EXCLUSIVE SUPPLIER AGREEMENT
This Exclusive Supplier Agreement (the "Agreement") is made and entered
into as of this 17 day of August, 2001 (the "Effective Date"), by and between
Viscus, a state of Delaware corporation, having its principal place of business
at 00000 Xxxxxxx Xxxxx Xxxxxxxx XX 00000 ("Customer"), and Make Your Move, Inc.,
a Nevada corporation, having its principal place of business at 000 Xxxxxxxx
Xxxx., Xxxx, Xxxxxx 00000 ("Supplier"), with reference to the following facts:
A. Customer has entered into an agreement with [Wal-Mart] (the "Wal-Mart
Agreement") to operate and manage coffee stores (the "Coffee Stores") within all
Wal-Mart stores located in the territory consisting of [USA]. The term of the
Wal-Mart Agreement is for a period of 5 years commencing on October 2001 and
ending on October 2006.
B. Supplier is in the business of selling computers and computer components
including point-of-sale electronic equipment, hardware, and software, and
providing related services for such use in retail operations, such as the
operation of the Coffee Stores.
C. Customer desires to purchase from Supplier all computers and computer
components including point-of-sale equipment, hardware, and software, and
related services necessary to manage and operate the Coffee Stores and Supplier
desires to provide the foregoing to Customer on the terms and conditions set
forth herein.
Based upon the foregoing, and in consideration of the mutual promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer and Supplier
(collectively, the "Parties") hereby agree as follows,
1. Exclusive Sale and Purchase; Project Plan. Customer and Supplier agree
that so long as the Wal-Mart Agreement remains in effect, Customer shall
purchase exclusively from Supplier, in accordance with the terms of the Project
Plan described below, all computers and computer components, including, without
limitation, all point of sale equipment and other hardware (the "Equipment"),
software manufactured or supplied by Supplier (the "Software"), and the various
training, consulting, installation, and support services (hereinafter
"Services") necessary for Customer to operate and manage the Coffee Stores.
Following the execution of this Agreement, Customer and Supplier mutually agree
to participate in the development and approval of a project plan (the "Project
Plan"). This Project Plan shall provide both Parties with a general overview of
the nature of Customer's operation, and shall clearly specify the Equipment,
Software and Services which Customer will need to purchase from Supplier to
properly manage and operate the Coffee Stores during the term of this Agreement.
The Project Plan, when mutually agreed to by the Parties, shall be set forth in
writing and shall be executed by both Parties. Such Project Plan may be amended,
from time to time, but only upon the mutual written consent of both Parties. If
the Parties are unable to agree in writing to a Project Plan within (30) days
after the execution of this Agreement, either Party may terminate this Agreement
by providing written notice to the other Party prior to execution of the Project
Plan. It is mutually agreed that both Parties shall use their best efforts to
execute the terms and conditions of the Project Plan. When Customer is in need
of Equipment, Software or Services to be provided by Supplier under the terms of
the Project Plan, Customer shall issue a purchase order to Supplier specifying
the type and amount of Equipment, Software and Services to be purchased from
Supplier. Such purchases orders shall be submitted to Supplier within a
reasonable time prior to the time in which Customer will need to have the
Equipment and Software operational. During the term of this Agreement, Customer
agrees that it will not purchase Equipment, Software or Services specified in
the Project Plan from any vendor, other than Supplier, unless Supplier consents
in writing to such purchase.
2. Price and Taxes.
a. Purchase Price. The purchase price for the Equipment, Software and
Services shall be Retail price + 20% [Supplier's direct retail price
listing in effect at the time Customer issues a purchase order above
Supplier's cost at the time Customer issues a purchase order.
b. Prices Exclusive of Installation and Other Charges. All prices are
exclusive of installation and related charges, shipping and insurance
charges which shall be billed separately. Installation and related charges
are subject to change due to Customer's failure to complete site readiness,
non-standard site conditions, force majeure events or delays caused by
Customer. Customer agrees to pay all such additional charges as invoiced by
Supplier. Any such additional charges, as a result of a force majeure
event, shall be pre-established and agreed to between the Parties prior to
any worked performed.
c. Prices Exclusive of Taxes. All prices are exclusive of sales, use,
excise, and other taxes, duties or charges. Unless Customer provides
evidence of tax exempt status, Customer shall pay, or upon receipt of
invoice from Supplier shall reimburse, Supplier for all such taxes or
charges levied or imposed on Customer, or required to be collected by
Supplier, resulting from this transaction or any part thereof.
d. FOB and Insurance. All prices are FOB unless instructed otherwise.
Supplier may arrange for insurance and standard commercial shipping, the
costs of which will be invoiced to Customer.
2.5 Right to Modify Orders. Prior to delivery, Supplier reserves the right
to make substitutions, modifications and improvements to the Equipment and
Software, provided that such substitution, modification or improvement shall not
diminish or materially affect the performance of the Software applications as
they were originally demonstrated to and agreed upon by Customer and Supplier.
3. Payment/Financing. Unless otherwise agreed, invoice payment terms for
all purchases made under this Agreement shall be net ten (10) calendar days on a
per order basis and are subject to credit review by Supplier. All payments shall
be made to Supplier not later than the agreed number of days from date of
invoice. Late payments shall result in the assessment of a late charge equal to
one and one-half percent (1 1/2%) per month on any outstanding balance, or the
maximum amount of interest chargeable by law, whichever is less.
4. Equipment Warranty. Supplier's sole responsibility to Customer with
respect to any Equipment or components and parts manufactured by a third party
and incorporated into the Equipment shall be to pass through to Customer such
original equipment manufacturer's available product warranty. The warranty
provided by said third parties does not cover (i) any item of the Equipment
which has been altered or modified including any change, addition, or
improvement, and (ii) any damage, defects, malfunctions or service failures
caused by:
a. Customer's failure to follow Supplier's or the Equipment
manufacturer's environmental, installation, operation or maintenance
specifications or instructions;
b. Modifications, alterations or repairs made other than by Supplier
or original Equipment manufacturers;
c. Customer's mishandling, abuse, misuse, negligence, or improper
storage, servicing or operation of the Equipment (including without
limitation use of equipment that is not designed or suitable for use in
conjunction with the Equipment purchased from Supplier);
d. Power failures, surges, fire, flood, accident, actions of third
parties or other like events outside Supplier's control. Repairs
necessitated during the warranty period by any of the foregoing causes
specified in Section 4.4 may be made by Supplier, and Customer shall pay
Supplier standard charges for time and materials, together with all
shipping and handling charges arising from such repairs.
THIS WARRANTY CONSTITUTES SUPPLIER'S SOLE AND EXCLUSIVE WARRANTY WITH
RESPECT TO EQUIPMENT AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR
STATUTORY INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5. Software.
a. License to Software. Supplier grants to Customer a non-exclusive,
non-transferable license to use the Software and related documentation
provided hereunder. The license term is perpetual and shall continue as
long as Customer continues as a viable entity, the fees for support and
maintenance are current and the other terms of this Agreement are met. The
Software may include software and documentation that are owned by third
parties and distributed by Supplier under license from the owner.
b. Copies of Software. Customer shall not make any copies of the
Software, except as authorized in writing by Supplier.
c. Confidentiality of Software. Customer shall maintain the
confidentiality of the Software and shall not sub-license, sell, rent,
disclose, make available, or otherwise communicate the Software to any
other person, or use the Software except as expressly authorized in writing
by Supplier.
d. Ownership of Software. The Software and all copies thereof will at
all times remain the sole and exclusive property of Supplier or its
licensor, as applicable, and Customer shall obtain no title to the
Software.
e. Copyright. Customer shall reproduce all copyright notices and any
other proprietary legends on any copy of the Software made by Customer.
f. Alteration. Customer shall not modify, disassemble, or decompile
the Software.
g. Media. If Customer sells or otherwise disposes of media owned by
Customer on which the Software is fixed, such media must be erased before
any sale or disposal.
h. Warranty. Supplier does not warrant that the operation of the
Software will be error free. However, Supplier will use reasonable efforts
to correct any defects reported by Customer in writing or by verbal
notification to Supplier following the date of shipment or installation, if
installation was by Supplier, exclusive of defects caused by physical
imperfections in Software discs due to mishandling, operator error or
interfacing other systems that are not compatible with the operations of
the Equipment.
i. Substantial Compliance. Supplier warrants that the Software
provided under this Agreement substantially complies with the
representations made by Supplier when demonstrating the Software.
THIS PROVISION CONSTITUTES SUPPLIER'S SOLE AND EXCLUSIVE LIABILITY AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE OR NON-CONFORMING SOFTWARE
AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY INCLUDING
THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Title and Risk of Loss.
a. Date of Delivery. Delivery of any item of the Equipment and
Software shall be deemed complete when Customer acknowledges receipt of the
Equipment and Software by signature at time of delivery. Title to, and risk
of loss for, the Equipment and Software sold or licensed under this
Agreement shall pass to Customer upon delivery as defined herein.
b. Security Interest. As security for the full and prompt payment and
performance when due of all obligations of Customer to Supplier under this
Agreement, Customer hereby grants to Supplier a security interest in all
Equipment and Software supplied to Customer hereunder. Customer shall
execute any notice or other documentation as may be reasonably requested by
Supplier at any time in order to accomplish the intentions of this section.
This obligation shall include an obligation to execute any and all
necessary financing statements to perfect the security interest herein
granted to Supplier as well as its ownership interest, if any, herein
evidenced in order to perfect Supplier's interest in the Equipment and
Software and its rights to payment and performance by Customer under this
Agreement. Supplier shall pay all expenses of filing any necessary
financial statements and documents with the appropriate public offices.
7. Installation Services. The following shall apply in the event that
installation and/or integration services are part of any purchase order received
by Supplier under this Agreement. In connection with the providing of
installation and/or integration services, Customer and Supplier agree that the
following shall be applicable:
a. Access to Customers Premises. Customer shall allow employees or
agents of Supplier access to the premises and facilities where the
Equipment and Software is to be installed at all hours consistent with the
requirements of the Project Plan.
b. Access Necessary to Complete Project. Customer shall provide
Supplier with all resources and required documentation, specifications,
procedures, equipment, and systems as well as access to employees, agents,
consultants, or third parties necessary for completion of the installation
services.
c. Environmental. Customer shall assure that the premises will meet
all temperature, humidity controlled, air-conditioned, and other
environmental requirements set forth in the applicable Equipment
specifications and will be dry and free from dust and in such condition as
not to be injurious to the employees or agents of Supplier or the Equipment
to be installed.
d. Mechanical. Customer shall provide all cabling, patch cables, patch
panels, conduits, floor reinforcements or other mechanical modifications
pertinent to installation of the Equipment for all sites where the
Equipment and Software will be installed.
e. Electrical. Customer shall provide ample electric current of proper
voltage for any necessary purpose suitable terminated in rooms and work
spaces where it is required.
f. Space for Installation. Customer shall provide suitable and easily
accessible space for installation of the Equipment within the premises.
g. Permits and Approvals. Customer shall be responsible for the timely
and proper securing of all permits, licenses, consents, including
landlords, and approvals in connections with the purchase and installation
of the Equipment, if any. h. Indemnification. Customer specifically agrees
to indemnify and hold Supplier harmless from all liability and costs
arising from Customer and its contractors, subcontractors and employees for
site preparation efforts or for the latent conditions of the site.
i. Installation. Supplier will install the Equipment and Software at
the premises requested by Customer. Customer will pay an additional charge
for any required cable or conduit or additional coordination performed by
Supplier. Supplier will use its best efforts to install the Equipment and
Software without damaging Customer's premises. Supplier, however, will not
be responsible for replacing ceiling tiles, painting, plastering or making
other repairs to Customer' premises resulting from the installation of the
Equipment and Software. Customer hereby holds Supplier harmless from any
such damage to Customer' property, unless the damages are the result of a
negligent act or omission of Supplier's employee or subcontractor.
j. Completion of Installation. Supplier shall complete the
installation services in accordance with Supplier's normal installation
practices. Supplier shall perform its standard acceptance testing on the
installed Equipment and Customer agrees to monitor said testing. Upon
completion thereof, as described above, Supplier shall notify Customer the
Equipment has been installed and operates in accordance with applicable
test and performance specifications. The date of such notification shall be
the installation date. Supplier may at its sole discretion use
subcontractors to provide installation services.
8. Training, Maintenance, and Support Services.
a. Training. Supplier will provide documents, manuals, and visual aids
to be utilized in the required training of Customer's employees in use of
Equipment and Software purchased under this Agreement.
b. Company Trainers. Customer shall designate specific members of its
staff as "Company Trainers." once fully trained and certified by Supplier,
Company Trainers will become the first resources to be contacted by
Customer' personnel who require assistance. Questions or problems that
cannot be resolved by Company Trainers will be referred to Supplier.
Company Trainers may be required to attend refresher or re-certification
training from time to time if necessitated by changes, expansion or
improvements in said Equipment and Software. The Parties agree that
training of the Customer's "Trainers" shall commence on or about end of
2001. In situations where it is necessary for Supplier's personnel to
travel in order to provide services for Customer, Customer agrees to pay
all travel expenses for transportation, food and lodging.
c. Modifications and Customization of Software. Suppliers shall not be
responsible for providing any customizations to the Equipment and Software
purchased under this Agreement, including but not limited to "Interfaces"
to other software or hardware systems owned, leased, or licensed by
Customer. If Customer desires specific modifications and/or customizations
to the Equipment and Software purchased under the Agreement, then Customer
may retain Supplier's services for the development of said applications and
will be contracted under a separate agreement.
d. Maintenance Fees. Customer agrees to pay monthly maintenance and
support fees for web-sites development and maintenance.
e. Support Services. So long as Customer is current on monthly support
and maintenance fees, Supplier shall provide the following support services
for Software purchased under this Agreement.
i. Upgrades. Supplier shall provide any and all upgrades,
enhancements, or additions to existing functionality of Software
purchased under this Agreement. Customer acknowledges that such
upgrades and enhancements may not be operative in conjunction with
either customized or modified software created by or for Customer, and
that Supplier will not be obligated to retrofit the same. Except for
those modifications and customizations agreed upon and performed by
Supplier on behalf of Customer.
ii. Assistance. For the first thirty (30) day period following
the installation date at each customer location, Customer shall be
entitled to 1 to 2 hours of assistance from Supplier at no charge each
month. Calls for assistance which are in excess of the allowances
stated above shall be charged at the rate of Industrial Standard.
iii. Defects. In the event that a problem is reported to Supplier
as a defect in an Equipment or Software purchased under this
Agreement, and Supplier's diagnosis confirms that the defect is
related to customizations or modifications to said products made by
Customer or an agent of Customer, Supplier retains the right to
invoice Customer for all time spent diagnosing said problem at a rate
of Industrial Standard per hour. Any further work will be billable
only at Customer' option and request pursuant to a purchase order
and/or separate Service Agreement.
9. Excusable Delay. Supplier shall be excused from performance under the
purchase order and not be liable to Customer for delay in performance
attributable in whole or in part to any cause beyond its reasonable control,
including but not limited to, action or inaction of any government, war, civil
disturbance, insurrection, sabotage, act of public enemy, labor strike,
difficulty or dispute, unpredictable failure or delay in delivery by Supplier's
suppliers or subcontractors, transportation difficulties, shortage of energy,
materials, accident, fire, flood, storm or other act of God, or Customer' fault
or negligence. In the event of an excusable delay, Supplier shall make
reasonable efforts to notify Customer of the nature and extent of such a delay
and Supplier will be entitled to a reasonable schedule extension. In the event a
delay results from Customer's fault or negligence, Supplier will also be
entitled to an equitable adjustment calculated on a time and materials basis
which shall be mutually agreed upon.
10. Change, Cancellation, and Termination.
a. Cancel of Purchase Order. If Customer cancels a purchase order
within thirty (30) days prior to scheduled shipment date, Customer shall
pay to Supplier a restocking fee of Twenty percent (20%) of the canceled
purchase order. Supplier shall not assess any cancellation charges if
Supplier cancels an order.
b. Breach of Agreement. In the event that either Party breaches any
provision of this Agreement, and fails to cure such breach within thirty
(30) days after written notice from the other Party, the breaching Party
shall be in default.
c. Liability of Supplier. Supplier's maximum liability and Customer's
maximum recovery for any claim arising out of or in connection with the
sale or use of the Equipment and Software shall not in the aggregate exceed
the price paid by Customer for such Equipment and Software hereunder.
d. Changes to Software. Supplier agrees that it will not make changes
in the Software that will prevent Customer from running the Software on the
Equipment provided by Supplier as part of its system for a One (1) year
period following installation. Supplier agrees that if such event occurs,
it will provide a refund to Customer calculated upon a Month-by-Month
pro-rated depreciation schedule. The Parties understand that the
aforementioned hardware will only be guaranteed to operate with the
Software for a One (1) year period. Hardware upgrades may be required in
order to operate future and improved versions of the Software. Supplier
shall provide Three (3) months advance notice of anticipated changes in
future versions of the Software that will require Customer to upgrade or
replace existing Equipment in order to operate said future versions of the
Software upon its general release.
11. Infringement Indemnification.
a. Notification of Infringement. Customer agrees to promptly notify
Supplier in writing of any notice, suit, or any action against Customer
based upon a claim that the Software infringes a U.S. patent, copyright,
trademark, or trade secret of a third party. Supplier will defend at its
expense any such action, except as excluded below, and shall have full
control of such defense including all appeals and negotiations, and will
pay all settlement costs, or damages awarded against Customer, but Supplier
shall not be liable to Customer for special incidental, indirect or
consequential damages.
b. Replacement of Infringed Software. In the event of such notice,
suit or action, Supplier will at its expense procure for Customer the right
to continue using the Software, or modify the Software to render such
non-infringing, or accept, return, and replace such with substantially
equivalent non-infringing software, or accept return of the Software and
refund or credit to Customer the amount of the original purchase price,
less a reasonable charge for depreciation (based upon a Month by Month
usable life).
c. Limitations on Infringement Liability. The preceding agreements by
Supplier in this section shall not apply to any hardware, software, or
related product or portion thereof manufactured to specifications furnished
by or on behalf of Customer, to any infringement arising out of the use of
the Software in combination with other hardware, software, or related
product not furnished by Supplier, or to any patent, copyright, trademark
or trade secret in which Customer or subsidiary or affiliate thereof, has a
direct or indirect interest, or if Customer has not provided Supplier with
prompt notice, authority, information and assistance necessary to defend
the action. The foregoing states the entire liability of Supplier for
patent, copyright, trademark and trade secret infringements by the Software
or portion thereof.
12. Technical Data and Invention.
a. Technical Data. Unless specifically identified and priced in this
contract as a separate item or items to be delivered by Supplier (and in
that event, except to the extent so identified and priced), the sale of
goods hereunder confers on Customer no right in, license under, access to,
or entitlement of any kind, to any of Supplier's technical data including
but not limited to design, process technology, software and drawings, or to
technical data including but not limited to design, process technology,
software and drawings, or to Supplier's invention (whether or not
patentable) irrespective of whether any such technical data or invention or
any portion thereof arose out of work performed under or in the course of
this contract, and irrespective of whether Customer has paid or is
obligated to pay Supplier for any part of the design and/or development of
the goods.
b. Data Received from Customer. Supplier shall not be obligated to
safeguard or hold confidential any data whether technical or otherwise,
furnished by Customer for Supplier's performance of this contract unless
(and only to the extent that) Customer and Supplier have entered into a
separate mutual non-disclosure and confidentiality agreement.
c. Data Received from Supplier. Customer acknowledges and recognizes
that Supplier is in the business of selling computers, computer components
and equipment, and software, which business is highly competitive, and that
Customer, during its relationship with Supplier, will have access to and
become familiar with certain proprietary information of Supplier, including
without limitation, client information, design information, methods of
operation, and technical data of a highly confidential nature. During the
term of this Agreement and at all times thereafter, Customer agrees that,
unless this information has already become common knowledge or unless
required to disclose it by a court order or governmental process, Customer
shall hold the information in trust solely for Supplier's benefit and
Customer shall not use or exploit such information for its own benefit, and
shall not directly or indirectly disclose it to any person or entity, other
than Customer's employees or personnel, without Supplier's prior written
permission. Customer may disclose such information to its employees and
personnel, but only if such employees and personnel have a need to know of
such information in the course of Customer's operation of its business.
With respect to all confidential information, Customer will instruct its
employees and personnel to keep this information confidential and not to
disclose it directly or indirectly to any person or entity without
Supplier's prior written permission.
13. Sale or Cessation of Customer's Business. In the event of (i) a sale or
other disposition of Customer's business, either by sale or other disposition of
all or substantially all of its assets or the sale or other disposition of all
or a majority of the stock/membership interests in Customer, or (ii) an
assignment or other conveyance of its rights to manage and operate the Coffee
Stores under the Wal-Mart Agreement, Customer agrees that it will cause the
transferee of the business or the assignee of its rights under the Wal-Mart
Agreement to assume Customer's obligations under this Agreement and no such
transfer or assignment shall operate to release Customer from Customer's
obligations under this Agreement without the prior written consent of Supplier
in Supplier's sole and absolute discretion. Customer further agrees that prior
to execution of this Agreement, it will provide Wal-Mart with notice of this
Agreement and the provisions of this Section 13. In the event of a liquidation
or other cessation of Customer's business (without sale or transfer of the
business), Customer shall give Supplier at least Three (3) months prior written
notice of its intention to discontinue its business. Failure to comply with this
Section 13. Shall constitute a material breach of this Agreement by Customer.
14. Assignment. Neither Party may assign this Agreement in whole or in part
without the prior written consent of the other Party. (It shall not be
considered an "assignment" if either Party applies the contract to wholly owned
subsidiaries, or, to other ventures in which they remain the controlling entity,
provided, however that the forgoing shall not release such Party from or affect
such Party's obligations under this Agreement.)
15. Term. This Agreement shall become effective on the date upon which the
Party last signing below signs this Agreement and shall remain in effect for so
long as the Wal-Mart Agreement remains in effect, unless otherwise terminated
earlier pursuant to the terms of this Agreement or terminated earlier by mutual
written consent of the Parties. Furthermore, either Party may terminate this
Agreement immediately in the event that the other Party has breached a provision
of this Agreement and has failed to cure the breach within a reasonable time or
in the event that the other Party shall become liquidated, dissolved, bankrupt
or insolvent, or shall take any action to be so declared.
16. Miscellaneous.
a. Entire Agreement. This Agreement and attached Exhibits constitute
the entire agreement between Customer and Supplier with respect to the
subject matter hereof and there are no representations, understandings or
agreements which are not fully expressed in this Agreement.
b. Cooperation. The Parties acknowledge and agree that successful
completion of this Agreement shall require the full and mutual good faith
cooperation of each of the Parties.
c. Amendments. No amendment, change, waiver, or discharge hereof shall
be valid unless in writing and signed by the Party against which such
amendment, change waiver, or discharge is sought to be enforced.
d. Nevada Law; Exclusive Jurisdiction and Venue. This Agreement shall
be governed in all respects by the laws of the State of Nevada without
regard to its conflict of laws provisions, and Corporation and Contractor
agree that the sole and exclusive venue and jurisdiction for disputes
arising from this Agreement shall be the appropriate state or federal court
located in the City of Reno, and Customer and Supplier hereby submit to the
venue and jurisdiction of such courts.
e. Notice. Any notice provided pursuant to this Agreement, if
specified to be in writing, shall be in writing and shall be deemed given
(i) if by hand delivery, upon receipt thereof, (ii) if by mail, three (3)
business days after deposit in the United States mails, postage prepaid,
certified mail, return receipt requested, (iii) if by facsimile
transmission, upon electronic confirmation thereof, (iv) if by electronic
mail (e-mail), upon electronic confirmation thereof or (v) if by next day
delivery service, upon such delivery. All notices shall be addressed as
follows (or such other address as either Party may in the future specify in
writing to the other):
In the case of Supplier: In the case of Customer:
Attn: Xx. Xxxxx Rolling Attn: Xxxx X. Ban
000 Xxxxxxxx Xxxx. 00000 Xxxxxxx Xxxxx
Xxxx, Xxxxxx 00000 Xxxxxxxx, XX 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Email: ___________________________ Email: xx@xxxxxx.xxx
a. Waiver. The wavier or failure of either Party to exercise any right
in any respect provided for herein shall not be deemed a waiver of any
further right hereunder.
b. Interpretations. All references to "Business Days" shall mean all
days excluding Saturdays, Sundays and legal holidays observed in Reno,
Nevada. All references to the masculine, feminine, neuter or singular shall
also refer to the masculine, feminine, neuter or plural, where applicable.
c. Severability. If any section, portion, provision, paragraph,
clause, sentence, language or word of this Agreement is determined to be
invalid, illegal, void, voidable or unenforceable for any reason
whatsoever, this Agreement shall be read as if it did not contain such
section, portion, provision, paragraph, clause, sentence, language or word,
it is to that extent to be deemed omitted, and the balance of this
Agreement shall remain enforceable.
d. Counterparts. This Agreement may be executed in several
counterparts, including by means of facsimile signatures, all of which
taken together shall constitute the entire agreement between the Parties
hereto.
e. Headings. The section headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof.
f. Approvals and Similar Actions. Unless otherwise provided herein,
where agreement, approval, acceptance, consent or similar action by either
Party hereto is required by any provision of this Agreement, such action
shall not be unreasonably delayed or withheld. g. Attorneys' Fees. Each
Party hereto shall be responsible for and shall pay for their own costs and
attorneys' fees. Notwithstanding the foregoing, if either Party brings any
action or proceeding, subsequent to the execution of this Agreement, to
interpret or enforce any provision hereof, the prevailing Party shall be
entitled to reasonable fees and costs, including attorneys' fees.
h. Further Documents. Each Party agrees to perform any further acts
and to execute and deliver any additional documents which may be reasonably
necessary to effectuate the provisions of this Agreement.
CUSTOMER: SUPPLIER:
Viscus Coffee International Inc., Make Your Move, Inc., a Nevada
a Delaware corporation Corporation
By_______________________________ By____________________________
Name____________________________ Name__________________________
Title_____________________________ Title_________________________
