EXHIBIT 10.4
SHARED SERVICES AGREEMENT
by and between
VOYAGER INTERNET GROUP . COM
and
VOYAGER GROUP INC
Dated as of [ ], 2000
TABLE OF CONTENTS PAGE
Section 1. Definitions; Rules of Construction1
1.1 Definitions 1
1.2 Other Terms 3
1.3 Rules of Construction 3
Section 2. Term 5
Section 3. Performance of Services by VIGC 5
3.1 General 5
3.2 Standard of Care 5
3.3 Service Modifications 6
3.4 Compliance with Law 6
3.5 Audit 7
Section 4. Provision of VYGP Information 7
Section 5. Fees 7
5.1 General 7
5.2 Sales Taxes 8
5.3 License Fees 8
5.4 Cap on Fees 8
5.5 Unamortized Hardware and Software 8
Section 6. Invoicing and Payment 8
Section 7. Independence 9
Section 8. Non-exclusivity 9
Section 9. Confidentiality 10
9.1 VIGC Information 10
9.2 VYGP Information 10
9.3 Security 10
9.4 General 10
Section 10. Termination 11
10.1 Grounds for Termination 11
10.2 Procedures on Termination 12
10.3 Termination Costs 12
Section 11. Limitation of Liability and Remedy 12
11.1 Damages 12
11.2 VYGP's Exclusive Remedies 13
11.3 VIGC's Exclusive Remedies 13
11.4 Affiliates 14
Section 12. Force Majeure 14
Section 13. Assignment 14
13.1 Assignment with Consent 14
13.2 Assignment in Event of Acquisition 14
Section 14. Indemnification and Insurance 15
14.1 VIGC's Obligation 15
14.2 VYGP's Obligation 15
14.3 Third-Party Claims 15
(a) Control of Proceedings 16
(b) Settlement of Third-Party Claims By the Indemnified Person 17
14.4 Insurance 18
Section 15. Disputes 18
15.1 Agreement to Arbitrate 18
15.2 Escalation and Mediation 18
15.3 Procedures for Arbitration 19
15.4 Selection of Arbitrator 20
15.5 Hearings 20
15.6 Discovery and Certain Other Matters 21
15.7 Certain Additional Matters 22
15.8 Law Governing Arbitration Procedures 23
15.9 Choice of Forum 23
Section 16. Miscellaneous Provisions 23
16.1 Notice 23
16.2 Entire Agreement 23
16.3 Choice of Law 24
16.4 Amendment; Waiver 24
16.5 Severability 24
16.6 Relationship of the Parties 24
16.7 Survival 24
16.8 Counterparts 24
16.9 Records Retention 24
16.10 Beneficiaries 25
SHARED SERVICES AGREEMENT
This Agreement is made as of [ ], 2000 (the "Effective Date") by VOYAGER
INTERNET GROUP . COM NEVADA corporation ("VIGC"), and VYGP Corporation, a
Delaware corporation ("VYGP").
RECITALS
VIGC is planning to spin-off certain businesses by transferring those businesses
to VYGP (or its subsidiaries) and distributing all of the stock of VYGP to the
stockholders of VIGC as a dividend. As a result of the distribution of that
dividend, VIGC and VYGP, and their respective subsidiaries, will be separate and
independent corporations.
As a consequence of the foregoing contemplated actions, VYGP will acquire
business operations that have traditionally been supported by administrative
functions that will remain with VIGC after the spin-off. VIGC and VYGP agree
that it is advisable for VYGP to continue to receive administrative services
from VIGC.
AGREEMENT
In consideration of the mutual undertakings contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, VIGC and VYGP agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION.
1.1 Definitions. As used in this Agreement (including the Schedules hereto):
(i) "Action" shall mean any action, claim, suit, arbitration, inquiry, subpoena,
discovery request, proceeding or investigation by or before any court or grand
jury, any governmental or other regulatory or administrative entity, agency or
commission or any arbitration tribunal.
(ii) "Affiliate" shall mean any Person controlling, controlled by, or under
direct or indirect common control with a Party. For the purpose of this
definition, the term "control" means the power to direct the management of an
entity, directly or indirectly, whether solely through the ownership of voting
securities (as in the case of a subsidiary), by contract, or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
VYGP and VIGC shall not be deemed to be Affiliates of each other.
(iii) "Agreement" means this Shared Services Agreement dated as of January 1,
2000 including all Schedules attached hereto.
(iv) "Arbitration Act" shall mean the United States Arbitration Act, 9 U.S.C.
▇▇.▇▇. 1-14, as the same may be amended from time to time.
(v) "Change in Control" shall mean the acquisition by any individual, entity,
group or Person (as such term is defined in Section 13(d)(3) of the Exchange
Act), other than by a subsidiary or affiliated corporation of the relevant Party
or any employee benefit plan (including a trust forming part of such a plan)
maintained by the relevant Party or a subsidiary or affiliate thereof of
ownership of [50%] or more of either (i) the then outstanding shares of common
stock of the relevant Party or (ii) the combined voting power of the then
outstanding voting securities of the relevant Party entitled to vote generally
in the election of directors.
(vi) "Cost" whether used alone or as part of another defined term shall mean
cost as determined by VIGC in a manner substantially the same as the manner in
which VIGC determined such cost in the one-year period ending December 31, 1999.
(vii) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
(viii) "Fully Burdened Cost" shall mean all direct and indirect Costs including
allocable overhead (but excluding corporate overhead and return on equity
investment) allocable to the provision of any Service without regard to whether
the Service is provided to VYGP or to VIGC. The Fully Burdened Cost associated
with the provision of any Service shall include any Stay Bonus or Severance Pay
paid to any employee who, as of the Effective Date, was employed by VIGC in the
provision of that Service. As regards any individual employee, "Fully Burdened
Cost" shall include all direct Costs relating to that individual (including
their salary and accruals for incentive compensation, vacation, holiday,
insurance (medical, dental, vision, life, legal, short-term and long-term
disability, employee assistance program), workers compensation and 401k match
and FUI, SUI, OASDI and Medicare) and any Stay Bonus or Severance Pay paid as
well as that individual's proportionate share of all indirect Costs incurred in
the provision of the relevant Service, such individual's proportionate share to
be determined by dividing the total indirect Costs relating to the provision of
the relevant Service by the number of full-time equivalent employees employed by
the VIGC department providing the relevant Service.
(ix) "Governmental Authority" shall mean any foreign, federal, state, local or
other government, statutory or administrative authority, regulatory body or
commission or any court, tribunal or judicial or arbitral body.
(x) "Notice" shall mean notice given in accordance with Section 16.1.
(xi) "Party" shall mean either VIGC or VYGP.
(xii) "Person" shall mean an individual, corporation, partnership, Limited
Liability Company, unincorporated syndicate, unincorporated organization, trust,
trustee, executor, administrator or other legal representative, governmental
authority or agency, or any group of Persons acting in concert.
(xiii) "SEC" shall mean the Securities and Exchange Commission.
(xiv) "Service" shall mean each service generally described in Schedule 2,
performed in substantially the same manner and containing the same elements as
when such Service was provided to VIGC or
Affiliates of VIGC prior to the Effective Date, except as otherwise permitted
under Section 3.
(xv) "Term" shall mean the period of time provided in Section 2, including any
and all extensions thereof.
(xvi) "Transfer" shall mean any assignment, transfer, sale or other disposition
to a Person that is not an Affiliate of the Transferor, including any Transfer
by way of merger or consolidation or otherwise by operation of law.
1.2 Other Terms. Terms defined in other Sections of this Agreement will have the
meanings therein provided.
1.3 Rules of Construction.
(a) In this Agreement, unless a clear contrary intention appears:
(i) the singular number includes the plural number and vice versa;
(ii) reference to any Person includes such Person's successors and assigns but,
if applicable, only if such successors and assigns are permitted by this
Agreement;
(iii) reference to any gender includes the other gender;
(iv) reference to any Section or Schedule means such Section of this Agreement
or such Schedule to this Agreement, as the case may be, and references in any
Section or definition to any clause means such clause of such Section or
definition;
(v) "herein", "hereunder", "hereof", "hereto," and words of similar import shall
be deemed references to this Agreement as a whole and not to any particular
Section or other provision hereof or thereof;
(vi) "including" (and with correlative meaning "include") means including
without limiting the generality of any description preceding such term;
(vii) relative to the determination of any period of time, "from" means "from
and including", "to" means "to but excluding" and "through" means "through and
including";
(viii) reference to any law (including statutes and ordinances) means such law
as amended, modified, codified or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated thereunder;
(ix) accounting terms used herein shall have the meanings historically tribute
to them by VIGC and its subsidiaries based upon VIGC's internal financial
policies and procedures in effect prior to the spin-off described in the
recitals above;
(x) in the event of any conflict between the provisions of the body of this
Agreement and the
Schedules hereto, the provisions of the body of this Agreement shall control;
and
(xi) the headings contained in this Agreement have been inserted for convenience
of reference only, and are not to be used in construing this Agreement.
(b) This Agreement was drafted and negotiated by the Parties with the benefit of
legal representation, and any rule of construction or interpretation otherwise
requiring this Agreement to be construed or interpreted against either Party
shall not apply to any construction or interpretation hereof.
SECTION 2. TERM.
The initial Term of this Agreement shall begin on the Effective Date and, except
as otherwise provided in this Agreement, end at the end of the day on June 30,
2000. The Term may be extended for successive additional periods, subject to the
Parties agreeing upon the terms and conditions of such an extension. Any such
agreement to extend the term of this Agreement must be entered into at least 90
days in advance of the date on which this Agreement would otherwise naturally
terminate. Each Party may in its absolute discretion determine whether or not
the terms of any such proposed extension are acceptable and may refuse to agree
to any such extension for any reason whatsoever. Notwithstanding the above, VYGP
shall have access to VIGC's systems, reports, databases and other records, which
access shall not be unreasonably requested by VYGP or denied by VIGC, for 45
days after the date of the termination of this Agreement. Such access shall be
provided in order to allow VYGP to complete its financial accounting and
otherwise maintain its records for the period when this Agreement shall have
been in force.
SECTION 3. PERFORMANCE OF SERVICES BY VIGC.
3.1 General. From time to time, beginning on the Effective Date, VIGC will,
subject to Section 3.2(c), provide Services to VYGP (and to those Persons who
were, as of the Effective Date, VYGP Affiliates) on an "as needed" basis (as
determined by VYGP or its covered Affiliates). Services may be provided by VIGC
itself or VIGC may outsource the provision of the Services.
3.2 Standard of Care.
(a) VIGC will use (and will cause its Affiliates to use) commercially reasonable
efforts in the performance of its obligations hereunder and will do so with the
same degree of care, skill and prudence customarily exercised when engaged in
similar activities for itself and its Affiliates. VIGC will have no liability
with respect to the provision of services to VYGP hereunder in the absence of
gross negligence or willful misconduct. To the extent that any error or omission
in any Service is not caused by failure of VYGP or its Affiliates to conform to
VYGP's obligations under Section 4 or is not otherwise excused under Section 12
and correction thereof by reperformance or otherwise is practical, VIGC will
make such correction.
(b) VIGC makes no representations or warranties whatsoever, either express or
implied, to VYGP or any other Person that the Services provided hereunder are or
will be adequate and sufficient (as to quantity, quality or type) to meet the
needs (including any specifically identified needs) or any
objectives of VYGP or any such Person with respect to the conduct of the
business of VYGP or such Person.
(c) The proportionate share of each Service to which VYGP will be entitled will
be approximately equal to the proportionate share of that Service that was,
prior to the Effective Date, devoted to the businesses that VIGC is planning to
spin-off to GP. To the extent that VIGC's capacity to perform a Service is
diminished, be it by system failure, departure of personnel or any other factor
outside of the control of VIGC, the Services to which VYGP will be entitled will
be decreased proportionately.
(d) In performing its responsibilities hereunder, VIGC will accord VYGP and its
Affiliates the same priority under comparable circumstances as it provides
itself and its Affiliates. Without limiting the generality of the foregoing, in
the provision of Services under comparable circumstances VIGC and its Affiliates
will not discriminate against VYGP or any of its Affiliates solely because VYGP
or one of its Affiliates is the recipient of such Services.
(e) VIGC will use all reasonable efforts to provide Services at the same levels
of quality and efficiency as they have been provided to VIGC and its affiliates
prior to the Effective Date. VIGC shall give due consideration to any suggestion
by VYGP to improve performance but shall have no obligation to accept or
implement any such suggestion that it shall not, in its sole discretion, deem
advisable and in the best interests of VIGC.
3.3 Service Modifications.
(a) VIGC may reasonably supplement, modify, substitute or otherwise alter a
Service from time to time in a manner consistent with supplements,
modifications, substitutions or alterations made with respect to similar
services provided or otherwise made available by VIGC to itself or its
Affiliates; provided that no change which, in the good faith judgment of VIGC,
adversely affects the quality or availability of a Service or increases VYGP's
cost of using the Service (including any product thereof) in any material
respect, shall be made without the consent of VYGP. VIGC will give VYGP not less
than 90 days Notice, prior to the implementation of any change in a Service
that, in the good faith judgment of VIGC, may adversely affect the quality or
availability of a Service or increase the cost of using the Service in any
material respect.
(b) Without limiting the generality of the provisions of the preceding
subsection (a), VIGC will not make any changes in any Service which would
require VYGP to modify any bridge or other interface between VYGP facilities and
the point at which data is transmitted to such facilities, except when the costs
of such modification is less than $10,000, unless VYGP consents thereto.
Conversely, VIGC will not be obligated to make any change in a Service because
of changes VYGP makes in its facilities.
3.4 Compliance with Law.
In performing Services, VIGC will comply in all material respects with all laws,
rules and regulations that apply to the performance of the Services.
3.5 Audit. (a) Each of VIGC and VYGP may audit the other with respect to (i) the
performance of Services to ensure that adequate internal and administrative
controls and procedures are being employed, (ii) any Cost used to determine any
amounts payable hereunder, and (iii) any other matters reasonably required to
verify compliance with the terms of this Agreement. The Party requesting the
audit may use independent auditors, who may participate fully in such audit.
(b) In the event that an audit is proposed with respect to information which the
Party to be audited wishes not to disclose to the other Party ("Restricted
Information"), then on the written demand of the Party to be audited the
individuals conducting the audit with respect to Restricted Information will be
limited to the independent auditors of the Party requesting the audit. In such
event, the Party to be audited shall pay the costs of the independent auditors
conducting such audit, but only with respect to that portion of the audit
relating to Restricted Information. Such independent auditors shall enter into
an agreement with the Parties hereto, on terms that are agreeable to both
Parties hereto, under which such independent auditors shall agree to maintain
the confidentiality of the information obtained during the course of such audit
and establishing what information such auditors will be permitted to disclose to
report the results of any audit of Restricted Information to the Party
requesting the audit.
(c) Any such audit shall be conducted during regular business hours, in a manner
that does not interfere unreasonably with the operations of the Party being
audited. Such audits shall be conducted not more than once in any calendar
quarter. Subject to the foregoing limitations, any such audit shall be conducted
when requested by Notice given not less than 30 days prior to the commencement
of the audit.
SECTION 4. PROVISION OF VYGP INFORMATION.
To enable VIGC to provide the Services, VYGP will provide information, furnish
access to data and take such other action as is reasonably requested by VIGC.
SECTION 5. FEES.
5.1 General. The aggregate Fully Burdened Costs for the Services set forth in
Schedule 2 will be allocated on a Service- by-Service basis as between the
Parties according to the procedures set forth in Schedule 3.
5.2 Sales Taxes. VYGP shall pay, or reimburse VIGC for, the gross amount of any
present or future sales, use, excise, occupation, privilege, value-added,
gross-receipts or other similar tax (excluding any tax on net income, corporate
franchise tax or fee or any similar tax or fee) applicable to the fee, sale or
furnishing of any Service or to its use by VYGP.
5.3 License Fees. If VIGC reasonably concludes that it requires consent to
permit it to use any intellectual property for the provision of Services
hereunder that was not obtained prior to the Effective Date, VIGC will use
reasonable efforts to obtain such consent and the amounts paid to the licensor
shall b equitably allocated between the Parties. If any consent required to
permit VIGC to use any intellectual property for the provision of Services
hereunder
(irrespective of when obtained) requires periodic payments to the licensor, the
amount thereof shall be equitably allocated between the Parties. Allocations
pursuant to this Section 5.3 shall be based upon the amount of each Party's use
of the intellectual property for which the payment is made. If the Parties are
unable to agree to the allocation, the question shall be resolved in accordance
with Section 15.
5.4. Cap on Fees. Notwithstanding any other provision of this Agreement, fees
charged to VYGP under this Agreement shall not exceed 60% of the aggregate Fully
Burdened Cost of all of the Services.
[5.5 Unamortized Hardware and Software. Upon the termination of this Agreement,
VYGP shall make a one-time payment to VIGC to reflect its proportionate share of
the unamortized value of the hardware and software identified in Section V of
Schedule 1.]
SECTION 6. INVOICING AND PAYMENT.
VIGC will each month submit to VYGP for payment a statement of amounts due under
this Agreement. The statement will specify the charge for each of the Services
provided during the relevant month. Statements submitted other than after the
close of a fiscal quarter will be based on reasonable estimates of the amounts
due, and VIGC will perform a true-up at the end of the fiscal quarter. Each
statement will specify the nature of the Services provided and will contain or
be followed by such other supporting detail as VYGP may from time to time
reasonably request.
VYGP will pay or cause its Affiliates receiving the Services to pay all amounts
due pursuant to this Agreement within 30 days after the date of each such
statement hereunder. If any amounts due hereunder have not been received by the
due date, such overdue amounts shall bear interest from the due date at the rate
of 1% per month, or portion thereof, until received.
Either Party shall have the right to withhold any disputed amounts due hereunder
if such Party in good faith disputes the amount claimed by the other Party to be
due hereunder and such Party notifies the other Party of such dispute within 30
days after the date of the statement containing the disputed amount. The
foregoing right to withhold payment of disputed amounts shall be limited to
amounts disputed in good faith, and interest will accrue and be payable on the
net amount determined to be payable.
Neither payments made by VYGP nor the acceptance of payments by VIGC in the
amount or less than the amount shown on VIGC's statements shall be construed as
an acceptance or agreement with the amount so stated or the amount received,
respectively. Except as otherwise provided, either VYGP or VIGC may recover from
the other the amount of any overpayment or underpayment. Without limiting the
generality of the foregoing, VIGC may supplement any statement it renders for
less than the full amount to which it is entitled hereunder; provided that such
supplement is made within a reasonable time after the statement being
supplemented.
In addition to any other rights available to it at law or in equity, upon ten
days Notice to VYGP, VIGC may suspend the provision of any Services for which an
undisputed statement for provision
of Services hereunder from VIGC has not been satisfied within 20 days of its due
date until such statement has been satisfied.
SECTION 7. INDEPENDENCE.
All employees and representatives of VIGC providing Services to VYGP will be
deemed for purposes of all compensation and employee benefits to be employees or
representatives of VIGC (or its subcontractors) and not employees or
representatives of VYGP. In performing such services, such employees and
representatives will be under the direction, control and supervision of VIGC (or
its subcontractors) (and not of VYGP) and VIGC (or its subcontractors) will have
the sole right to exercise all authority with respect to the employment
(including termination of employment), assignment and compensation of such
employees and representatives.
SECTION 8. NONEXCLUSIVITY.
Nothing in this Agreement shall prevent VIGC from providing any Service to any
other Person. Nothing in this Agreement shall prevent VYGP from obtaining all or
any part of the Services from its own employees and facilities or from providers
other than VIGC.
SECTION 9. CONFIDENTIALITY.
9.1 VIGC Information. VYGP agrees to hold, and to use reasonable efforts to
cause its employees and representatives to hold, in confidence in a manner
consistent with VYGP's treatment of its own confidential information, all
information concerning VIGC reasonably understood to be confidential (i)
contained in any of the Schedules to this Agreement or otherwise received by
VYGP from VIGC after the Effective Date relating to the determination of the
fees and charges payable hereunder, (ii) obtained from VIGC by the use of any
access to VIGC data afforded by any connection between VYGP's systems and VIGC's
systems maintained in connection with the provision of Services hereunder, (iii)
obtained from VIGC in the course of an audit pursuant to Section 3.5 or (iv)
furnished to or obtained by VYGP after the Effective Date in the course of its
receipt of Services hereunder. Except as may otherwise be provided in another
agreement between the Parties, VYGP shall not use such information for any
purpose other than as contemplated under this Agreement or verifying compliance
with this Agreement, without VIGC's prior written consent.
9.2 VYGP Information. VIGC agrees to hold, and to use its reasonable efforts to
cause its employees and representatives to hold, in confidence in a manner
consistent with VIGC's treatment of its own confidential information all
information reasonably understood to be confidential concerning VYGP, furnished
to or obtained by VIGC after the Effective Date in the course of providing
Services under this Agreement. Except as may otherwise be provided in another
agreement between the Parties, VIGC shall not use such information for any
purpose other than as contemplated under this Agreement or verifying compliance
with this Agreement, without VYGP's prior written consent.
9.3 Security. Each Party shall be responsible for preventing unauthorized remote
access by such Party's own agents and employees to data transferred or otherwise
made available to the other Party under this Agreement.
9.4 General. The obligations of confidentiality and non-disclosure imposed under
this Section 9 shall not apply to data and information that the recipient can
demonstrate:
(i) is published or is or otherwise becomes available to the general
public as part of the public domain without breach of this Agreement;
(ii) has been furnished or made known to the recipient without any
obligation to keep it confidential by a third party under circumstances
which are not known to the recipient to involve a breach of the third
party's obligations to a Party hereto;
(iii) was developed independently of information furnished to the
recipient under this Agreement; or
(iv) was known to the recipient at the time of receipt thereof from the
other Party, is not otherwise subject to [(a) the confidentiality
restrictions contained in the Reorganization Agreement dated as of [ ],
2000 between VYGP and VIGC] or (b) any other obligation to keep it
confidential and was not obtained from a third party under
circumstances which were known to the recipient to involve a breach of
the third party's obligations to a Party hereto.
Each Party (the "first party") acknowledges that the other Party would not have
an adequate remedy at law for the breach by the first party of any one or more
of the covenants contained in this Section 9 and agrees that, in the event of
such breach, the other Party may, in addition to the other remedies which may be
available to it, apply to a court for an injunction to prevent breaches of this
Section 9 and to enforce specifically the terms and provisions of this Section.
The provisions of this Section 9 shall not preclude disclosures required by law;
provided, however, that each Party will use reasonable efforts to notify the
other, prior to making any such disclosure, and permit the other to take such
steps as it deems appropriate, including obtaining a protective order,
consistent with applicable law, to minimize any loss of confidentiality.
SECTION 10. TERMINATION.
10.1 Grounds for Termination. Each Party shall have the right to terminate this
Agreement effective upon delivery of Notice to the other Party if the other
Party: (a) makes an assignment for the benefit of creditors, or becomes bankrupt
or insolvent, or is petitioned into bankruptcy, or takes advantage of any state,
federal or foreign bankruptcy or insolvency act, or if a receiver or
receiver/manager is appointed for all or any substantial part of its property
and business and such receiver or receiver/manager remains undischarged for a
period of 30 days, (b) has its corporate existence terminated by voluntary or
involuntary dissolution,(c) materially defaults in the performance of any of its
covenants or obligations contained in this Agreement and such default is not
remedied to the nondefaulting Party's reasonable satisfaction within 30 days
after Notice to the defaulting Party of such default, or if such default is not
capable of rectification within 30 days, if the defaulting Party has not
promptly commenced to rectify the default within such 30 day period and is not
proceeding diligently to rectify the default, (d) effects a Transfer of its
rights and obligations under this Agreement pursuant to Section 13.2, or (e)
undergoes a Change in Control. Except as provided above, neither this Agreement
nor any of the Services may be terminated prior to June 30, 2000,
except with the mutual agreement of the Parties.
10.2 Procedures on Termination. On any termination of this Agreement, VIGC will
cooperate with VYGP as reasonably necessary to avoid disruption of the ordinary
course of VYGP's business, and such termination shall not affect VIGC's rights
to payment for Services provided.
Except as otherwise required pursuant to Section 16.9 each Party shall destroy
or return to the other Party all records made or obtained in the course of
performance hereunder containing information regarding the other Party or its
customers that is protected from disclosure under Section 9. In the event that
any Party shall elect to destroy any records as permitted above, such Party
shall provide the other Party with written confirmation of any such destruction.
10.3 Termination Costs. If VYGP elects to terminate any Service pursuant to
Section 10.1 and such termination results in VIGC's becoming liable for
termination charges imposed by a Person that is not an Affiliate of VIGC, VYGP
will reimburse VIGC therefore. If the amount of any such charges is subject to
negotiation between VIGC and such Person, VIGC will allow VYGP to participate
therein and will not agree to the amount thereof without VYGP's consent, which
will not be unreasonably withheld. Any amounts payable under this Section 10.3
shall be in addition to, and separate from, any amounts payable under Sections
5.5-5.7.
SECTION 11. LIMITATION OF LIABILITY AND REMEDY.
11.1 Damages. In no event, whether based on contract, indemnity, warranty, tort
(including willful and wanton misconduct or negligence), strict liability or
otherwise, shall either Party or any of its directors, officers, employees or
agents, be liable for any lost profits or any special, exemplary, punitive,
incidental, indirect or consequential damages. The foregoing limitation and
disclaimer shall apply irrespective of whether the possibility of such lost
profits or any special, exemplary, punitive, incidental, indirect or
consequential damages had been disclosed in advance or could have reasonably
been foreseen. The amounts due from one Party to the other based upon the
Parties' respective obligations to indemnify each other pursuant to this
Agreement shall not be deemed to be damages that would be excluded by this
paragraph.
The limitations and disclaimers of obligations and liability ties contained in
this Section 11 are intended to apply to the fullest extent permitted by law;
provided that such limitations and disclaimers shall not limit amounts payable
with respect to any express indemnity provided for in this Agreement.
11.2 VYGP's Exclusive Remedies. VYGP's exclusive remedies against VIGC for any
breach of, or other act or omission arising out of or relating to, this
Agreement shall be:
(i) the right to receive refunds of the amount of any payment in excess
of amounts owed under this Agreement;
(ii) the right to require reperformance of any Service to the extent
required pursuant to Section 3.2;
(iii) the right to indemnification as provided in Section 14;
(iv) the right to injunction, specific performance or other equitable
non-monetary relief when available under applicable law;
(v) the right to terminate this Agreement for material breach as set
forth in Section 10; and
(vi) the right to actual damages, any such damages to be limited to the
amount of fees paid.
11.3 VIGC's Exclusive Remedies. VIGC's exclusive remedies against VYGP for any
breach of, or other act or omission arising out of or relating to, this
Agreement shall be:
(i) the right to receive payment for Services and any other amounts due
under this Agreement;
(ii) the right to suspend performance as provided in Section 6;
(iii) the right to indemnification as provided in Section 14;
(iv) the right to injunction, specific performance or other equitable
non-monetary relief when available under applicable law; and
(v) the right to terminate this Agreement for material breach as set
forth in Section 10.
11.4 Affiliates. The provisions of Sections 11.1 through 11.3 apply to a Party's
Affiliates providing any part of any Service or performing any other function
hereunder or receiving any part of any Service hereunder.
SECTION 12. FORCE MAJEURE.
The obligations of either Party to perform under this Agreement shall be excused
during each period of delay caused by matters (not including lack of funds or
other financial causes) such as strikes, supplier delays, shortages of raw
materials, government orders or acts of God, which are reasonably beyond the
control of the Party obligated to perform; provided that nothing contained in
this Agreement shall affect either Party's ability or discretion with respect to
any strike or other employee dispute or disturbance and all such strikes,
disputes or disturbances shall be deemed to be beyond the control of such Party.
A condition of force majeure shall be deemed to continue only so long as the
affected Party shall be taking all reasonable actions necessary to overcome such
condition. In the event that either Party hereto shall be affected by a
condition of force majeure, such Party shall give the other Party prompt Notice
thereof, which Notice shall contain the affected Party's estimate of the
duration of such condition and a description of the steps being taken or
proposed to be taken to overcome such condition of force majeure. Any delay
occasioned by any such cause shall not constitute a default under this
Agreement, and the obligations of the Parties shall be suspended during the
period of delay so occasioned. During any period of force majeure, the Party
that is not directly affected by such condition of force majeure shall be
entitled to take any reasonable action
necessary to mitigate the effects of such condition of force majeure.
SECTION 13. ASSIGNMENT.
13.1 Assignment with Consent. This Agreement shall be binding upon and inure to
the benefit of the Parties hereto and their respective successors and permitted
assigns, provided, however, that, except as provided below, neither Party may
Transfer its interest in the Agreement, including Transfers by operation of law
such as by way of merger or consolidation, without the prior written consent of
the other Party, which consent may not be unreasonably withheld.
13.2 Assignment in Event of Acquisition. Notwithstanding the foregoing
provisions of this Section 13, either Party may Transfer its rights and
obligations under this Agreement to any corporation or other entity that shall
acquire all or substantially all of such Party's business and assets and assume
in writing all of such Party's obligations hereunder and deliver a signed copy
of such assumption instrument to the other Party; and, upon the other Party's
receipt of such assumption instrument, the assigning Party shall be fully
released and discharged from its obligations under this Agreement. In the event
of such a Transfer, the Non-Affected Party shall have the right to terminate
this Agreement as provided in Section 10.
SECTION 14. INDEMNIFICATION AND INSURANCE.
14.1 VIGC's Obligation. VIGC agrees to indemnify and hold VYGP and the VYGP
Indemnified Parties (as hereinafter defined) harmless from and against, and in
respect of, any and all damages, claims, losses, demands, suits, fines,
penalties and liabilities asserted against or incurred, and all expenses
(including all reasonable fees and expenses of counsel, travel costs and other
out-of-pocket costs) incurred in connection with pending or threatened
litigation or other proceedings ("Expenses") which arise out of or relate to any
claim, action or proceeding asserted by a third party to the extent exclusively
and solely arising out of any matter or thing constituting a breach by VIGC
hereunder or any gross negligence or willful misconduct by VIGC (or its
employees or agents) in its performance of this Agreement. The VYGP Indemnified
Parties shall mean and include: (x) VYGP's Affiliates; and (y) the respective
directors, officers, agents and employees of VYGP and its Affiliates. Expenses
shall be reimbursed or advanced when and as incurred promptly upon submission by
VYGP or any VYGP Indemnified Party of statements to VIGC.
14.2 VYGP's Obligation. VYGP agrees to indemnify and hold VIGC and the VIGC
Indemnified Parties (as hereinafter defined) harmless from and against, and in
respect of, any and all damages, claims, losses, demands, suits, fines,
penalties and liabilities asserted against or incurred, and all expenses
(including all reasonable fees and expenses of counsel, travel costs and other
out-of-pocket costs) incurred in connection with pending or threatened
litigation or other proceedings ("Expenses") which arise out of or relate to any
claim, action or proceeding asserted by a third party to the extent exclusively
and solely arising out of any matter or thing constituting a breach by VYGP
hereunder or any gross negligence or willful misconduct by VYGP (or its
employees or agents) in its performance of this Agreement. The VIGC Indemnified
Parties shall mean and include: (x) VIGC's Affiliates; and (y) the respective
directors, officers, agents and employees of VIGC and its Affiliates. Expenses
shall be reimbursed or advanced when and as incurred promptly upon submission by
VIGC
or any VIGC Indemnified Party of statements to VYGP.
14.3 Third-Party Claims. If any third party shall make any claim or commence any
arbitration proceeding or suit against any one or more of the VIGC Indemnified
Parties or the VYGP Indemnified Parties (hereafter "Indemnified Persons") with
respect to which an Indemnified Person intends to make any claim for
indemnification against VIGC under Section 14.1 or against VYGP under Section
14.2 (as the case may be, the "Indemnifying Party"), such Indemnified Persons
shall promptly give written notice to the Indemnifying Party of such third party
claim, arbitration proceeding or suit and the following provisions shall apply.
(a) Control of Proceedings.
1. In the event that some portion of the claim, arbitration proceeding
or suit brought against the Indemnified Person is for matters for which the
Indemnified Person will not seek indemnification from the Indemnifying Party,
the Parties shall negotiate in good faith as to which party shall have control
over the proceedings.
2. In all other instances, the Indemnifying Party shall have 20
business days after receipt of the notice referred to above in this Section 14.3
to notify the Indemnified Party that it elects to conduct and control the
defense of such claim, proceeding or suit. If the Indemnifying Party does not
give the foregoing notice, the Indemnified Party shall have the right to defend,
contest, settle or compromise such claim, proceeding or suit in the exercise of
its exclusive discretion subject to the provisions of Section 14.3(b), and the
Indemnifying Party shall, upon request from any of the Indemnified Persons,
promptly pay to such Indemnified Persons in accordance with the other terms of
this Section 14 the amount of any third party claim resulting from their
liability to the third party claimant and all related Expense.
3. If the Indemnifying Party gives the foregoing notice, the
Indemnifying Party shall have the right to undertake, conduct and control,
through counsel reasonably acceptable to the Indemnified Party, and at its sole
expense, the conduct and settlement of such claim, proceeding or suit, and the
Indemnified Party shall cooperate with the Indemnifying Party in connection
therewith, provided that (i) the Indemnifying Party shall not thereby permit any
lien, encumbrance or other adverse charge to thereafter attach to any asset of
any Indemnified Person; (ii) the Indemnifying Party shall not thereby permit any
injunction against any Indemnified Person; (iii) the Indemnifying Party shall
permit the Indemnified Person and counsel chosen by the Indemnified Person and
reasonably acceptable to the Indemnifying Party to monitor such conduct or
settlement and shall provide the Indemnified Person and such counsel with such
information regarding such claim, proceeding or suit as either of them may
reasonably request (which request may be general or specific), but the fees and
expenses of such counsel shall be borne by the Indemnified Person unless (1) the
Indemnifying Party and the Indemnified Person shall have mutually agreed to the
retention of such counsel or (2) the named parties to any such claim, proceeding
or suit include the Indemnified Person and the Indemnifying Party and in the
reasonable opinion of counsel to the Indemnified Person representation of both
parties by the same counsel would be inappropriate due to actual or likely
conflicts of interest between them, in either of which cases the reasonable fees
and disbursements of counsel for such Indemnified Person shall be reimbursed by
the Indemnifying Party to the
Indemnified Person; and (iv) the Indemnifying Party shall agree promptly to
reimburse to the extent required under this Section 14 the Indemnified Person
for the full amount of any third party claim resulting from such claim,
proceeding or suit and all related Expense incurred by the Indemnified Person.
4. In no event shall the Indemnifying Party without the prior written
consent of the Indemnified Person, settle or comprise any claim or consent to
the entry of any judgment that does not include as an unconditional term thereof
the giving by the claimant or the plaintiff to the Indemnified Person a release
from all liability in respect of such claim.
5. If the Indemnifying Party shall not have undertaken the conduct and
control of the defense of any claim, suit or proceeding as provided above, the
Indemnifying Party shall nevertheless be entitled through counsel chosen by the
Indemnifying Party and reasonably acceptable to the Indemnified Person to
monitor the conduct or settlement of such claim by the Indemnified Person, and
the Indemnified Person shall provide the Indemnifying Party and such counsel
with such information regarding such action or suit as either of them may
reasonably request (which request may be general or specific), but all costs and
expenses incurred in connection with such monitoring shall be borne by the
Indemnifying Party.
(b) Settlement of Third-Party Claims By the Indemnified Person. So long as the
Indemnifying Party is contesting any such claim, proceeding or suit in good
faith, the Indemnified Person shall not pay or settle any such claim, proceeding
or suit. Notwithstanding the foregoing, the Indemnified Person shall have the
right to pay or settle any such claim, proceeding or suit, provided that in such
event the Indemnified Person shall waive any right to indemnity therefore by the
Indemnifying Party, and no amount in respect thereof shall be claimed as Loss or
Expense under this Section 14.
If the Indemnifying Party shall not have undertaken the conduct and control of
the defense of any claim, proceeding or suit as provided above, the Indemnified
Person, on not less than 30 days' prior written Notice to the Indemnifying
Party, may make settlement (including payment in full) of such claim and such
settlement shall be binding upon the Parties hereto for the purposes hereof,
unless within said 30-day period the Indemnifying Party shall have requested the
Indemnified Person to contest such claim at the expense of the Indemnifying
Party. In such event, the Indemnified Person shall promptly comply with such
request and the Indemnifying Party shall have the right to direct the defense of
such claim or any litigation based thereon subject to all of the conditions of
this Section 14. Anything in this Section 14 to the contrary notwithstanding, if
the Indemnified Person advises the Indemnifying Party that it has determined to
make settlement of a claim, the Indemnified Person shall have the right to do so
at its own cost and expense, without any requirement to contest such claim at
the request of the Indemnifying Party, but without any right under the
provisions of this Section 14 for indemnification by the Indemnifying Party.
14.4 Insurance. Each Party is responsible for carrying any insurance desired by
it in its sole discretion, including comprehensive general liability insurance,
insurance to cover its facilities, products liability insurance and business
interruption insurance. The indemnification provided for in Sections 14.1 and
14.2 shall not apply to the extent the Indemnified Party is compensated by any
insurance.
SECTION 15. DISPUTES.
15.1 Agreement to Arbitrate. The procedures for discussion, negotiation and
arbitration set forth in this Section 15 shall apply to all disputes,
controversies or claims (whether sounding in contract, tort or otherwise) that
may arise out of or relate to, or arise under or in connection with, this
Agreement. Each Party agrees on behalf of itself and its respective Affiliates
that the procedures set forth in this Section 15 shall be the sole and exclusive
remedy in connection with any dispute, controversy or claim relating to any of
the foregoing matters and irrevocably waives any right to commence any Action in
or before any Governmental Authority, except as expressly provided in Section
15.7(b) and except to the extent provided under the Arbitration Act in the case
of judicial review of arbitration results or awards. Each Party on behalf of
itself and its respective Affiliates irrevocably waives any right to any trial
by jury with respect to any claim, controversy or dispute set forth in the first
sentence of this Section 15.1
15.2 Escalation and Mediation. (a) Each Party agrees to use its respective
reasonable efforts to resolve expeditiously any dispute, controversy or claim
between them with respect to the matters covered hereby that may arise from time
to time on a mutually acceptable negotiated basis. In furtherance of the
foregoing, any Party involved in a dispute, controversy or claim may deliver a
notice (an "Escalation Notice") demanding an in-person meeting involving
representatives of the Parties at a senior level of management of the Parties
(or if the Parties agree, of the appropriate strategic business unit or division
within such entity). A copy of any such Escalation Notice shall be given to the
General Counsel, or like officer or official, of each Party involved in the
dispute, controversy or claim (which copy shall state that it is an Escalation
Notice pursuant to this Agreement). Any agenda, location or procedures for such
discussions or negotiations between the Parties may be established by the
Parties from time to time; provided, however, that the Parties shall use their
reasonable efforts to meet within 10 days of the Escalation Notice.
(b) The Parties must retain a mediator to aid the Parties in their discussions
and negotiations by informally providing advice to the Parties. Any opinion
expressed by the mediator shall be strictly advisory and shall not be binding on
the Parties, nor shall ny opinion expressed by the mediator be admissible in any
arbitration proceeding. The mediator shall be
selected by the Party that did not deliver the applicable Escalation Notice from
the list of individuals set forth on Exhibit A, the names of which individuals
were supplied to the Parties by JAMS/Endispute. Costs of the mediation shall be
borne equally by the Parties involved in the matter, except that each Party
shall be responsible for its own expenses. Mediation is a prerequisite to a
demand for arbitration under Section 15.3.
15.3 Procedures for Arbitration. (a) At any time after the completion of the
mediation required by Section 15.2(b), any Party involved in the dispute,
controversy or claim (regardless of whether such Party delivered the Escalation
Notice) may, unless the Applicable Deadline (as hereinafter defined) has
occurred, make a written demand (the "Arbitration Demand Notice") that the
dispute be resolved by binding arbitration, which Arbitration Demand Notice
shall be given to the Parties to the dispute, controversy or claim in the manner
set forth in Section 16.1. In the event that any Party shall deliver an
Arbitration Demand Notice to another Party, such other Party may itself deliver
an Arbitration
Demand Notice to such first Party with respect to any related dispute,
controversy or claim with respect to which the Applicable Deadline has not
passed without the requirement of delivering an Escalation Notice. No Party may
assert that the failure to resolve any matter during any discussions or
negotiations, the course of conduct during the discussions or negotiations or
the failure to agree on a mutually acceptable time, agenda, location or
procedures for the meeting, in each case, as contemplated by Section 15.2, is a
prerequisite to a demand for arbitration under this Section 15.3. In the event
that any Party delivers an Arbitration Demand Notice with respect to any
dispute, controversy or claim that is the subject of any then pending
arbitration proceeding or of a previously delivered Arbitration Demand Notice,
all such disputes, controversies and claims shall be resolved in the arbitration
proceeding for which an Arbitration Demand Notice was first delivered unless the
arbitrator in his or her sole discretion determines that it is impracticable or
otherwise inadvisable to do so.
(b) Any Arbitration Demand Notice may be given until one year and 45 days after
the later of (i) the occurrence of the act or event giving rise to the
underlying claim or (ii) the date on which such act or event was, or should have
been, in the exercise of reasonable due diligence, discovered by the Party
asserting the claim (as applicable and as it may in a particular case be
specifically extended by the Parties in writing, the "Applicable Deadline"). Any
discussions, negotiations or mediations between the Parties pursuant to this
Agreement or otherwise will not toll the Applicable Deadline unless expressly
agreed in writing by the Parties. Each Party agrees on behalf of itself and its
respective Affiliates that if an Arbitration Demand Notice with respect to a
dispute, controversy or claim is not given prior to the expiration of the
Applicable Deadline, such dispute, controversy or claim will be barred. Subject
to Section 15.7(d), upon delivery of an Arbitration Demand Notice pursuant to
Section 15.3(a) prior to the Applicable Deadline, the dispute, controversy or
claim shall be decided by a sole arbitrator in accordance with the rules set
forth in this Section 15.
15.4 Arbitrator. (a) If the amount in dispute is less than $500,000, the
mediator selected by the provisions set forth in Section 15.2(b) above shall
also serve as the sole arbitrator. If the amount in dispute equals or exceeds
$500,000, the mediator selected by the provisions set forth in Section 15.2(b)
above shall select a sole arbitrator from a list provided by JAMS/Endispute.
After selection of such sole arbitrator, the mediator shall have no further role
with respect to the dispute. Any arbitrator selected pursuant to this paragraph
(a) shall be disinterested with respect to any of the Parties and the matter and
shall be reasonably competent in the applicable subject matter.
(b) The sole arbitrator selected pursuant to paragraph (a) above will set a time
for the hearing of the matter which will commence no later than 90 days after
the date of the appointment of the sole arbitrator pursuant to paragraph (a)
above, and such hearing will be no longer than 30 days (unless in the judgment
of the sole arbitrator the matter is unusually complex and sophisticated and
thereby requires a longer time, in which event such hearing shall be no longer
than 90 days). The final decision of such arbitrator will be rendered in writing
to the Parties not later than 60 days after the last hearing date, unless
otherwise agreed by the Parties in writing.
15.5 Hearings. Within the time period specified in Section 15.4(b), the matter
shall be presented to the arbitrator at a hearing by means of written
submissions of memoranda and verified witness statements, filed simultaneously,
and responses, if necessary in the judgment of the arbitrator or both
of the Parties. If the arbitrator deems it to be essential to a fair resolution
of the dispute, live cross-examination or direct examination may be permitted,
but is not generally contemplated to be necessary. The arbitrator shall actively
manage the arbitration with a view to achieving a just, speedy and
cost-effective resolution of the dispute, claim or controversy. The arbitrator
may, in his or her sole discretion, set time and other limits on the
presentation of each Party's case, its memoranda or other submissions, and
refuse to receive any proffered evidence that the arbitrator, in his or her sole
discretion, finds to be cumulative, unnecessary, irrelevant or of low probative
nature. Except as otherwise set forth herein, any arbitration hereunder will be
conducted in accordance with the JAMS/Endispute Streamlined Rules for
Commercial, Real Estate and Construction Cases then prevailing. The decision of
the arbitrator will be final and binding on the Parties, and judgment thereon
may be had and will be enforceable in any court having jurisdiction over the
Parties. Arbitration awards will bear interest at an annual rate of the Prime
Rate plus 2% per annum. To the extent that the provisions of this Agreement and
the prevailing rules of JAMS/Endispute conflict, the provisions of this
Agreement shall govern.
15.6 Discovery and Certain Other Matters. (a) Any Party involved in the
applicable dispute may request limited document production from the other Party
of specific and expressly relevant documents, with the reasonable expenses of
the producing Party incurred in such production paid by the requesting Party.
Any such discovery (which rights to documents shall be substantially less than
document discovery rights prevailing under the Federal Rules of Civil Procedure)
shall be conducted expeditiously and shall not cause the hearing provided for in
Section 15.5 to be adjourned except upon consent of all of the Parties or upon
an extraordinary showing of cause demonstrating that such adjournment is
necessary to permit discovery essential to a Party to the proceeding.
Depositions, interrogatories or other forms of discovery (other than the
document production set forth above) shall not occur except by consent of all of
the Parties. Disputes concerning the scope of document production and
enforcement of the document production requests will be determined by written
agreement of the Parties or, failing such agreement, will be referred to the
arbitrator for resolution. All discovery requests will be subject to the
Parties' rights to claim any applicable privilege. The arbitrator will adopt
procedures to protect the proprietary rights of the Parties and to maintain the
confidential treatment of the arbitration proceedings (except as may be required
by law). Subject to the foregoing, the arbitrator shall have the power to issue
subpoenas to compel the production of documents relevant to the dispute,
controversy or claim.
(b) The arbitrator shall have full power and authority to determine issues of
arbitrability but shall otherwise be limited to interpreting or construing the
applicable provisions of this Agreement, and will have no authority or power to
limit, expand, alter, amend, modify, revoke or suspend any condition or
provision of this Agreement; it being understood, however, that the arbitrator
will have full authority to implement the provisions of this Agreement and to
fashion appropriate remedies for breaches of this Agreement; provided, however,
that the arbitrator shall not have (i) any authority in excess of the authority
a court having jurisdiction over the Parties and the controversy or dispute
would have absent these arbitration provisions,(ii) any right or power to award
punitive or multiplicative damages or (iii) any power to impose remedies other
than those set forth in Section 11.2 and 11.3. It is the intention of the
Parties that in rendering a decision the arbitrator give effect to the
applicable provisions of this Agreement and follow applicable law (it being
understood and agreed that this sentence shall not give rise to a right of
judicial review of the arbitrator's award).
(c) If a Party fails or refuses to appear at and participate in an arbitration
hearing after due notice, the arbitrator may hear and determine the controversy
upon evidence produced by the appearing Party.
(d) Arbitration costs will be borne equally by each Party involved in the
matter, except that each Party will be responsible for its own attorney's fees
and other costs and expenses, including the costs of witnesses selected by such
Party.
15.7 Certain Additional Matters. (a) Any arbitration award shall be a bare award
limited to a holding for or against a Party and shall be without findings as to
facts, issues or conclusions of law (including with respect to any matters
relating to the validity or infringement of patents or patent applications) and
shall be without a statement of the reasoning on which the award rests, but must
be in adequate form so that a judgment of a court may be entered thereupon.
Judgment upon any arbitration award hereunder may be entered in any court having
jurisdiction thereof.
(b) Prior to the commencement of an arbitration hearing pursuant to Section
15.5, any Party may seek one or more temporary restraining orders in a court of
competent jurisdiction if necessary in order to preserve and protect the status
quo. Neither the request for, nor the grant or denial of, any such temporary
restraining order shall be deemed a waiver of the legation to arbitrate as set
forth herein, and the arbitrator may dissolve, continue or modify any such
order. Any such temporary restraining order shall remain in effect until the
first to occur of the expiration of the order in accordance with its terms or
the dissolution thereof by the arbitrator.
(c) Except as required by law, the Parties shall hold, and shall cause their
respective officers, directors, employees, agents and other representatives to
hold, the existence, content and result of mediation or arbitration in
confidence in accordance with the provisions of Section 9 of this Agreement and
except as may be required in order to enforce any award. Each of the Parties
shall request that any mediator or arbitrator comply with such confidentiality
requirement.
(d) In the event that at any time the sole arbitrator shall fail to serve as an
arbitrator for any reason, the Parties shall select a new arbitrator who shall
be disinterested as to the Parties and the matter in accordance with the
procedure set forth herein for the selection of the initial arbitrator. The
extent, if any, to which testimony previously given shall be repeated or as to
which the replacement arbitrator elects to rely on the stenographic record (if
there is one) of such testimony shall be determined by the replacement
arbitrator.
15.8 Law Governing Arbitration Procedures. The interpretation of the provisions
of this Article 15, only insofar as they relate to the agreement to arbitrate
and any procedures pursuant thereto, shall be governed by the Arbitration Act
and other applicable federal law. In all other respects, the interpretation of
this Agreement shall be governed as set forth in Section 16.3.
15.9 Choice of Forum. Any arbitration hereunder shall take place in Chicago,
Illinois, unless otherwise agreed in writing by the Parties.
SECTION 16. MISCELLANEOUS PROVISIONS.
16.1 Notices. All notices, requests, claims, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed given or
delivered (i) when delivered personally, (ii) if transmitted by facsimile when
confirmation of transmission is received, (iii) if sent by registered or
certified mail, postage prepaid, return receipt requested, on the third business
day after mailing or (iv) if sent by private courier when received; and shall be
addressed as follows:
If to VIGC, to:
If to VYGP, to:
or to such other address as such Party may indicate by a notice delivered to the
other Party.
16.2 Entire Agreement. This Agreement is the entire agreement between the
Parties hereto with respect to the subject matter hereof, they're being no prior
written or oral promises or representations not incorporated herein.
16.3 Choice of Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Illinois and the federal
laws of the United States of America applicable therein, as though all acts and
omissions related hereto occurred in Illinois. Any lawsuit arising from or
related to this Agreement shall only be brought in the United States District
Court for the Northern District of Illinois or the Circuit Court of ▇▇▇▇ County,
Illinois. To the extent permissible by law, the Parties hereby consent to the
jurisdiction and venue of such courts. Each Party hereby waives, releases and
agrees not to assert, and agrees to cause its Affiliates to waive, release and
not assert, any rights such Party or its Affiliates may have under any foreign
law or regulation that would be inconsistent with the terms of this Agreement as
governed by Illinois law.
16.4 Amendment; Waiver. No amendment or modification of the terms of this
Agreement shall be binding on either Party unless reduced to writing and signed
by an authorized representative of the Party to be bound. The waiver by either
Party of any particular default by the other Party shall not affect or impair
the rights of the Party so waiving with respect to any subsequent default of the
same or a different kind; nor shall any delay or omission by either Party to
exercise any right arising from any default by the other affect or impair any
rights which the nondefaulting Party may have with respect to the same or any
future default.
16.5 Severability. Any provision of this Agreement, which is prohibited or
unenforceable in any jurisdiction, shall be ineffective in such jurisdiction to
the extent of such prohibition or unenforceability without affecting, impairing
or invalidating the remaining provisions or the enforceability of this
Agreement.
16.6 Relationship of the Parties. By virtue of this Agreement, neither Party
constitutes the other as its agent, partner, joint venture, or legal
representative and neither Party has express or implied authority to bind the
other in any manner whatsoever.
16.7 Survival. The rights and obligations of the Parties under Sections 3.5, 6,
9, 11, 14, 15 and 16.9,
shall survive any termination of this Agreement.
16.8 Counterparts. For convenience of the Parties hereto, this Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
for all purposes.
16.9 Records Retention. Each Party will retain all information obtained or
created in the course of performance hereunder in accordance with the records
retention guidelines of the other Party existing from time to time. Each Party
has advised the other of its respective guidelines as in effect on the Effective
Date and will advise the other Party of any subsequent changes therein.
16.10 Beneficiaries. Except for the provisions of Section 14 hereof, which are
also for the benefit of the other Persons indemnified, this Agreement is solely
for the benefit of the Parties hereto and their respective Affiliates,
successors and permitted assigns and shall not confer upon any other Person any
remedy, claim, liability, reimbursement or other right in excess of those
existing without reference to this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be signed by their
authorized representatives as of the Effective Date.
VIGC: VYGP:
By: ▇▇▇▇ ▇▇▇▇▇ By: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Name: s/s/▇▇▇▇▇ ▇▇▇▇▇ Name's/s/s ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Director Title: Director
