EXHIBIT 10.10
[MIRROR IMAGE INTERNET, INC. LOGO] CONFIDENTIAL [WARP SOLUTIONS, INC. LOGO]
Mirror Image Internet, Inc.
and
Warp Solutions, Inc.
Strategic Alliance Agreement
THIS STRATEGIC ALLIANCE AGREEMENT (this "Agreement"), made and entered into this
_____ day of April 2003 ("Effective Date"), by and between Warp Solutions, Inc.
("Warp"), ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and MIRROR IMAGE INTERNET,
INC. ("MII"), a Delaware Corporation doing business at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
WHEREAS, WARP is in the business of selling network APPLIANCES THAT provide
Application Acceleration TECHNOLOGY ("AAT"). AAT provides transaction
performance and scalability to support websites. the AAT software programS,
appliances, data and related technology and the intellectual property rights and
confidential information pertaining thereto ARE THE PROPERTY OF WARP;
WHEREAS, MII is in the business of providing Internet content distribution,
COMMERCE and other services ("MII Services") through its global AND PROPRIETARY
Content Access POINT NETWORK ("CAP Network") and is the owner of the
technologies the intellectual property RIGHTS AND confidential information
relating thereto;
WHEREAS, WARP and MII desire to enter into a strategic alliance whereby the
parties will cooperate to achieve the following goals:
(1) WARP TO PROVIDE, install, configure and support the operatION of AAT within
the MII test environment FOR the purposes of (i) evaluating and testing AAT
PERFORMANCE, FUNCTIONALITY and suitability for use prior to AAT being deployed
into the mii cap network and (ii) for the purpose of enabling continuing support
and testing of AAT
(2) WARP TO PROVIDE, install, configure and support the operation of AAT within
THE MII cap network FOR the purposes of being ready and able to sell and deliver
A MII service offering enhanced by aat ("AAT SERVICE") to current and future MII
CUSTOMERS.
(3) MII to Offer AN AAT SERVICE running on MII's CAP Network Platform to current
and future MII CUSTOMERS;
(4) WARP to offer MII's services on a referral and/or resale basis, whether
based on warp technology or not, to prospective customer's of warp;
(5) MII to REFER prospective customers to warp when the prospective customer
expresses an interest in acquiring warp products directly from warp.
Page 2 of 17
TABLE OF CONTENTS
SECTION 1 - DEFINITIONS.............................................. 4
SECTION 2 - WARP TO PROVIDE, INSTALL, CONFIGURE AND OPERATE
AAT WITHIN THE MII TEST ENVIRONMENT...................... 5
SECTION 3 - WARP TO PROVIDE, INSTALL, CONFIGURE AND ASSIST IN THE
OPERATION OF AAT WITHIN THE MII CAP NETWORK.............. 6
SECTION 4 - MII TO OFFER AN AAT SERVICE RUNNING ON MII'S CAP NETWORK
PLATFORM................................................. 7
SECTION 5 - WARP TO OFFER MII'S SERVICES ON A REFERRAL AND/OR RESALE
BASIS.................................................... 8
SECTION 6 - MII REFERRING CURRENT OR FUTURE CUSTOMERS TO WARP9
SECTION 7 - ESCROW OF WARP TECHNOLOGY................................ 10
SECTION 8 - SALES AND MARKETING ACTIVITIES........................... 11
SECTION 9 - MAINTENANCE AND SUPPORT ACTIVITIES....................... 12
SECTION 10 - RETAINED MARKETING RIGHTS............................... 12
SECTION 11 - TERMINATION............................................. 12
SECTION 12 - LIMITATION OF REMEDY.................................... 13
SECTION 13 - INTELLECTUAL PROPERTY OWNERSHIP......................... 13
SECTION 14 - CONFIDENTIALITY......................................... 14
SECTION 15 - WARRANTY................................................ 14
SECTION 16 - MISCELLANEOUS........................................... 15
EXHIBIT A - FEES PAID TO WARP BY MII FOR MII CUSTOMERS USE OF AAT
SERVICE.................................................. 17
Page 3 of 17
SECTION 1 - DEFINITIONS
1.1 "Confidential Information" means any and all technical and
non-technical information including patent, copyright, trade secret, and
proprietary information, techniques, concepts, architectures, sketches,
drawings, models, inventions, know-how, processes, apparatus, equipment,
algorithms, software programs, software source documents, data logs and formulae
related to the current, futures and proposed products and services of each of
the Parties, and includes without limitation, their respective information
concerning research, engineering, financial information including but not
limited to unpublished financial statements, pricing policies and price lists,
purchasing requirements, customer lists, business forecasts, sales and marketing
plans and information. Confidential Information also includes proprietary or
confidential information of any third party who may discloses such information
to either Party in the course of the other Party's business.
1.2 "Warp" means Warp Solutions, Inc., WARP Technology Holdings, Inc. and
any other such affiliate or subsidiary.
1.3 "Warp Technology" means Warp's proprietary technology and know-how
including patented and unpatented proprietary technology, software programs,
software tools, hardware designs, algorithms, (in source and object forms), user
interface designs, objects and documentation (both printed and electronic),
know-how, trade secrets and any related intellectual property rights throughout
the world (whether owned by Warp or licensed to Warp from a third party) and
also includes any derivatives, improvements, enhancements or extensions of Warp
Technology conceived, reduced to practice, or developed during the term of this
Agreement by Warp. Warp Technology also includes any hardware, software or
devices that are provided by Warp as necessary to operate Warp Technology.
1.4 "MII" means Mirror Image Internet, Inc, and any of its subsidiaries.
1.5 "MII Technology" means MII's proprietary technology and know-how
including MII patented and unpatented proprietary technology, CAP Network,
architecture, software programs, software tools, hardware designs, algorithms,
software (in source and object forms), user interface designs, architecture,
network designs, know-how, trade secrets and any related intellectual property
rights (whether owned by MII or licensed to MII from a third party) and also
includes any derivatives, improvements, enhancements or extensions of MII
technology conceived, reduced to practice, or developed during the term of this
Agreement by MII.
1.6 "Warp Software" means the software programs owned by Warp
1.7 "Object Code" means programming code in machine readable form generated
by compilation of Source Code and contained in a medium that permits it to be
loaded and operated on servers.
1.8 "Source Code" means code in programming languages such as "C" including
all comments and procedural code, plus all related development documents.
1.9 "AAT Service" means the Warp Technology running on the MII CAP network
when the technology is providing any of the features of Warp to MII Customers as
a service.
1.10 "MII Customer" means parties directly or indirectly entering into an
agreement to use, resell, embed, OEM, recommend, specify, distribute, or
otherwise cause to be consumed or purchased any Mirror Image product or service.
Page 4 of 17
SECTION 2 - WARP TO PROVIDE, INSTALL, CONFIGURE AND OPERATE AAT WITHIN THE MII
TEST ENVIRONMENT
In order to achieve the goals set forth for this partnership, it is a
requirement that Warp's Technology be evaluated and tested for suitability to be
deployed into the MII Cap Network. It also necessary to confirm that Warp
Technology functions and performs in a manner that would adequately address
MII's customers and prospective customer's technology needs in the areas of
application acceleration.
To achieve this goal Warp agrees that:
2.1 Warp will provide to MII its Technology, including all necessary
hardware, software, and documentation, to be installed within the MII Test
environment in Woburn Ma. This will be provided at no cost to MII.
2.2 Warp will provide on-site and remote support as deemed necessary by the
parties to ensure rapid evaluation and testing of the Warp Technology. This will
be provided at no cost to MII.
2.3 Warp will provide to MII the Warp technology so that it is in a
configuration, and has the functionality, consistent with the latest available
Warp Technology deemed by the parties to be suitable to the MII technology
environment and consistent with the goals of the joint service offering.
2.4 Warp will provide all efforts required to promptly address and solve
any issues identified as part of this activity when such issues are identified
by the Parties as being part of or related to Warp Technology.
2.5 Warp acknowledges that in order to achieve the goals set forth for this
partnership, it is a requirement that prior to being placed into commercial
production within MII's CAP Network Warp's Technology contain specific
functionality that is known at the time of this agreement may not be included in
the currently available Warp technology. Specifically, Warp Technology must
include the features and functions necessary for multiple MII Customers and
multiple distinct internet domain names, with independent configuration settings
for each domain name, to be processed by a single Warp appliance. These features
and functions need to include any relevant security, accounting, logging,
support, or other such features that are determined by the parties to be
necessary for operation of the AAT Service.
2.6 Warp acknowledges that in order to achieve the goals set forth for this
partnership, additional technical requirements to be addressed by Warp
Technology may become known as part of the testing and deployment process. Any
features and functions that are determined by the parties to be necessary for
the deployment and/or operation of the AAT Service will be implemented either
prior to the AAT Service being made commercially available, or at a time
mutually agreed upon by both parties in writing
To achieve this goal MII agrees that:
2.7 MII will provide all necessary technical support to configure, deploy,
and operate the Warp Technology in the test environment.
2.8 MII will provide prompt notice to Warp of all errors, inconsistencies,
performance problems, or other issues related to the proper functioning of the
Warp equipment in the test environment.
Page 5 of 17
SECTION 3 - WARP TO PROVIDE, INSTALL, CONFIGURE AND ASSIST IN THE OPERATION OF
AAT WITHIN THE MII CAP NETWORK
In order to achieve the goals set forth for this partnership, it is a
requirement that Warp's Technology be deployed into the MII Cap Network.
To achieve this goal Warp agrees that:
3.1 Warp will provide to MII its Technology, including all necessary
hardware, software and documentation, to be installed within the MII CAP
Network. Warp will provide adequate capacity to service requests from no less
than three locations, with each location having the capacity to service no less
than 500 HTTP requests per second.
3.2 As MII Customers consume or commit to the purchase of AAT Services,
Warp will increase the capacity of the Warp Technology within the MII CAP
Network by providing additional appliances such that MII has adequate capacity
to service no less than 2 times the forecasted utilization of AAT Services for
any given month.
3.3 Warp will provide on-site and remote support as deemed necessary by the
parties to ensure rapid installation and availability for operation of the Warp
Technology. This will be provided at no cost to MII.
3.4 Warp will maintain the technology provided to MII so that it is in a
configuration, and has the functionality, consistent with the latest available
Warp Technology.
3.5 Warp will provide all efforts required to promptly address and solve
any issues identified as part of this activity when such issues are identified
by the Parties as being part of the Warp Technology.
To achieve this goal MII agrees that:
3.6 MII will provide all necessary technical support to configure, deploy,
and operate the Warp Technology in the MII CAP network environment.
3.7 MII will commit the appropriate CAP hardware, software, and
telecommunications bandwidth to facilitate the proper operation of the Warp
Technology.
3.8 MII will make its best reasonable efforts to ensure that prior to
requesting support services from Warp MII has a reasonable belief that the
support issue being raised is caused by, or strongly influenced by, the
technology being provided by Warp. Is any such case that Warp is requested to
provide support to MII for other issues, MII agrees to compensate Warp per
Warp's then current and published professional services rates, including any
related travel expenses.
Page 6 of 17
SECTION 4 - MII TO OFFER AN AAT SERVICE RUNNING ON MII'S CAP NETWORK PLATFORM
One of the specific goals of this strategic partnership is to offer and sell a
MII managed service that uses the AAT provided to MII by Warp. These services
are anticipated to be offered to current and future MII Customers through MII's
direct and indirect sales activities.
To achieve this goal Warp agrees that:
4.1 MII is granted the global non exclusive rights to use Warp Technology
to create and to sell and distribute services to MII Customers as well as any
other party.
4.2 Warp will provide initial training on the sale use and installation of
ATT Appliances to MII personnel and additional training on an as needed basis.
4.3 Warp will provide support to MII customer service organization, for
installation and use of AAT Service.
4.4 Warp will assist MII in creating any applicable collateral, training
materiel, documentation or messaging that is necessary to achieve this goal.
4.5 Warp will refer to MII as a strategic partner and display MII's
trademark and information in a manner consistent with such a relationship and in
keeping with any branding guidelines published by MII.
MII agrees that:
4.6 MII will make its best reasonable commercial efforts to offer an AAT
Service to MII customers and prospects.
4.7 MII will pay to Warp a fixed portion of the revenue MII receives from
sale of the AAT Service. The amount and the timing of the payments shall be as
specified, and as limited, in Exhibit ("A").
4.8 MII will sell the AAT Service. All agreements for use of the AAT
Service shall be between MII and the Subscriber.
4.9 MII will provide support to Subscribers using AAT Services. MII
acknowledges and agrees that Warp will have no responsibility to directly
support Subscribers using MII AAT Services. However, Warp will provide
assistance to MII in support of MII's efforts to assist MII customers in
resolving issues.
4.10 MII will invoice the applicable party for their use of the AAT Service
sold by MII, and make its best effort to collect invoiced amounts from the
party.
4.11 MII will maintain records related to the sales of AAT Service. Such
records will be made available to Warp at Warp's request.
4.12 MII will refer to Warp as a strategic partner and display Warp's
trademark and information in a manner consistent with such a relationship and in
keeping with any branding guidelines published by Warp.
Page 7 of 17
SECTION 5 - WARP TO OFFER MII'S SERVICES ON A REFERRAL AND/OR RESALE BASIS
One of the specific goals of this strategic partnership is Warp to offer the AAT
Service, as well as other MII service offerings on a referral basis to current
or prospective customers of Warp.
To achieve this goal Warp agrees that:
5.1 Warp will represent MII services offerings in a manner consistent with
how the services are offered by MII directly. Warp will use the then current MII
branding, collateral, agreements and suggested retail pricing.
5.2 Warp will document the referral of prospective customers to MII by
transmitting an electronic mail message with a referral form to MII. The
contents of the referral form and the electronic mail message address to be used
will be mutually agreed upon by the parties.
5.3 In such cases that there is any disagreement between Warp and MII as to
when referral is to be accepted or rejected, Warp will cooperate with Warp to
equitably resolve the disagreement to the mutual satisfaction of the parties.
5.4 Warp will make reasonable commercial efforts to assist MII through the
sales process with the prospective customer with the goal of MII receiving a
committed order for services from the customer.
MII agrees that:
5.5 MII will confirm its reception of Warp referrals by replying to the
electronic mail message submitting the referral to the customer
5.6 MII will accept all referrals from Warp when the information provided
presents a valid commercial opportunity for sale of MII Services unless there is
a valid reason, as described below, for MII to not accept the referral.
5.7 MII will reject any referrals when the information provided by Warp
indicates, in MII's judgment, that the referred entity is not a valid or
suitable prospect for MII services, when the referred entity is already a
current or past customer of MII, when the referred party is already engaged in
business discussions with MII.
5.8 In such cases that there is any disagreement between Warp and MII as to
when referral is to be accepted or rejected, MII will cooperate with Warp to
equitably resolve the disagreement to the mutual satisfaction of the parties.
5.9 MII will pay to Warp a referral fee for any referrals that are accepted
and ultimately result in the delivery of MII services to the referred entity
except for the exclusions provided for in 5.10. The referral fee will be equal
to the first month of monthly recurring revenue that the referred entity commits
to paying to MII for each year of commitment by the referred entity. The
referral fee will be paid to Warp by the end of the month in which the third
monthly payment from the customer is received by MII.
5.10 MII will not be obligated to pay Warp referral fees for any services
under which Warp is receiving other payments. Specifically, MII will not be
obligated to pay Warp any referral fees related to the AAT services if Warp is
receiving payments under the terms described in Exhibit ("A").
Page 8 of 17
SECTION 6 - MII REFERRING CURRENT OR FUTURE CUSTOMERS TO WARP
One of the specific goals of this strategic partnership is to give MII customers
the ability to acquire Warp Technology directly from Warp.
To achieve this goal Warp agrees that:
6.1 Warp will provide initial training on the sale use and installation of
Warp Technology to MII personnel and additional training on an as needed basis.
6.2 Warp will credit to MII against other amounts due to Warp from MII an
amount equal to a 35% of the then current Warp retail pricing schedule for the
purchased product or services (currently $80,000 for 2063e) when MII refers a
prospective customer to WARP and the prospective customer purchases Warp
products or services.
6.3 Warp will document the process by which referrals are to be submitted
by MII and accepted by Warp.
6.4 Warp will refer to MII as a strategic partner and display MII's
trademark and information in a manner consistent with such a relationship and in
keeping with any branding guidelines published by MII.
6.5 Warp will maintain records related to the sales AAT Service to
customers referred to Warp by MII. Such records will be made available to MII at
MII's request.
MII agrees that:
6.6 MII will introduce Warp products and services to its current or
prospective customers when MII has reason to believe there are specific needs
that can be best addressed by initiating discussions between Warp and the
prospect.
6.7 MII will refer MII current and prospective customers to Warp when the
prospective customer expresses an interest in acquiring Warp products or
services directly from Warp.
6.8 MII will represent Warp products and services offerings in a manner
consistent with how the services are offered by Warp directly. MII will use the
then current Warp branding, collateral, agreements and suggested retail pricing.
6.9 MII will make reasonable commercial efforts to assist Warp through the
sales process with the prospective customer with the goal of Warp receiving a
committed order for products or services.
Page 9 of 17
SECTION 7 - ESCROW OF WARP TECHNOLOGY
MII will be entering into agreements that obligate MII to deliver to current and
future MII Customers services that use AAT Services and/or Warp Technology. So
that MII can be reasonably assured that it would be able to meet these
obligations and provide these services should Warp no longer be willing to, or
able to, fulfill its obligations under this agreement Warp agrees to take
specific actions to mitigate MII's risks.
Warp agrees that:
7.1 Warp will escrow its source code and marketing materials at Fulbright
and Jawosrski, LLP. In the event of a legally defined failure of WARP (e.g.
Court Order), at WARP's instruction, Fulbright will provide to MII all materials
("Warp Materials") so that MII can recreate an appliance identical to the
appliances that Warp provides to MII. Warp Materials shall include any and all
documentation, source code, specifications, installation instructions, direction
for compilation and assembly, specifications for any software tools that Warp
uses, , and any other such thing that Warp requires to build, configure and test
an appliance that would be used to provide AAT Services.
7.2 In an event that Warp is no longer willing to, or able to, fulfill its
obligations under this agreement, unless such agreement was terminated by WARP
for cause, Warp grants MII the unlimited rights to use the Warp Materials to
create services identical to, or substantially similar to, AAT Services so that
MII can fulfill any obligations that it may have related to its commitment to
provide products or services that use AAT Services.
MII agrees that:
7.3 MII will protect Warp Materials under the strictest confidence and not
reveal the details or contents of the Warp Materials to any party, including MII
employees, unless through no fault of MII Warp is no longer willing to, or able
to, fulfill its obligations under this agreement, and MII is under obligations
to continue providing services that use Warp Technology or AAT Services.
Page 10 of 17
SECTION 8 - SALES AND MARKETING ACTIVITIES
8.1 Marketing Communications Plan. The parties shall make their best
efforts to develop a mutually agreeable marketing plan within 30 days of
executing this Agreement. Specifics to be addressed within the plan include:
a) The timing, content and communication strategy for mutually agreed
upon joint press release(s) announcing the MII/Warp relationship.
b) The timing, content and communication strategy announcing availability
of the MII services using AAT Service.
c) The timing, content and communication strategy announcing customers'
use of MII services using AAT.
8.2 Distribution of Materials. Warp grants to MII rights to distribute Warp
collateral in connection with offering of AAT Service to MII Customers, or the
offering of MII products using AAT Service.
8.3 Mutual References on Corporate Web Sites. Warp and MII shall provide
each other with any applicable branding guidelines to be used when referring to
the other partner on their web site. Warp and MII will refer to the other as a
strategic partner and display the partner's trademark and information in a
manner consistent with such a relationship and in keeping with any branding
guidelines published by the partner, and mutually agreed to.
8.4 Press Releases. MII and Warp will jointly issue a press release
highlighting the scope and objectives of the relationship. The parties agree to
make their best efforts to have the release ready for distribution no later than
30 days after the date of this Agreement. The content of the release shall be
mutually agreed upon prior to the release being issued by either party. The
timing of the release shall be mutually agreed upon by both parties.
8.5 Monthly Reporting by MII to Warp. Within 15 business days of the close
of each calendar month MII will provide to Warp a report detailing the sales for
the uses described in this agreement. Each monthly report shall be transmitted
in writing or via email. The report shall contain the name of each end customer,
the customers contract start date, the customers contract end date, the type of
the customer sale (referral, resale, AAT Service, etc.), the total amount of the
customer sale, the amount due to Warp from the customer sale, and any other
relevant information related to the customer sales such as comments or notes.
8.6 Monthly Reporting by Warp to MII. Within 15 business days of the close
of each calendar month Warp will provide to MII a report detailing the sales for
the uses described in this agreement where Mirror is the reseller. Each monthly
report shall be transmitted in writing or via email. The report shall contain
the name of each end customer, the customers contract start date, the customers
contract end date, the type of the customer sale (referral, resale, AAT Service,
etc.), the total amount of the customer sale, the amount due to Warp from the
customer sale, and any other relevant information related to the customer sales
such as comments or notes.
Page 11 of 17
SECTION 9 - MAINTENANCE AND SUPPORT ACTIVITIES
9.1 Personnel. MII and Warp shall identify the members of and establish the
maintenance and support team of a reasonable number of trained technical staff
to support AAT Service within the MII CAP Network. The team shall create and
publish applicable procedures for supporting initiatives conducted under this
agreement.
9.2 Product Updates. Warp will provide to MII, and MII Customers using AAT
Service under the terms of this agreement, timely updates to their products.
Warp will provide to MII all commercially available software updates, bug fixes,
technical notes, database updates, software documentation, user documentation,
software utilities and any other similar item that would be available to any
Warp customer, business partner or development partner.
SECTION 10 - RETAINED MARKETING RIGHTS
10.1 Each party retains the exclusive right to market, distribute, sell,
sublicense, and supply any and all of its products and services subject to the
licenses granted in prior sections.
SECTION 11 - TERMINATION
11.1 Termination Date. This agreement shall terminate thirty-six (36)
months from the Effective Date unless extended by the mutual agreement of the
parties for an additional period.
11.2 Termination for Reason of Material Default. Either party may terminate
this Agreement in the event of a material default by the other party (in this
clause the "Defaulting Party"), by giving the Defaulting Party thirty (30) days'
prior written notice. Such notice shall include a summary of the default which
is relied upon. In the event the Defaulting Party cures the material default
prior to the expiration of such thirty (30) day period, this Agreement shall
remain in effect, and the notice of termination shall be inoperative.
11.3 Termination upon Insolvency. Either party may terminate this Agreement
immediately by notice in writing to the other party if the other party becomes
insolvent, is unable to pay its debts as and when they fall due or if a
liquidator, receiver, administrator, mortgagee in possession, manager or other
like officer is appointed over some or all of that party's assets.
Page 12 of 17
SECTION 12 - EFFECTS OF TERMINATION
12.1 Effects of Termination on MII Service to MII Customers using AAT
Service. MII may continue to use Warp Technology under the provisions of this
agreement to service MII Customers.
12.2 Effect of Termination of Customer Renewal. MII may allow MII Customers
to renew their contracts for any MII service using AAT Service or Warp
Technology.
12.3 Effect of Termination on MII Payments to Warp. MII's obligation to pay
to Warp any amounts for uses consistent with this agreement remains in effect as
long as MII Customers are using AAT Service and until MII's payments to Warp
reach the agreed upon maximum of $52,000 per appliance.
12.4 Return of Appliances to Warp. MII may, at its sole discretion, return
any appliance(s) that have not been paid for in full. In this case MII will not
have any obligation to pay additional amounts to Warp with respect to the
appliance. Amounts already paid to Warp with respect to use of this appliance
shall remain the property of Warp.
12.5 Retention of Appliances by MII. MII shall have the right to retain any
Warp appliances when full payment ($52,000) to Warp for the appliances has been
made. MII shall have the right to use any such appliances for any purposes that
are consistent with its business and in accordance with the terms of
confidentiality described in this agreement.
SECTION 13 - LIMITATION OF REMEDY
13.1 Notwithstanding any other provision of this Agreement, each Party's
total liability for all events giving rise to liability on its part arising out
of or in connection with this Agreement (other than its obligation to meet the
payment obligations or the breach of confidentiality hereunder or license terms)
shall be limited to the amounts paid hereunder. In no event shall either party
be liable for indirect or consequential loss or damage, loss of contract, profit
or revenue, production stoppage or replacement services. The limitation of
liability contained in this clause shall apply whether the liability claim is
based on breach of contract, breach of warranty, negligence, strict liability or
other legal theory.
SECTION 14 - INTELLECTUAL PROPERTY OWNERSHIP
14.1 All Intellectual Property directly relating to Warp Technology,
improvements thereto shall be and remain the sole property of Warp.
14.2 All Intellectual Property directly related to MII Technology, CAP
Network and MII Services shall be and remain the sole property of MII.
14.3 Infringement of Intellectual Property Rights: Each party (in this
clause "the Indemnifying Party") shall indemnify the other party against any
claims (including any reasonable legal costs) in respect of any infringement of
third party intellectual property rights relating to any database, software or
other product licensed to the other party by the Indemnifying Party, provided
that the Indemnifying Party is given full opportunity to defend the claim in
consultation with the other Party.
Page 13 of 17
SECTION 15 - CONFIDENTIALITY
15.1 Parties shall maintain in strict confidence, and shall use and
disclose only as authorized by the other Party, all Confidential Information of
the other Party which it receives in connection with this Agreement and the
transactions contemplated hereby. Each of the Parties agree that it shall not
make use of, disseminate, or in any way disclose any Confidential Information of
the other Party to any third Party, person, firm or business. Each of the
Parties agree furthermore that it shall treat all Confidential Information of
the other Party with the same degree of care as it accords to its own
Confidential Information, and each of the Parties represent that it exercises
reasonable care to protect its own Confidential Information. Each Party Agrees
that it shall disclose Confidential Information of the other party only to those
of its employees, contractors or other agents who need to know such Confidential
Information, and certifies that such employees have previously agreed in
writing, either as a condition to employment or in order to obtain the
Confidential Information, to be bound by terms and conditions substantially
similar to those of this Agreement. The Party receiving Confidential Information
(the "Recipient") shall immediately give notice to the disclosing Party (the
"Discloser") of any unauthorized use or disclosure of the Confidential
Information of the Disclosers. Recipient agrees to assist Discloser in remedying
any such unauthorized use or disclosure of the Confidential Information. Neither
party shall copy, disclose, distribute, license, use or reverse engineer the
other's products except as expressly permitted under this Agreement. Each party
shall take reasonable steps to identify for the benefit and convenience of the
other party and its personnel any information of the nature of Confidential
Information These restrictions shall not be construed to apply to (1)
information generally available to the public, (2) information released by the
other party generally without restriction, (3) information independently
developed or acquired by the party or its personnel without reliance in any way
on other protected information of the other party, (4) information approved for
the use and disclosure of the other party or its personnel without restriction
or (5) information which was rightfully in the Recipient's possession free of
any obligation of confidence at or subsequent to the time it was communicated to
Recipient by Discloser. Notwithstanding the foregoing restrictions, such party
and its personnel may use and disclose any information to the extent required by
an order of any court or other governmental authority.
SECTION 16 - WARRANTY
16.1 It is mutually acknowledged that data entry, communication and storage
are subject to a possibility of human and machine errors, omissions, delays, and
losses, including inadvertent loss of data or damage to media, which may give
rise to loss or damage. Neither party hereto undertakes any liability to the
other for any such errors, omissions, delays, or losses. NEITHER PARTY MAKES NOR
RECEIVES ANY WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION
OF THIS AGREEMENT OR ANY OTHER COMMUNICATION, REGARDING THE PRODUCTS, AND BOTH
PARTIES SPECIFICALLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. NEITHER PARTY UNDERTAKES OR ACCEPTS ANY LIABILITY WHATSOEVER
TO THE OTHER FOR ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS, OR LOSSES UNLESS
CAUSED BY THEIR WILLFUL MISCONDUCT. IN NO EVENT SHALL EITHER PARTY'S DAMAGES IN
ANY LAWSUIT OR OTHER ACTION BROUGHT UNDER THIS AGREEMENT EXCEED THE AMOUNTS PAID
HEREUNDER.
Page 14 of 17
SECTION 17 - MISCELLANEOUS
17.1 Independent Contractor. MII and Warp are independent contractors under
this Agreement, and nothing herein shall be construed to create a partnership,
joint venture, or agency relationship between the parties hereto. Neither party
shall have the authority to enter into agreements of any kind on behalf of the
other party with respect to the subject matter of this Agreement or otherwise to
bind or obligate such other party in any manner to any third party.
17.2 No Conflict of Interest. Each party hereto represents and warrants
that (1) it has full power and authority to undertake the obligations set forth
in this Agreement, and (2) it has not entered into any other agreements that
would render it incapable of satisfactorily performing its obligations hereunder
or that would place it in a position of conflict of interest or be inconsistent
or in conflict with its obligations hereunder.
17.3 Compliance with Law; Assignment. Each party hereto agrees that it
shall comply with all applicable laws and regulations of governmental bodies or
agencies in its performance of its obligations under this Agreement. Each party
represents that it is acting on its own behalf, and not as an agent for or on
behalf of any third party, in entering into this Agreement, and further agrees
that it may not assign its rights or obligations under this Agreement without
the prior written consent of the other party.
17.4 Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be considered
effective when deposited in the mail, postage prepaid, and addressed to the
other party at the address noted above, unless by such notice a different
address shall have been designated.
17.5 Governing Law. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by and
determined in accordance with the laws of the State of Delaware.
17.6 No Waiver. Neither party hereto shall by mere lapse of time, without
giving notice or taking other action hereunder, be deemed to have waived any
breach by the other party of any of the provisions of this Agreement. Further,
the waiver by either party of a particular breach of this Agreement by the other
shall not be construed or constitute a continuing waiver of such breach or of
other breaches of the same or other provisions of this Agreement.
17.7 Scope of Agreement. The parties hereto acknowledge that each has read
this Agreement, understands it, and agrees to be bound by its terms. The parties
further agree that this Agreement is the complete and exclusive statement of
their Agreement relating to the subject matter hereof and supersedes all
proposals (oral or written), understandings, representations, conditions,
warranties, covenants, and other communications between the parties relating
hereto; provided, however, that nothing herein shall serve to supersede or
impair any provision of the License Agreement, it being the intention of the
parties hereto that this Agreement shall supplement and not alter the terms
thereof. This Agreement may be amended only by a subsequent writing that
specifically refers to this Agreement and is signed by the parties, and no other
act, document, usage, or custom shall be deemed to amend this Agreement.
17.8 Conflicts in Terms of Agreement. In the case of a conflict between
terms of this agreement and its exhibits the following order of precedence will
be used (highest to lowest): 1) This agreement; 2) The exhibits to this
agreement except for exhibits containing license agreements; 3) Exhibits to this
agreement containing license agreements.
Page 15 of 17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as set forth below.
WARP SOLUTIONS, INC.
By: ____________________________________________________
Title: ____________________________________________________
Date: April ______, 2003
MIRROR IMAGE INTERNET , INC.
By: ____________________________________________________
Title: ____________________________________________________
Date: April ______, 2003
Page 16 of 17
EXHIBIT A - FEES PAID TO WARP BY MII FOR MII CUSTOMERS USE OF AAT SERVICE
MII will pay Warp an amount equal to one-half of the revenue it receives from
MII customers for the customer's use of the AAT Services based upon Warp
Technology subject to the following terms and limitations:
1. The total amount that MII will pay to Warp shall not exceed $52,000
for each appliance that is used in production by MII for delivery of
AAT Services based upon Warp Technology.
2. The payments to Warp will be made by the end of the month following
the month in which MII receives payment from MII's customer.
3. At such time that payments to Warp are discontinued because MII has
paid an amount equal to $52,000 per appliance, Warp shall be eligible
to receive referral fees related to the AAT Service based upon Warp
technology as described in the body of this agreement. Until such
time, MII shall have no obligation to pay Warp referral fees related
to the AAT Service when Warp refers a prospective customer to MII.
Page 17 of 17
