Exhibit 2.8
JOINT INTEGRATION, MARKETING AND
DISTRIBUTION AGREEMENT
This Joint INTEGRATION Marketing and Distribution Agreement (this
"Agreement") is entered into to be effective as of April 30, 1997 (the
"Effective Date") by and between ▇▇▇▇▇ Enterprises, Incorporated ("Sykes")
and SystemSoft Corporation ("SystemSoft").
Recitals
Sykes is a diversified information technology company which provides
a variety of computer-related outsourcing services to hardware and
software suppliers and is the owner and developer of "Diagsoft Hardware
Diagnostics" and "Sentinel" computer software products (the "Sykes
Software"). SystemSoft is the owner, developer and publisher of
SystemWizard, a family of computer software products (the "SystemSoft
Software"). SystemSoft wishes to integrate the Sykes Software and
SystemWizard Client (as such term is defined below) into a new integrated
software product to be called "SystemWizard Premiere Software" and to
market and distribute SystemWizard Premiere Software under the terms of
this Agreement. Sykes wishes to integrate the VoiceView technology
portion of SystemWizard Client into ETSC (as such term is defined below)
and to integrate SystemWizard Technician (as such term is defined below)
into ETSC (as such term is defined below) under the terms of this
Agreement. The SystemWizard Premiere Software to be created hereunder
will not include "Diagsoft Hardware Diagnostics" or "Sentinel" on a stand-
alone basis, and will not include the System Wizard family of computer
software products on a stand-alone basis.
Definitions
"Diagsoft Hardware Diagnostics" comprises Sykes QA and QA Plus
hardware diagnostic and software testing programs.
"ETSC" comprises ETSC Client and ETSC Server, Sentinel and QA Plus
hardware diagnostic and software testing programs.
"Remote Control" is that portion of the SystemSoft Software which
allows one personal computer to control another personal computer.
"Sentinel" is a Sykes software program that tracks and records
changes to software programs and files.
"Service Offering" is a computer-related outsourcing service which
uses Sykes Computer Support Programs.
"Sykes Computer Support Programs" comprises those products and
services which Sykes offers to manufacturers, publishers, corporate
entities and other end-users
in support of their use of their technology products.
"Sykes Software" comprises Diagsoft Hardware Diagnostics and Sentinel
and modifications and upgrades thereto.
"SystemWizard Builder" is a software application that provides the
means and facilitates the process of adding diagnostic knowledge
information to SystemWizard Client and SystemWizard Server, and includes a
script editor, a pre-defined database of basic scripts that perform
multiple functions and a full set of database management tools.
"SystemWizard Client" is an integrated end-user application which
resides on the personal computer containing an expert system engine that
automatically diagnoses and resolves problems, and includes a core
knowledge base of generic system, software, and hardware solutions,
including the client portion of VoiceView technology.
"SystemSoft Software" comprises SystemWizard Builder, SystemBuilder
Client, SystemBuilder Server and SystemBuilder Technician and
modifications and upgrades thereto.
"SystemWizard Premiere Software" is the combined product of
SystemSoft Software and Sykes Software.
"SystemWizard Server" is a complete set of FTP software programs for
dial-up or internet connection including the Distribution Packager
software utility for creating knowledge bases for the SystemWizard Client
expert system, the File Maintenance Utility for taking SystemWizard
Builder knowledge bases and distributing them to the SystemWizard Servers.
"SystemWizard Technician" is a software application which resides on
the Technical Support Representative's machine and utilizes the VoiceView
protocol which integrates voice and data over a single telephone line.
SystemWizard Technician can connect to the client machine in Rapid
Alternating Data Mode (RAD), Modem Data Mode (MDM) and Digital
Simultaneous Voice and Data Mode (DSVD) (machine dependent). Once
connected, the agent can diagnose system problems and repair software by
means of Remote Control.
"Total Service Solution" is the service/product combination comprised
of Service Offering and SystemWizard Premiere Software.
"VoiceView" is that portion of SystemSoft which integrates voice and
data over a single telephone line and which Sykes will use as its voice
and data communication technology in its diagnostic and ETSC products.
FOR GOOD AND VALUABLE CONSIDERATION, and in consideration of the
foregoing recitals and the mutual covenants set forth below, Sykes and
SystemSoft, intending to be legally bound, hereby agree as follows:
1. Integration.
1.1 Integration. On the terms and conditions set forth in this
Agreement, SystemSoft agrees to perform development services to integrate
Sykes Software with SystemSoft Software to create "SystemWizard Premiere
Software." On the terms and conditions set forth in this Agreement, Sykes
agrees to perform development services to integrate SystemWizard Premiere
Software with Sykes Computer Support Programs to create "Service
Offering." Each party agrees that its respective contributions to the
products and services to be developed hereunder will conform both to each
party's respective specifications therefore and the specifications for the
products and services to be developed hereunder (the"Specifications") and
to the delivery schedule (the "Schedule") both as set forth on Exhibit A
hereto which shall be completed and attached as mutually agreed upon by
the parties hereto within thirty (30) days of the Effective Date, which
Exhibit A may be modified from time to time in accordance with Section 1.2
hereof. Each party will be responsible for obtaining all of the
technology, labor, materials, tooling and facilities necessary to provide
its respective development services hereunder.
1.2 Changes to Specifications, Modifications and Upgrades. Sykes
and SystemSoft agree to cooperate with each other in connection with
reasonable requests for modifications to the Specifications, modifications
and upgrades to SystemWizard Premiere Software and the Service Offering.
If either party requests a modification of the Specifications, or a
modification or upgrade to the SystemWizard Premiere Software or the
Service Offering that requires substantially more time and/or expense from
the developing party than that required of the requesting party, then the
developing party will notify the requesting party in writing of the
additional time and/or expense that such change requires and the
requesting party shall be permitted to withdraw such request. Any
modification of the Specifications, any modification or any upgrade to
System Wizard Premiere Software or Service Offering must be consented to
by both parties, which consent shall not be unreasonably withheld.
2. Grant of License.
▇. ▇▇▇▇▇ hereby grants to SystemSoft a worldwide non-exclusive
license in all intellectual property for Sykes Software, including a
worldwide non-exclusive copyright license to use, execute, reproduce,
display, perform, transfer, transmit, and distribute, use on-line, and
make derivative works of Sykes Software solely for purposes of
integrating, marketing, distributing and licensing Sykes Software as part
of SystemWizard Premiere Software, and the right to authorize a third
party to do any of the foregoing solely for the benefit of SystemSoft, all
in accordance with the terms of this Agreement. Sykes Software may not be
sublicensed, sold or otherwise distributed separately. SystemSoft agrees
not to reverse assemble, reverse compile or otherwise translate Sykes
Software, by itself, or as a part of SystemWizard Premiere Software.
SystemSoft agrees not to use, execute or perform the Sykes Software either
alone or with other software, to provide services.
B. SystemSoft hereby grants to Sykes a worldwide non-exclusive
license in all intellectual property for SystemSoft Software, including a
worldwide non-exclusive copyright license to use, execute, reproduce,
display, perform, transfer, distribute, transmit, use on-line, and make
derivative works of SystemSoft Software for the purposes of marketing,
distributing and licensing SystemWizard Premiere Software and integrating
it into Total Service Solution and for purposes of providing services,
including telephone and on-line services using the Total Service Solution,
and the right to authorize a third party to do any of the foregoing solely
for the benefit of Sykes, all in accordance with the terms of this
Agreement. SystemSoft agrees to grant to Sykes a nonexclusive license
with respect to SystemWizard Client, SystemWizard Builder, SystemWizard
Server and SystemWizard Technician on an as-needed basis with the same
license rights as granted for SystemSoft Software, and on the most
favorable royalty on which SystemSoft has licensed such products, to be
used as a part of Total Service Solution. Neither SystemSoft Software,
SystemWizard Technician nor SystemWizard Premiere Software may be
sublicensed, sold or otherwise distributed separately.
C. SystemSoft hereby grants to Sykes a worldwide non-exclusive
license in all intellectual property for the human readable source code
for SystemWizard Technician and VoiceView (and Remote Control, to the
extent SystemSoft is legally authorized to do so) and other documentation
associated with such source code (the "Source Code"), including a
copyright license to use, execute, reproduce, display, perform and prepare
derivative works of the Source Code in exchange for the payment of
$2,000,000 upon the execution of this Agreement. Such license shall not
be interpreted as granting Sykes any ownership interest in the Source Code
or any portion thereof. In the event SystemSoft is unable to deliver
Source Code for Remote Control, SystemSoft shall, at its sole cost and
expense, modify and create derivative works from such Source Code in
accordance with Sykes' specifications and deliver object code
functionality that enables Sykes to achieve its Remote Control objectives
as specified in Exhibit A hereto. Any resulting intellectual property and
derivative works shall be licensed on a world-wide basis, to Sykes for all
purposes including the license to use, execute, reproduce, display,
perform, transfer, distribute, transmit, use on-line, and make derivative
works.
D. Neither Sykes nor any employee or agent of Sykes shall disclose
or cause, suffer or permit to be disclosed the code, documentation or
other information contained in the Source Code to any third party without
the prior written consent of SystemSoft. Sykes shall preserve the code,
documentation or other information contained in the Source Code with the
same degree of care and security with which Sykes preserves its own
confidential information, but in no event less than a reasonable degree of
care and security, and any physical copy or form of the code,
documentation or other information contained in the Source Code shall be
maintained in a secure, locked facility. Sykes shall not sell, assign,
license, distribute, sublicense or otherwise transfer the Source Code.
▇. ▇▇▇▇▇ shall not, directly or indirectly, use or copy the Source
Code to obtain, derive or create the structure, methods or techniques
contained in the SystemSoft Software to create a product which performs
the functions of the SystemSoft Software or which otherwise competes with
the SystemSoft Software.
F. SystemSoft shall not, directly or indirectly, use or copy Sykes
Software to obtain, derive or create the structure, methods or techniques
contained in the Sykes Software to create a product which performs the
functions of Sykes Software or which otherwise competes with Sykes
Software.
▇. ▇▇▇▇▇ agrees that the Source Code is licensed to Sykes for the
sole purpose of integration into ETSC and Service Offering and shall not,
directly or indirectly, use (or permit or direct anyone else to use) the
Source Code, or any information contained or derived from the Source Code,
for the purpose of designing, developing, creating, modifying or upgrading
any non-Sykes Software product of any type or description (other than
integrating Source Code into Service Offering).
H. SystemSoft agrees that Sykes Software is licensed to SystemSoft
for the sole purpose of being integrated into SystemWizard Premiere
Software and shall not, directly or indirectly, use (or permit or direct
anyone else to use) Sykes Software, or any information contained or
derived from Sykes Software, for the purpose of designing, developing,
creating, modifying or upgrading any software product of any type or
description (other than integrating Sykes Software and SystemWizard
Client into SystemWizard Premiere Software.)
3. Exclusive Marketing.
The SystemWizard Premiere Software shall be marketed as "SystemWizard
Premiere Software" and SystemSoft and Sykes shall be the exclusive
distributors of SystemWizard Premiere Software.
Sykes and SystemSoft will each issue press releases to announce the
strategic relationship arising under this Agreement; provided, that each
party will have the right to approve the form and content of the other
party's press release prior to distribution.
Each party agrees to promote each other's software products and
technology services. Each party agrees to support actively the other
party's sales and marketing efforts.
SystemSoft agrees, during the term hereof, to promote actively Sykes
computer-related outsourcing services. SystemSoft further agrees that,
during the term hereof, it will not promote or recommend any computer-
related outsourcing service or create its own outsourcing service which
competes with Sykes. SystemSoft shall add messaging in the SystemWizard
Premiere Software that distinctively highlights and encourages customers
to use Sykes as the service provider for out-of-warranty product and
service support. This messaging shall include contact information such as
e-mail, phone numbers, and other access means. SystemSoft agrees that
such messaging shall be removed from SystemWizard Premiere Software only
upon the written request of an OEM.
Sykes agrees that, during the term hereof, it will not promote,
utilize or recommend any call avoidance software (other than knowledge
systems, artificial intelligence or bulletin boards) that competes
directly with SystemSoft Software. Sykes further agrees not to license
Sykes Software for distribution as part of any call avoidance software
that competes with SystemWizard.
4. Royalties.
4.1 Royalties.
A. SystemSoft will pay Sykes a royalty equal to 25% of the Net
Revenues attributable to SystemWizard Premiere Software.
▇. ▇▇▇▇▇ will pay SystemSoft a royalty equal to 25% of the Net
Revenues attributable to any Sykes Software product utilizing SystemSoft
technology.
▇. ▇▇▇▇▇ will pay SystemSoft a royalty in connection with the
product portion of Total Service Solution which shall be calculated as
follows:
(i) If Total Service Solution uses a SystemSoft Software
product, the royalty to be paid to SystemSoft shall be 75% of the Net
Revenues attributable to the product portion.
(ii) If Total Service Solution uses a Sykes Software product,
the royalty to be paid to SystemSoft shall be 25% of the Net Revenues
attributable to the product portion.
(iii) In the event that the parties can not agree on the
respective values of the technology or services included in the Total
Service Solution, the royalty to be paid to SystemSoft shall be based on
the most favorable prices charged by each party for such component
contributions during the previous calendar year.
The following example illustrates the operation of Section 4.1.C
hereof:
Total Service Solution (price) $50.00
Service component (100% Sykes) $45.00
Product component (allocated) $5.00
Allocation: Sykes SystemSoft
If Section 4.1.A applies: $1.25 $3.75
If Section 4.1.B applies: $3.75 $1.25
If Section 4.1.C applies: Most favorable pricing
"Net Revenues" means the actual gross receipts derived from all
sources whatsoever, less any sales, use, excise or other taxes (other than
taxes on income), allowances for returns, defects, replacements or other
rebillable items. If SystemWizard Premiere Software is distributed in a
single package with other software products that do not contain
SystemWizard Premiere Software for a single price (including, without
limitation, SystemSoft Software), the Net Revenue attributable to
SystemWizard Premiere Software will be determined by prorating the
receipts from the sale or license of the single package according to the
suggested price of the software, or if no suggested price is announced,
the values mutually established for SystemWizard Premiere Software and
such other products, whether or not such products are distributed
separately, provided that such values are reasonably related to the values
or cost of the separate products. Net Revenues will not include any
receipts from copies of SystemWizard Premiere Software supplied for
promotional purposes to the press, trade, sales representatives or
potential customers for SystemWizard Premiere Software. Amounts received
as deposits or advances will not be deemed to have been received until
shipment of SystemWizard Premiere Software to the party making the
deposits or advances have been made against such deposits or advances.
Partial payments of an invoice will be prorated over all products included
in the invoice. Amounts received in foreign currencies will be deemed
converted into U.S. Dollars.
4.2 Commission. Sykes agrees to pay to SystemSoft 3% of the first
year Net Revenues of each contract derived from any Sykes Service Offering
which SystemSoft actively assists Sykes in selling. Such fee will be paid
by Sykes upon the commencement of each such Sykes contract based on
estimated Net Revenues to be paid to Sykes during the first full year
thereof. Notwithstanding anything else in this Agreement to the contrary,
(i) commissions under this Section 4.2 shall accrue and be payable to
SystemSoft only after the first $70,000,000 of Net Revenue is received by
Sykes in connection with Service Offering, (ii) no commissions shall
accrue or be payable and no Net Revenue shall be attributable to contracts
under this Section 4.2 with entities with which Sykes has a pre-existing
contractual relationship or written proposal or which SystemSoft did not
actively assist Sykes in the sales function, as determined by Sykes in its
sole discretion, and (iii) at the end of the first full year of each
contract under this Section 4.2, Sykes and SystemSoft shall calculate the
commissions to be paid hereunder based on actual Net Revenues paid to
Sykes and shall make appropriate compensating payments. Under no
circumstances shall any commissions accrue or be payable to SystemSoft for
periods other than the first full year of each such contract hereunder.
4.3 Quarterly Payments: All royalty and commission payments owed by
one party to the other under this Agreement will be payable in U.S.
Dollars on a SystemSoft fiscal-quarterly basis within thirty (30) days
after the end of each such quarter based on Net Revenues received during
such quarter.
4.4 Reports of Royalty Payments. Each party shall deliver to the
other, along with its payment of royalties due for each SystemSoft fiscal
quarter, a written report showing, in reasonable detail, its calculation
of royalties payable with respect to such quarter. The parties shall
maintain such books and records as are necessary to properly calculate the
amounts of royalties to be paid pursuant to this Agreement. An
independent certified public accountant selected by one party and
reasonably acceptable to the other (the paying party) may, upon reasonable
notice and during normal business hours, but no more often than once each
quarter, inspect the records of the paying party on which such reports are
based. Any information revealed in such inspection shall be kept
confidential and not disclosed to anyone, except to the extent necessary
to identify to the parties or any fact finder in any action instituted to
enforce the terms of this Agreement. The paying party's determination of
the payments due under this Agreement will be deemed final and conclusive
unless, within twelve (12) months from the date of payment thereof, the
receiving party notifies the paying party in writing of any error in such
payments. The fees and expenses of the independent certified public
accountant shall be paid by the party initiating the inspection, unless
the inspection uncovers an underpayment for the SystemSoft fiscal quarter
in question in excess of 5% of the amount actually paid for such quarter,
in which case the fees and expenses of such accountant shall be borne by
the party liable for such underpayment.
4.5 Review Meetings. At a minimum, each SystemSoft fiscal quarter,
Sykes and SystemSoft will conduct a joint meeting during which revenue
forecasts, account status, implementation, share call reports and other
relevant information regarding SystemWizard Premiere Software shall be
discussed. At the request of either party, such meetings shall be held
more frequently. The location of the joint meeting shall be mutually
agreeable to the parties, or may be conducted by telephone.
4.6 Credit for Development Work. Each party shall be entitled (pro
rata in accordance with amounts actually expended) to a credit against 10%
of each royalty payment due under Section 4.1 for amounts actually
expended by such party for providing technology, labor, materials, tooling
and facilities necessary to provide development services pursuant to
Section 1.1 hereof. Any personnel charges shall be based on the burdened
cost of providing such services and shall be agreed to by both parties.
4.7 No Refunds. No amounts paid hereunder are refundable unless
specifically provided for in this Agreement.
5. Support. Each party will be responsible for providing all reasonably
requested support with respect to sales and marketing of System Wizard
Premiere Software and Service Offering hereunder.
6. Upgrades. The technology licenses granted under this Agreement
shall be deemed to include and cover all upgrades, modifications and
enhancements of such licensed technology which SystemSoft or Sykes
generally makes available to any of its customers. Royalties will be paid
on such upgrades, modifications and enhancements in accordance with the
provisions of Section 4.1.
7. Viruses. Sykes and SystemSoft shall execute a mutually agreed-
upon "virus scanning" software prior to releasing or delivering any
software to each other. The party receiving such software shall undertake
to verify the absence of viruses immediately upon receipt of such
software.
8. Ownership. Sykes is and shall be the owner of all right, title and
interest in and to Sykes Software and any and all upgrades and
improvements thereto and derivative works thereof made by either party and
all Sykes trademarks, trade names and copyrights. SystemSoft is and shall
be the owner of all right, title and interest in and to SystemSoft
Software and any and all upgrades and improvements thereto and derivative
works thereof made by either party and all SystemSoft trademarks, trade
names, and copyrights. Each party hereto shall retain sole and exclusive
ownership of its respective contribution to SystemWizard Premiere Software
and Total Service Solution. Except as expressly set forth herein, nothing
contained in this Agreement shall be deemed to transfer either party's
ownership, licensing or any other interest in their software to the other
party.
9. Warranties. Each party warrants to the other that (a) it has the
right to enter into and perform its obligations under this Agreement, (b)
its respective software is, and any modifications and upgrades will be,
the original creation of such party, and such party is the sole and
exclusive owner of such software and will be the sole and exclusive owner
of any modifications and upgrades to such software, or such party has the
rights to grant licenses for such software as granted to the other party
under this Agreement, (c) the grant to and exercise of any and all of the
rights set forth in this Agreement do not and will not violate the patent
rights, copyrights, trade secret rights, trademark rights or other
proprietary, contractual or other rights of any third party, (d) there are
no claims pending or threatened with respect to such software and there is
no reasonable basis for any such claims, and (e) it has the full power
and authority to enter into this Agreement and to grant the rights and
fulfill the obligations set forth herein.
EXCEPT AS PROVIDED ABOVE, SYKES AND SYSTEMSOFT HEREBY DISCLAIM ALL EXPRESS
AND IMPLIED WARRANTIES WITH RESPECT TO THE THEIR RESPECTIVE SOFTWARE,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. REGARDLESS OF THE TYPE OF CLAIM,
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ECONOMIC CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) OR INCIDENTAL DAMAGES, EVEN IF
INFORMED THAT THEY MAY OCCUR.
10. Indemnification. Each party (the "Indemnifying Party") will
indemnify and hold the other (the "Indemnified Party") harmless, and at
the Indemnified Party's request, defend it and its directors, officers,
employees, and agents from any claims, liabilities, damages, costs and
expenses (including reasonable attorney's fees and costs of suit) to the
extent they arise out of a breach of any of the warranties set forth in
Section 9 hereof. The Indemnified Party must give prompt written notice
of any indemnified claim, liability, damage, cost or expense to the
Indemnifying Party and the Indemnified Party must cooperate fully with the
Indemnifying Party in any defense. Neither party will be liable for any
settlement that it has not approved in writing. If a party is not
controlling the defense, it has the right to participate in the defense
and be represented by its own counsel. The amount of any indemnification
may be offset against any amounts owed to the other party hereunder. If a
claim, demand or suit alleging infringement with respect to SystemWizard
Premiere Software, Sykes Software, or SystemSoft Software is brought,
the party licensing that software shall have the option at its expense to
(a) modify the affected software to avoid the allegation of infringement,
(b) obtain a license to continue use of the affected software, or (c) if
neither (a) nor (b) are reasonably practical in the licensing party's
discretion, terminate this Agreement, subject to the indemnity granted
pursuant to this Section 10.
11. Term and Termination.
11.1 Term. The initial term of this Agreement shall commence on the
Effective Date hereof and shall terminate upon the expiration of three
(3) years. At the end of such initial term and each successive term
thereafter, this Agreement will automatically renew for successive one-
year terms, unless either party terminates this Agreement in writing at
least four (4) months prior to the next anniversary of the Effective Date.
11.2 Termination. Notwithstanding Section 11.1, this Agreement may
be terminated immediately by either party upon written notice to the other
party after the occurrence of any of the following events:
(a) if the other party is dissolved, liquidated, files for
bankruptcy, makes an assignment for the benefit of its creditors, or
otherwise ceases to do business in the ordinary course as contemplated by
this Agreement, or
(b) if the other party fails to perform or observe any material
term, covenant or provision contained in this Agreement to be performed or
observed by that party and such failure remains unremedied for the
applicable cure period (which shall be fifteen (15) calendar days, in the
case of a failure to make a required payment or deliver conforming
deliverables, or thirty (30) calendar days for other breaches) after
written notice to the breaching party, which notice shall provide in
reasonable detail, a description of the alleged breach and the requested
cure for such breach.
11.3 License After Termination. Following termination or expiration
of this Agreement, each party, provided there is no uncured breach of this
Agreement, may continue to enjoy the benefits of a license of the other
party's software pursuant to the terms of this Agreement, subject to the
payment of royalties as set forth in Section 4.1.
12. Confidentiality. Each party acknowledges that (a) Sykes Software
and SystemSoft Software are confidential and (b) in the course of the
relationship contemplated by this Agreement, it may receive information
that is confidential and proprietary to the other. Each party agrees not
to use such information except as permitted in this Agreement and not to
disclose such information to third parties. Such confidential and
proprietary information consists of the terms of this Agreement, the
parties' current and future business plans, information that is stamped or
marked as confidential by such party and any other information disclosed
by such party if, within thirty (30) days of disclosure, whether orally or
by way of written documents, such party identifies by written notice to
the other the confidential nature of such information. The foregoing
restrictions will not apply to information that (a) has been independently
developed other than pursuant to this Agreement, (b) has become publicly
known through no wrongful act of the party wishing to make use of such
information, (c) has been rightfully received from a third party
authorized to make such disclosure without restriction, (d) has been
approved for release in writing, or (e) is required to be disclosed by
law, provided that the party required to make such disclosure shall be
required to make reasonable efforts, consistent with applicable law, to
limit the scope and nature of such required disclosure and to provide the
other party with prompt notice of such required disclosure and to afford
that party the opportunity to seek an appropriate protective order.
Sykes and SystemSoft each hereby acknowledge that the software of the
other, including the object code version of the software, the source code
and the terms and conditions of this Agreement contain valuable
information belonging to the other party, that is confidential in nature.
Sykes and SystemSoft also acknowledge that unauthorized disclosure of this
information would cause irreparable damage. Sykes and SystemSoft agree
not to release, disclose or otherwise permit access to such confidential
information or to use the information in such a way that other parties can
gain unauthorized access to such confidential information.
12. Notices. Notices to either party shall be in writing and shall be
deemed delivered when served in person or three business days after being
deposited in the United Sates Mail, first class, certified mail, postage
prepaid, return receipt requested or one business day after being
dispatched by a nationally recognized one-day express courier service
addressed as follows:
To Sykes: ▇▇▇▇▇ Enterprises, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Additional Copy to: ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President
To SystemSoft: SystemSoft Corporation
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Additional Copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO, President and
Chairman
14. No Agency. This Agreement does not constitute and shall not be
construed as constituting any agency relationship, partnership or joint
venture between Sykes and SystemSoft. Neither party shall have any right
to obligate or bind the other party in any manner whatsoever, and nothing
herein contained shall give, or is intended to give, any rights of any
kind to third persons.
15. Non-Assignability. This Agreement shall bind and inure to the
benefit of both parties, and neither party shall have the right to assign
this Agreement, in whole or in part, without the prior written consent of
the other party, which consent shall not be unreasonably withheld, except
either party may assign this Agreement without the prior written consent
of the other party in the event of a merger or other reorganization of the
assigning party, or sale of all or substantially all of the assigning
party's assets, provided, however, that any such transaction involving a
direct competitor of the non-assigning party shall require the non-
assigning party's prior written consent, which may be withheld in its sole
discretion.
16. Governing Law. This Agreement will be governed and interpreted in
accordance with the substantive laws of the State of Florida, without
regard to conflict of law rules.
17. Venue and Jurisdiction.
(a) SystemSoft hereby irrevocably and unconditionally agrees
that any suit, action, or other legal proceeding arising out of or in
connection with this Agreement which is instituted by SystemSoft against
Sykes and/or any Sykes representative shall be brought in the courts of
record located in Hillsborough County, Florida or the courts of the United
States located in said county, consents to the jurisdiction of each such
court in any such suit, action, proceeding, and waives any objection to
the venue of any such suit, action or proceeding in any of such courts.
(b) Sykes hereby irrevocably and unconditionally agree that any
suit, action, or other legal proceeding arising out of or in connection
with this Agreement which is instituted by Sykes against SystemSoft and/or
any SystemSoft representative shall be brought in the courts of record
located in Suffolk County, Massachusetts or the courts of the United
States located in said county, consents to the jurisdiction of such court
in any such suit, action or proceeding, and waives any objection to the
venue of any such suit, action, or proceeding in any of such courts.
18. Export Regulations. Sykes and SystemSoft acknowledge that the Export
Administration Regulations of the Department of Commerce of the United
States may prohibit the export of specific software to certain countries
and agree to conform to these regulations. Each party shall indemnify the
other against any loss related to such party's failure to conform to such
regulations.
19. Entire Agreement; Amendment. This Agreement is the entire and only
agreement between the parties concerning the subject matter hereof and
supersedes all prior and contemporaneous oral or written proposals, term
sheets, negotiations, conversations and other communications between the
parties. Any waiver, variation or amendment of any term or condition of
this Agreement shall be effective only if signed by authorized
representatives of both parties.
20. Attorneys' Fees. In the event of any litigation under this
Agreement, the prevailing party shall be paid all costs and attorneys'
fees for all proceedings, trials and appeals.
21. Severability. If any one or more of the provisions of this Agreement
or any part or parts thereof shall be declared or adjudged to be illegal,
invalid, or unenforceable under any applicable law, such illegality,
invalidity, or unenforceability shall not void or otherwise affect the
remainder of this Agreement, and this Agreement shall be construed as if
such illegal, invalid or unenforceable provisions were omitted.
22. Waiver. The failure of either party hereto to enforce any provision
contained herein shall not be deemed as waiving a default, or as waiving
any of the rights or remedies of such party. Any action by either party
hereto to enforce this Agreement shall not be deemed as waiving any other
rights or remedies of such party.
23. Construction. Section headings are for the purpose of identification
only and are not considered a substantive part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first set forth above.
▇▇▇▇▇ ENTERPRISES, INCORPORATED SYSTEMSOFT CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President and General Counsel Vice President
Exhibit A
Specifications
and
Delivery Schedule
