how to
disable it if they desire. The End User should be told that they should not
run the Service's Firewall with any other firewall. The End User should be
helped to understand the ramifications of disabling the Service's Firewall.
15. Assisting the End User in opening additional ports in the Service's
Firewall.
16. Assisting the End User in adding sites into the Service's Site Blocking
list.
17. Assisting the End User in adding sites into the Service's Ad Blocking list.
18. Helping End Users to understand how Ad Blocking removes ads and replaces
them with "place holder" graphics. This can result in what appears to be
"missing" elements on the page. The End User can be informed of how to turn
off Ad Blocking if they do not like this behavior (understanding that this
will reduce the speed benefits of the Service).
19. Helping End Users to understand how to change the image quality within the
Service. This includes explaining how to refresh the page once quality has
been set to "Best Quality." The End User should be informed of how to
revert back to "Best Speed" image quality setting. The End User should
understand that if they do not revert back to "Best Speed," this will
reduce the speed benefits of the Service.
20. Telling the End User how to get to the Artera Web site.
21. Explaining to the End User what a cache is, and how to adjust its settings
within the Service.
22. Explaining to the End User what settings in their browser are changed when
the Service is running. This includes the change to the proxy settings, the
number of requests that the browser will issue at one time and the
disablement of the browser's cache. Importantly, the End User should be
told that when the Service is not running, or is uninstalled, these
settings in the browser are changed back to their original values.
23. Answering questions about obtaining (i.e., downloading) Service product
updates and installing them.
Schedule C
TARGETS
The "Targets" are all resellers whose principal place of business and principal
source of business is located within the Territory. Those resellers that operate
within the Territory, but whose principal place of business or principal source
of business is located outside the Territory, are specifically excluded unless
agreed, in each case, in advance in writing by Artera.
Schedule D
GOALS
The "Goals" are defined as the following:
1. Ramp-up period:
For the first four months after the date of this Agreement, there are no
specific requirements.
2. For the first twelve months thereafter:
Master Distributor will secure Five Hundred Thousand Dollars ($500,000.00) in
Gross Revenues for Artera from sales of the Service in the Territory.
3. For succeeding twelve-month periods:
Master Distributor will secure Gross Revenues for Artera from sales of the
Service in the Territory that are twenty percent (20%) higher than the required
level for the preceding twelve months.
Schedule E
FORM OF
NON-DISCLOSURE AGREEMENT
ARTERA GROUP, INC.
Non-Disclosure Agreement, dated as of October ___, 2002, between Artera Group,
Inc., for itself and its subsidiaries, parent company and affiliates
(collectively, "Artera"), and Spyder Technologies, LLC, (the "Company").
WHEREAS, the parties hereto wish to consider a possible business transaction,
relationship or arrangement between them, in connection with which it may be
necessary or desirable for such parties to exchange technical, scientific,
marketing, business or other confidential or proprietary information.
NOW, THEREFORE, in consideration of these premises, and of the mutual promises
and covenants contained herein, the parties hereto agree as follows:
1. Definitions.
(a) "Disclosing Party" shall mean the party hereto disclosing information to
the other party hereto.
(b) "Receiving Party" shall mean the party hereto receiving information from
the other party hereto.
(c) "Confidential Information" shall mean information disclosed by or on behalf
of one party hereto to the other party hereto that relates in any way to
the Disclosing Party's business, operations, products, processes,
methodologies, formulas, plans, intentions, projections, know-how,
intellectual property rights, trade secrets, market opportunities,
suppliers, customers, marketing activities, sales, software, hardware,
computer or telecommunications systems, costs, prices, usage rates,
records, finances or personnel, whether expressed or disclosed in writing,
electronically, orally or by any other means, and whether or not marked
"confidential" by the Disclosing Party. Notwithstanding the foregoing,
"Confidential Information" shall not include information that (i) is or
becomes generally available to the public through no fault of the Receiving
Party, (ii) was known to the Receiving Party prior to disclosure by the
Disclosing Party, (iii) was independently developed by the Receiving Party
without reliance on Confidential Information or (iv) was lawfully received
by the Receiving Party from a third party without breach of any obligation
to the Disclosing Party by such third party.
2. Disclosure of Confidential Information. During the term of this Agreement,
each party hereto may disclose Confidential Information to the other party.
Neither party has any obligation to disclose or accept Confidential
Information under this Agreement.
3. Obligation of Confidentiality. Confidential Information received by a party
hereunder shall forever be kept in confidence by the Receiving Party. The
Receiving Party may reveal such Confidential Information only to its
officers, directors, employees, consultants, subcontractors or agents who
have a need to know such Confidential Information, and shall ensure that
such persons comply with all of the limitations set forth in this
Agreement. Without limiting the generality of the foregoing, the Receiving
Party shall exercise the same degree of care to preserve and safeguard the
Disclosing Party's Confidential Information as the Receiving Party
exercises with its own Confidential Information, which in no event shall be
less than reasonably prudent care.
4. Permitted Disclosures. The confidentiality obligations of this Agreement
shall not apply to the extent that disclosure of Confidential Information
by a Receiving Party (a) is required by law, (b) is ordered by a court or
administrative body of competent jurisdiction (where the party making such
disclosure has given the other party as much prior written notice of such
disclosure and as much opportunity to object to such order as is possible
under the circumstances) or (c) occurs with the Disclosing Party's prior
written consent in each instance.
5. Use of Confidential Information. During the period of confidentiality set
forth above, Confidential Information may be used by the Receiving Party
only in connection with actual or possible business transactions,
relationships or arrangements with the Disclosing Party. Without the
express written consent of the Disclosing Party in each instance, the
Receiving Party shall not disassemble, reverse engineer, re-engineer,
redesign, decrypt, decipher, reconstruct, re-orient, modify or alter any
Confidential Information of the Disclosing Party or any circuit design,
algorithm, logic or program code in any of the Disclosing Party's products,
models or prototypes that contain Confidential Information, or attempt any
of the foregoing.
6. Termination of Agreement. This Agreement shall be in effect from the date
hereof until the date as of which this Agreement is terminated by either
party via written notice to the other party; provided, however, that no
such written notice may be given that has an effective date prior to the
expiration or termination of the Master Distributor Agreement, dated as of
the date hereof, between Artera and the Company. Termination of this
Agreement shall not affect the rights and obligations of the parties set
forth herein with respect to Confidential Information supplied prior to
termination. Upon termination of this Agreement, or upon a written request
by the Disclosing Party at any time, all copies of Confidential Information
in the Receiving Party's possession shall be promptly returned to the
Disclosing Party or destroyed. Upon a written request by the Disclosing
Party, such return or destruction shall be certified by the Receiving
Party.
7. Effect of Agreement. Neither this Agreement nor any disclosure of
Confidential Information hereunder shall be deemed to (a) create any
partnership, joint venture, employment or agency relationship between the
parties, (b) bind either party to any business transaction, relationship or
arrangement between them (without a separate agreement therefor) or (c)
constitute a grant of any intellectual property or other right or license
in any Confidential Information by the Disclosing Party to the Receiving
Party.
8. Representations and Warranties. Each party represents and warrants to the
other that it has the right to make the disclosures made by it under this
Agreement. The Confidential Information disclosed under this Agreement is
delivered "as is." The Disclosing Party makes no representation or warranty
of any kind under this Agreement with respect to the accuracy of such
Confidential Information, its suitability for any particular use or the
non-infringement of any third party rights.
9. Remedies and Indemnification. Each party agrees that money damages would
not be a sufficient remedy for a breach of this Agreement by it and that,
upon such breach, in addition to all other remedies available under
applicable law, the other party shall be entitled to specific performance
and injunctive and other equitable relief as a remedy for such breach, and
each party waives any requirement for the securing or posting of any bond
in connection with such remedy. Each party shall indemnify and hold
harmless the other party and such other party's officers, directors,
employees, agents, consultants, subcontractors, representatives and
affiliates from and against any and all losses, liabilities, claims,
damages, actions, costs and expenses (including reasonable attorneys' fees)
arising out of or relating to a breach by such party of any of its
representations, warranties or undertakings set forth in this Agreement.
Anything contained in this Agreement to the contrary notwithstanding,
neither party hereto shall be liable to the other party for the other's
special, incidental, consequential damages, including lost profits, or for
any punitive damages, by reason of or in connection with a breach of this
Agreement.
10. Export Regulations. Each party hereto shall comply with all applicable
regulations of the United States Bureau of Export Administration of the
Department of Commerce (Title 15, Code of Federal Regulations, Sections 700
et seq.), as amended from time to time. Without limiting the generality of
the foregoing or of any other provision of this Agreement, neither party
shall export or re-export any Confidential Information received from the
other party to any person or entity if such export or re-export is
prohibited without a government license or authorization, if such license
or authorization shall not first have been obtained. The foregoing shall
survive the expiration or any termination of this Agreement.
11. Notices. All notices under this Agreement shall be in writing and shall be
deemed duly given upon delivery by hand, by recognized commercial courier,
by fax or by certified mail (return receipt requested), in each case with
postage or delivery charges pre-paid, as follows:
If to Artera: If to Master Distributor:
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Artera Group, Inc. Spyder Technologies Group, LLC
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: President
with a copy to:
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General Counsel
Artera Group, Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
12. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the laws of the State of Connecticut and the United States
as applicable to agreements made and performed wholly therein. Jurisdiction
for any action under this Agreement shall lie solely in the Federal or
state courts located in the State of Connecticut, and venue in any such
action shall be proper only therein. This Agreement contains the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes any and all prior or contemporaneous agreements,
communications or understandings between such parties. No modification or
addition to this Agreement shall be binding unless effected by a written
instrument signed by both parties hereto. This Agreement shall apply in
lieu of and notwithstanding any specific legend or statement associated
with any particular Confidential Information disclosed, and the duties of
the parties shall be determined exclusively by the terms and conditions
herein. If any provision of this Agreement is held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement,
and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein. Moreover, if any
provision of this Agreement is held to be excessively broad, such provision
shall be deemed limited or reduced to the extent necessary to make it
enforceable under application law. Neither party shall be deemed in breach
of this Agreement to the extent that performance of its obligations is
prevented by reason of any act of God, fire, natural disaster, accident,
riot or other event of force majeure beyond such party's reasonable
control. No provision of this Agreement shall be interpreted against a
party solely because such party or its attorney drafted such provision.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which shall constitute the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
SPYDER TECHNOLOGIES, LLC ARTERA GROUP, INC.
By: By:
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President Treasurer
