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Exhibit 10.15
REGISTRY MAGIC INCORPORATED
MASTER SOFTWARE JOINT DEVELOPMENT AGREEMENT
This Agreement ("Agreement") is made as of this 24th day of September,
1998 ("Effective Date"), by and between Registry Magic Incorporated, a Florida
corporation, having its registered offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("RMI") and Veritel Corporation of America (also known as
Veritel Corporation), an Illinois corporation, having its registered offices at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Veritel").
WHEREAS, RMI is a leading developer, manufacturer, and marketer of speech
recognition technology products and services; and
WHEREAS, Veritel is a leading developer, manufacturer, and marketer of
voice verification technologies, products and components; and
WHEREAS, Veritel desires to engage RMI from time to time pursuant to one
or more Work Statements to develop, create, test, modify, and deliver certain
programming materials as works made for hire, and RMI is interested in accepting
such engagements, subject to the parties' further agreement on the scope terms
of each such Work Statement; and
WHEREAS, Veritel and RMI mutually desire to set forth in this Agreement
certain terms applicable to all such engagements;
WHEREAS, Veritel is willing to accept, wishes to distribute, and
compensate RMI for a variety of RMI's products,
WHEREAS, RMI is willing to accept, wishes to distribute, and compensate
Veritel for a variety of products which Veritel may develop jointly with RMI,
NOW THEREFORE in consideration of the premises and intending to be legally
bound, the parties agree as follows:
1. DEFINITIONS
1.1. "CODE" shall mean computer programming code. Code shall include any
Maintenance Modifications or Minor Enhancements thereto created by
RMI from time to time as specified in SECTION 15.3.
1.2. "SOURCE CODE" shall mean computer programs, instructions and related
material written in a human-readable source language in form capable
of serving as the input to a compiler or assembler program, and in
form capable of being modified, supported and enhanced by
programmers reasonably familiar with the source language.
1.3. "APPLICATION SOURCE CODE" shall mean the Source Code that defines
and controls the user interface and/or controls data input and
output. It specifically excludes Core Source Code.
1.4. "CORE SOURCE CODE" shall mean the: (a) Code which serves the purpose
of voice recognition, (b) Code which serves the purpose of voice
verification, and/or (c) Any Code which RMI and Veritel deem to be
outside the scope of the Work Statement
1.5. "OBJECT CODE" shall mean the machine-readable form of the Code.
1.6. "DERIVATIVE WORK" shall mean a work that is based upon one or more
pre-existing works, such as a revision, modification, translation,
abridgement, condensation, expansion, or any other form in which
such preexisting works may be recast, transformed, or adapted, and
that if prepared without authorization of the owner of the copyright
in such preexisting work, would constitute a copyright infringement.
For purposes hereof, a Derivative Work shall also include any
compilation that incorporates such a preexisting work.
1.7. "ERROR" shall mean any error, problem, or defect resulting from (1)
an incorrect functioning Code, or (2) an incorrect or incomplete
statement of diagram in Documentation, if such an error, problem,
or defect renders the Code inoperable, causes the Code to fail to
meet the specifications thereof, causes the Documentation to be
inaccurate or incomplete in any material respect, causes incorrect
results, or causes incorrect functions to occur when any such
materials are used.
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1.8. "INTELLECTUAL PROPERTY RIGHT" means any and all rights existing from
time to time under patent law, copyright law, , moral rights law,
trade secret law, trademark law, unfair competition law, and any
other similar proprietary rights law, and any and all renewals,
extensions, and restorations thereof, now or hereinafter in force
and effect.
1.9. "DELIVERABLES" shall mean materials developed for or delivered to
Veritel by RMI under this Agreement and under any Work Statement
issued hereunder.
1.10. "PARTIES" shall mean RMI and Veritel. "PARTY" shall mean RMI or
Veritel interchangeably.
1.11. "SPECIFICATIONS" means the functional performance parameters for the
Software Deliverable as stated within the Attachment(s).
1.12. "MINOR ENHANCEMENTS" means upgrades and features that do not result
in major functional changes or define a new purpose of use for the
Product.
1.13. "MAJOR ENHANCEMENTS" means upgrades and features that result in
major functional changes or define a new purpose of use for the
Product.
1.14. "MAJOR ENHANCEMENTS" means upgrades and features that result in
major functional changes or define a new purpose of use for the
Product.
1.15. "WORK STATEMENT" shall mean a purchase offer of Veritel, a proposal
of RMI, or another written instrument that meets the following
requirements;
1.15.1. Includes substantially the following statement: "This is a
Work Statement under the Master Software Development
Agreement ....."
1.15.2. Is signed on behalf of both parties by their authorized
representatives
1.15.3. Contains the following five mandatory items; (1) Description
and/or specifications of the services to be performed and
the Deliverables to be delivered to Veritel, (2) the name
and address of a Technical Coordinator for each of Veritel
and RMI, (3) the amount, schedule, and method of payment,
(4) the time schedule for performance and for delivery of
the Deliverables, and (5) completion and acceptance criteria
for the Deliverables.
1.15.4. In addition, when applicable, the Work Statement may
include; (1) Provisions for written and/or oral progress
reports by the RMI, (2) detailed functional and technical
specifications and standards for all services and
Deliverables, including quality standards, (3) documentation
standards, (4) Lists of any special equipment to be procured
by RMI or provided by Veritel for use in performance of the
work, (5) test plans and scripts, and (6) such other terms
and conditions as may be mutually agreeable between parties.
2. CONTRACT ADMINISTRATION
2.1. CONTACT COORDINATOR. Upon execution of this Agreement, each Party
shall notify the other party of the name, business address, and
telephone number of its Contract Coordinator. The Contract
Coordinators of each Party shall be responsible for arranging all
meetings, visits, and consultations between the parties that are of
a non-technical nature. The Contract Coordinators shall also be
responsible for receiving all notices under this Agreement and for
all administrative matters such as invoices, payments, and
amendments.
2.2. TECHNICAL COORDINATOR. Each Work Statement shall state the name
business address, and telephone number of the Technical Coordinators
of each party. The Technical Coordinators of each party designated
for a particular Work Statement shall be responsible for technical
and performance matters, and the transmission and receipt of both
Deliverables and technical information between the parties, insofar
as they relate to such Work Statement
2.3. ISSUANCE OF WORK STATEMENTS. The initial Work Statement(s) agreed to
by the Parties are set forth as attachments to this Agreement.
Additional Work Statements, regardless of whether they relate to the
same subject matter as initial Work Statement(s), shall become
effective upon execution by authorized representatives of the
Parties.
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3. CHANGES
3.1. Changes in any Work Statement or in any of the Specifications of
Deliverables under any Work Statement shall become effective only
when a written change request is executed by authorized
representatives of both parties. Change requests that do not
substantially affect the nature of Deliverables, their performance
or functionality, and that do not change schedules by more than one
week or development hour amounts by more than 5% may be requested
and/or accepted by the parties' Technical Coordinators. All other
change requests with respect to this Agreement, and Work Statement,
or any Specifications or Deliverables must be requested and/or
accepted by both parties' Contract Coordinators. RMI may not decline
any change requests that increase the cost or magnitude of the
performance, provided that the changes are reasonable in scope and a
commensurate increase in compensation is fixed.
4. NOTICE OF DELAY
4.1. Each Party agrees to notify the other Party promptly of any factor,
occurrence, or event coming to its attention that may affect their
ability to meet the requirements of any Work Statement issued under
this Agreement, or that is likely to occasion any material delay in
delivery of Deliverables. Such notice shall be given in the event of
any loss or reassignment of key employee, threat of strike, or major
equipment failure.
5. COMPENSATION
5.1. Amounts and modes of payment for all services to be performed and
Deliverables shall be set forth in each Work Statement. The parties
shall agree to use one of the following modes of payment:
5.1.1. FIXED PRICE. If RMI quotes a price for particular services
or Deliverables and such price is specified without
qualification in the application Work Statement, the amount
quoted shall be deemed a fixed price. Unless the Work
Statement provides for progress payments or deferral of
payment after completion, Veritel shall pay the full amount
of the fixed price upon RMI's satisfactory completion of the
specified services or upon Veritel's acceptance of
particular Deliverables. A Work Statement may alternatively
provide for payment to be based on a fixed priced for
certain services to be rendered over a specified period of
time. Unless otherwise specified in the Work Statement, such
payment for periodic services shall accrue on a monthly
basis and be prorated for any partial periods.
5.1.2. TIME AND MATERIALS. For services and Deliverables that
are not suitable for payment on the basis of a fixed
price, the Work Statement may provide for payment on the
basis of time and materials. Payment under this method shall
be determined according to the hourly rates set for RMI's
employees by skill, and possibly by level.
6. INVOICING
6.1. RMI shall submit invoices to Veritel for payment for work and/or
deliverables at such time or times as payment becomes due under each
Work Statement. Invoices shall be paid on payment dates as specified
in the Work Statement and shall be addressed to Veritel's Contract.
All invoices shall specifically refer to the Work Statement to which
they relate. Whenever an invoice includes charges for time and
materials, the invoices shall indicate the skill and hours of the
employees performing the work. Each invoice shall separately set
forth travel expenses, if any, authorized by Veritel for
reimbursement. Supporting documentation (e.g., receipts for air
travel, hotels, and rental cars) called for by Veritel's standard
reimbursement policies shall accompany any such invoice. Any
extraneous terms on RMI's invoices shall be void and of no effect.
7. EXPENSES
7.1. Except as expressly agreed otherwise by Veritel in a Work Statement,
RMI shall bear all of its own expenses arising from its performance
of its obligations under this Agreement and each Work Statement
issued hereunder, including (without limitation) expenses for
facilities, work spaces, utilities, management, clerical and
reproduction services, supplies, and the like.
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8. REPORTS
8.1. BI-MONTHLY REPORTS. RMI agrees to provide to Veritel at least once
every two months a written report of the progress of the work
required under each Work Statement issued hereunder, and anticipated
problems (resolved or unresolved), and any indication of delay in
fixed or tentative schedules
8.2. SITE VISITS. RMI shall, from time to time and upon reasonable
notice, allow access to its premises by Veritel for purposes of
design review, "walkthroughs," and discussions between Veritel and
RMI's management and personnel concerning the status and conduct of
work being performed under any Work Statements issued hereunder.
9. DELIVERY AND ACCEPTANCE
9.1. RMI shall deliver all deliverables, upon completion, to Veritel's
Technical Coordinator for testing and acceptance. RMI shall
memorialize such delivery in a Delivery Confirmation that sets forth
the nature and condition of the Deliverables, the medium of
delivery, and the date of their delivery. Veritel's Technical
coordinator shall countersign such delivery Confirmation so as to
indicate its receipt of the contents described therein, and delivery
confirmation shall thereupon be transmitted to the parties' Contract
Coordinator. Unless a different procedure for testing and acceptance
is set forth in a Work Statement, Veritel's Technical Coordinator
shall commence acceptance testing following its receipt of the
Deliverables. Upon completion of such testing, which shall take no
more than 30 days, Veritel shall issue to RMI's Technical
Coordinator notice of acceptance or rejection of the Deliverables.
In the event of rejection, Veritel shall give its reasons for
rejection to RMI's Technical Coordinator in reasonable detail. RMI
shall use commercially reasonable efforts to correct any
deficiencies or non-conformities and resubmit the rejected items as
promptly as possible. If (1) Veritel fails to complete acceptance
testing within 30 days of product delivery except in an instance of
Force Majeure or (2) RMI commences and completes a sale to a third
party of the product or Deliverable as developed and delivered to
Veritel, and as permitted under this agreement, the product shall be
deemed as having passed Veritel's acceptance testing.
10. INVENTIONS
10.1. INVENTION DEFINED. An "Invention" shall mean any idea, design,
concept, technique, invention, discovery, or improvement, regardless
of patentability, made solely by either Party, or jointly by both
Parties during the term of this Agreement and only in the
performance of any work under any Work Statement issued hereunder,
provided that the reduction to practice thereof occurs during the
term of this Agreement and in the performance of work under a Work
Statement issued hereunder.
10.2. VESTING OF RIGHTS. Each Party hereby assigns to the other Party a
perpetual, royalty-free, unrestricted license to the other, and it's
successors, all Inventions, together with the right to seek
protection by obtaining joint ownership of patent rights therefor
and to claim all rights or priority thereunder, and the same shall
become and remain the property of each Party regardless of whether
such protection is sought. Each Party shall promptly make a complete
written disclosure to the other party, of each Invention not
otherwise clearly disclosed to the other in the pertinent
deliverables, specifically pointing out features or concepts that
either Party believes to be new or different. Each Party shall work
jointly and at a shared expense to cause patent applications to be
filed thereon, through attorneys jointly agreeable by both Parties,
and shall forthwith co-name the other Party, and their successors,
as co-inventors of all such applications and provide a perpetual,
royalty-free, unrestricted license to the other Party, its
successors, and assigns. Each Party agrees to work together with
best commercial efforts in connection with the preparation and
prosecution of any such patent application and shall cause to be
executed all such assignments or other instruments or documents as
Veritel and/or RMI may consider necessary or appropriate to carry
out the intent of this Agreement.
10.3. AVOIDANCE OF INFRINGEMENT. In performing services under this
Agreement, each Party agrees to avoid designing or developing any
items that infringe one or more patents or other intellectual
property rights of any third party. If either Party becomes aware of
any such possible infringement in the course of performing work
under any Work Statement issued hereunder, that Party shall
immediately so notify the other Party in writing.
11. OWNERSHIP
11.1. OWNERSHIP OF PRODUCT DEVELOPED IN WORK STATEMENT. For each
development project, both Parties will own international
distribution rights of the Product Developed as part of the Work
Statement, unless otherwise stated within the Work Statement.
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11.2. PRE-EXISTING WORKS. In the event that any Deliverable or portion of
any Deliverable constitutes a derivative Work of any preexisting
work, each Party shall use best commercial efforts to ensure that
the Work Statement pertaining to such deliverable so indicates by
references to (1) the nature of such preexisting work; (2) its
owner; (3) any restrictions or royalty terms applicable to each
Party's use of such preexisting work or each Party's exploitation of
the Deliverable as a Derivative Work thereof; and (4) the source of
each Party's authority to employ the preexisting work in the
preparation of the deliverable. Unless otherwise specifically agreed
in the Work Statement pertaining to such deliverable, before
initiating the preparation of any deliverable that is a Derivative
Work of a preexisting work each Party shall cause the other Party,
its successor, and assigns, to have and obtain the irrevocable,
nonexclusive, worldwide, royalty-free right and license to (a) use,
execute, reproduce, display, perform, distribute internally or
externally, sell copies of, and prepare Derivative Works based upon
all preexisting works and Derivative Works thereof and (b) authorize
or sublicense others from time to time to authorize or sublicense
others from time to time to do any or all of the foregoing.
11.3. PATENT LICENSE FOR PRODUCT DEVELOPED IN WORK STATEMENT. For Products
jointly owned and developed under this agreement, each Party hereby
agree to co-name the other Party in any and all patents that arise
from the work performed under an agreed upon Work Statement. Such
patents shall be co-owned and each Party hereby grants to the other
Party, its successors, and assigns, the royalty-free, worldwide,
nonexclusive right and license under any patents owned by the Party
as a result of work performed under this agreement, or with respect
to which the Party has a right to grant such rights and licenses, to
the extent required by the other Party to exploit the Deliverables
and exercise its full rights in the deliverables, including (without
limitation) the right to make, use, and sell products and services
based on or incorporating such Deliverables.
12. TAXES
12.1. The fees listed in this Agreement or any Attachment(s) do not
include taxes. RMI shall be responsible for paying all taxes imposed
by any federal, state, or local government agency for any payment
made by Veritel to RMI pursuant to this Agreement (including any
sales, use, property, value-added taxes), whether such taxes are now
or hereafter imposed.
13. INFRINGEMENT WARRANTY AND INDEMNITY
13.1. RMI INFRINGEMENT WARRANTY. RMI represents and warrants that: (i) RMI
owns, or has acquired, all Intellectual Property Rights incorporated
into or provided with respect to the Software Deliverables, and that
it is authorized to grant the licenses under this Agreement; and
(ii) the Software Deliverables does not infringe any third party
Intellectual Property Rights. The foregoing representation and
warranty, and any rights provided in this SECTION 13, are solely for
the benefit of Veritel. Veritel may make such warranties to its
sublicensees as it deems appropriate but may not under any
circumstances make any warranty on behalf of RMI or pass RMI's
warranty through to any sublicensee.
13.2. INDEMNIFICATION BY RMI. RMI shall indemnify and hold Veritel, its
subsidiaries, affiliates, shareholders, directors, officers,
successors and assigns harmless from and against any and all party
claims, suits, and liabilities (including reasonable attorneys' fees
and expenses) arising out of: (i) the inaccuracy of any
representation or warranty made by RMI in this SECTION 13; or (ii)
any claim that the RMI application, software, computer programming,
system, or technology into which the Software Deliverable may be
incorporated infringes any third party Intellectual Property Right;
provided that Veritel promptly notifies RMI in writing of any such
third party claim and that RMI shall have sole control of the
defense of any such third party intellectual property claim and all
negotiations for settlement. For purposes of this Agreement "Claims"
shall mean claims, litigation, actions, suits, administrative
proceedings, losses, damages, injuries, liabilities, demands,
judgments, settlements, costs and expenses (including, but not
limited to reasonable attorneys' fees and expenses), penalties and
compensatory, multiple, exemplary, and punitive damages.
Notwithstanding the foregoing, RMI shall be entitled to be
represented by separate counsel at its own expense.
13.3. NO INDEMNIFICATION OBLIGATION. RMI shall have no liability for any
third party claim of infringement of Intellectual Property Rights
based on: (i) use of a superseded or altered release of the Software
Deliverables if the alleged infringement would have been avoided by
the use of a current, unaltered release of the Software
Deliverables; or (ii) the combination, operation, or use of the
Software Deliverables with applications, software, computer
programming, system, or technology if the alleged infringement would
have been avoided by the use of the Software Deliverable without
such applications, software, computer programming, system, or
technology.
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13.4. OPTION TO AVOID INFRINGEMENT. In the event that, in RMI's opinion,
any portion of the Software Deliverable is likely to or does become
the subject of a third party claim alleging violation of
Intellectual Property Rights, RMI may procure for Veritel: (i) the
right to continue using the Software Deliverable; (ii) modify the
Software Deliverable to make it noninfringing; or (iii) or replace
the Software Deliverable with a functionally equivalent (as
determined by RMI), noninfringing replacement.
13.5. COMPLETE LIABILITY OF RMI. THIS SECTION 13 SETS FORTH THE COMPLETE
LIABILITY OF RMI WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS AND SECTION 13.4 SETS FORTH THE EXCLUSIVE REMEDY
WITH RESPECT THERETO.
13.6. VERITEL INFRINGEMENT WARRANTY. Veritel represents and warrants that:
(i) Veritel owns, or has acquired, all Intellectual Property Rights
incorporated into or provided with respect to the CVS application
and Veritel's APIs as delivered to RMI (the "Veritel Deliverables")
for use in developing Deliverables, and that it is authorized to
grant the licenses under this Agreement; and (ii) the Veritel
Deliverables does not infringe any third party Intellectual Property
Rights. The foregoing representation and warranty, and any rights
provided in this SECTION 13, are solely for the benefit of RMI.
Veritel may make such warranties to its sublicensees as it deems
appropriate but may not under any circumstances make any warranty on
behalf of Veritel or pass Veritel's warranty through to any
sublicensee.
13.7. INDEMNIFICATION BY VERITEL. Veritel shall indemnify and hold RMI,
its subsidiaries, affiliates, shareholders, directors, officers,
successors and assigns harmless from and against any and all party
claims, suits, and liabilities (including reasonable attorneys' fees
and expenses) arising out of: (i) the inaccuracy of any
representation or warranty made by Veritel in this SECTION 13; or
(ii) any claim that the Veritel Deliverables infringe any third
party Intellectual Property Right; provided that RMI promptly
notifies Veritel in writing of any such third party claim and that
Veritel shall have sole control of the defense of any such third
party intellectual property claim and all negotiations for
settlement. For purposes of this Agreement "Claims" shall mean
claims, litigation, actions, suits, administrative proceedings,
losses, damages, injuries, liabilities, demands, judgments,
settlements, costs and expenses (including, but not limited to
reasonable attorneys' fees and expenses), penalties and
compensatory, multiple, exemplary, and punitive damages.
Notwithstanding the foregoing, RMI shall be entitled to be
represented by separate counsel at its own expense.
13.8. COMPLETE LIABILITY OF VERITEL. THIS SECTION 13 SETS FORTH THE
COMPLETE LIABILITY OF VERITEL WITH RESPECT TO INFRINGEMENT OF
INTELLECTUAL PROPERTY RIGHTS.
14. REPRESENTATIONS AND WARRANTIES
14.1. Representations and Warranties of RMI.
14.1.1. SOFTWARE. RMI warrants solely for the benefit of Veritel
that, in its unmodified state, the Software Deliverable
shall operate in conformity to the Specifications relating
to it and defined within Attachment(s). If the Software
Deliverable shall fail to conform to such Specifications,
RMI shall use commercially reasonable efforts to correct
such non-conformities. If RMI cannot make Software
Deliverable operate as warranted, then RMI shall refund to
Veritel all amounts paid for such Software Deliverable and
this shall be Veritel's sole and exclusive remedy. RMI does
not represent or warrant that: (i) the Software Deliverable
will meet Veritel's requirements; (ii) the Software
Deliverable will operate in the combinations which Veritel
may select for use; (iii) the operation of the Software
Deliverable will be error-free; or (iv) any errors in the
Software Deliverable will be corrected. Veritel may make
such warranties to its sub-licensees as it deems appropriate
but may not under any circumstances make any warranty on
behalf of RMI or pass RMI's warranty through to any
sub-licensee.
14.1.2. YEAR 2000. RMI represents and warrants that the Software
Deliverable will operate in conformity to the Specifications
relating to it before, on, or after, the date January 1,
2000, for purposes of Year 2000 (including Leap Year)
processing. RMI represents that it is not aware of any way
in which such matters are relevant to the operation of the
Software Deliverable. This representation and warranty does
not include the other software programs, including operating
systems, that may effect the ability of the Software
Deliverables to operate.
14.1.3. DEFECT WARRANTY. If RMI becomes aware of errors in the
Software Deliverables that prohibit their use, RMI will make
commercially reasonable efforts to correct such errors in a
timely manner. An error shall mean any error, problem, or
defect resulting from (1) an incorrect functioning of Code,
or (2) an incorrect or incomplete statement of diagram in
Documentation, if such an error, problem, or defect renders
the Software Deliverables inoperable, causes the Software
Deliverables to fail to meet the specifications thereof,
causes the Documentation to be inaccurate or incomplete in
any material respect, causes incorrect results, or causes
incorrect functions to occur when any such materials are
used.
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14.2. Representations and Warranties of Veritel.
14.2.1. LIMITATION ON WARRANTIES. THE LIMITED WARRANTIES OF RMI SET
FORTH ABOVE ARE MADE FOR THE BENEFIT OF VERITEL ONLY AND
SHALL NOT EXTEND TO ANY THIRD PARTIES. THE REMEDY DESCRIBED
IN SECTION 14.1.1 IS THE SOLE AND EXCLUSIVE REMEDY FOR
BREACH OF THE LIMITED WARRANTIES SET FORTH ABOVE. EXCEPT AS
PROVIDED IN SECTIONS 13 AND 14, RMI MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR
IMPLIED, FROM A COURSE OF PERFORMANCE OR DEALING, TRADE
USAGE, OR OF UNINTERRUPTED OPERATION WITHOUT ERROR,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. RMI
MAKES NO WARRANTIES WITH REGARD TO THE RESULTS OBTAINED FROM
THE OPERATION OR USE BY VERITEL OF THE SOFTWARE DELIVERABLE.
14.2.2. OTHER THAN PURSUANT TO SECTION 13, RMI SHALL NOT BE LIABLE
TO VERITEL, OR ANY THIRD PARTY, FOR ANY THIRD PARTY CLAIMS
BASED ON CONTRACT, TORT, OR OTHER GROUNDS (INCLUDING THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE) RELATED TO THIS AGREEMENT, THE PRODUCTS OR ANY
DEVICE, MATERIAL, OR THING TO WHICH THE PRODUCTS ARE
ATTACHED, OR OF WHICH ANY PRODUCT IS MADE A PART, OR WITHIN
WHICH ANY SUCH PRODUCT IS ENCLOSED, REGARDLESS OF WHETHER
RMI MAY BE WHOLLY, CONCURRENTLY, PARTLY, JOINTLY, OR SOLELY
NEGLIGENT OR OTHERWISE AT FAULT.
14.2.3. THE LIMITED WARRANTIES SET FORTH ABOVE SHALL NOT APPLY TO
ANY PRODUCTS THAT HAVE BEEN SUBJECTED TO IMPROPER USE OR
STORAGE, USE BEYOND RATED CONDITIONS, IMPROPER MAINTENANCE,
NEGLIGENCE, OR ACCIDENT. VERITEL SHALL PROVIDE RMI ACCESS TO
THE PRODUCTS AS TO WHICH VERITEL CLAIMS A PURPORTED DEFECT
OR NONCONFORMANCE IN THE SOFTWARE DELIVERABLE. UPON REQUEST
BY RMI, VERITEL SHALL, AT ITS OWN RISK AND EXPENSE, PROMPTLY
RETURN SUCH PRODUCTS IN QUESTION TO RMI.
14.2.4. THE FOREGOING WARRANTIES BY RMI ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE
DELIVERABLE OR PRODUCTS PROVIDED HEREUNDER. RMI SHALL HAVE
NO LIABILITY WHATSOEVER FOR ANY COVER OR SET-OFF NOR FOR ANY
INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR PUNITIVE
DAMAGES, INCLUDING LOST PROFITS, EVEN IF RMI HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS
PROVIDED IN SECTION 13.4 OF THIS AGREEMENT, REGARDLESS OF
WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT ------------
FAILS OF ITS ESSENTIAL PURPOSE, RMI'S LIABILITY TO VERITEL
FOR ANY REASON AND UPON ANY CAUSE OF ACTION, WHETHER
SOUNDING IN TORT, CONTRACT, OR ANY OTHER LEGAL THEORY,
EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID BY VERITEL TO
RMI UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING
TWELVE (12) MONTH PERIOD.
14.3. ALLOCATION OF RISK. VERITEL ACKNOWLEDGES AND AGREES THAT THE FEES
CHARGED BY RMI IN THIS AGREEMENT REFLECT AN ALLOCATION OF RISK
BETWEEN THE PARTIES, INCLUDING, BUT NOT LIMITED TO, THE LIMITATION
OF LIABILITY AND EXCLUSIVE REMEDIES DESCRIBED IN THIS AGREEMENT. A
MODIFICATION OF THE ALLOCATION OF RISKS SET FORTH IN THIS AGREEMENT
WOULD AFFECT THE FEES CHARGED BY RMI, AND IN CONSIDERATION OF SUCH
FEES, VERITEL AGREES TO SUCH ALLOCATION OF RISK.
15. SUPPORT AND MAINTENANCE
15.1. VERITEL SUPPORT. For a period of (1) year after the Effective Date,
RMI hereby agrees to provide training to Veritel's employees
regarding the Software Deliverables, so that Veritel's employees can
provide support to Distribution Partners and End Users. Such
training shall take place at Veritel's place of business. RMI's
telephone support will be available on standard business days,
holidays excepted, from 9:00 a.m. to 5:00 p.m. Eastern Time.
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15.2. END-USER AND DISTRIBUTION PARTNER SUPPORT. Veritel will provide
first level and second level support to its' End Users and
Distribution Partners. RMI will provide third level support to
Veritel.
15.2.1. First level support shall mean very basic assistance in the
use of Products.
15.2.2. Second level support shall include gathering and checking
information provided from first level support and responding
to unresolved issues for which answers may be available from
alternative resources. Second level support shall also
include testing, collection of error logs and files and use
of diagnostic tools.
15.2.3. Third level support is provided from RMI to Veritel in the
event Veritel is unable to resolve the problem.
15.3. MAINTENANCE, UPDATES AND UPGRADES. For a period of one (1) year
after the Effective Date, RMI will provide to Veritel Minor
Enhancements for the RMI Software. Major Enhancements may be
negotiated under a separate agreement. Veritel shall have sole
responsibility for distributing any such releases.
16. CONFIDENTIALITY
16.1. CONFIDENTIAL INFORMATION. The parties acknowledge and agree that it
may be necessary for each of them or their directors, officers,
partners, agents, or representatives to disclose or make available
to each other information and materials that are confidential or
proprietary or contain valuable trade secrets relating to their
respective businesses (collectively the "Confidential Information"),
and that some such information may already have been disclosed prior
to the date of this Agreement. Prior to disclosure to the other
party, the disclosing party shall use commercially reasonable
efforts to designate all Confidential Information by marking such
materials or information, if in tangible form, with a "Confidential"
or similar legend. In any event, RMI and Veritel agree that even if
not so marked, the Software Deliverable and Products, and all other
components of both that are not readily apparent to an end-user, are
Confidential Information, as are any documentation, descriptions,
and embodiments thereof.
16.2. NON-DISCLOSURE. During the term of this Agreement and any
Attachment(s) accepted hereunder, and for the longer of three (3)
years or the longest time permitted by relevant law following the
termination of this Agreement, each of the parties agrees: (i) to
use commercially reasonable efforts to protect the Confidential
Information of the other party from unauthorized use or disclosure
and to use at least the same degree of care with regard thereto as
it uses to protect its own Confidential Information of a like
nature; (ii) to use and reproduce the Confidential Information of
the other party only as permitted under this Agreement and only as
needed to perform its duties hereunder; (iii) except pursuant to
Veritel's license to grant sublicenses hereunder, not to disclose or
otherwise permit access to the Confidential Information of the other
party to any third party without the disclosing party's prior
written consent and then only to the extent reasonably required to
accomplish the intent of this Agreement; and (iv) to ensure that its
employees participating in the performance of this Agreement are
advised of the confidential nature of the Confidential Information
of the other party, that they are prohibited from using or copying
the Confidential Information of the other party for any purpose
other than performing their obligations under this Agreement, from
revealing the Confidential Information of the other party for any
other purpose whatsoever, and from taking any action prohibited to
either party under this SECTION 16.2.
16.3. COMPELLED DISCLOSURE. In the event that either party or any of its
directors, officers, partners, or employees is required by
deposition, interrogatory, request for documents, subpoena, civil
investigative demand, or similar process to disclose any of the
Confidential Information of the other party, such compelled party or
any such person may disclose only that portion of the Confidential
Information of the other party that such party or such person is
legally required to disclose. If legally permitted, a party shall
first provide notice to the other party of any such process
requiring such disclosure upon receipt thereof in order to provide
the other party with the opportunity to petition the court or
administrative body to prevent such disclosure.
16.4. EXCEPTIONS. Information will not be considered to be Confidential
Information if it: (i) is already, or otherwise becomes, publicly
known by third parties other than as a result of an act or omission
of the receiving party; (ii) is lawfully received, after disclosure
hereunder, from a third party having the right to disseminate the
information to the receiving party and without restriction on
disclosure; (iii) is furnished to others by the disclosing party
without restriction on disclosure; or (iv) can be shown by the
receiving party to have been independently developed by such party
without use of or reference to the Confidential Information of the
disclosing party. Furthermore, it is understood that each party
shall be free to use ideas, concepts, know-how and techniques
related to the scope of its business and practice, provided they
contain no specific or identifiable elements unique to the other
party hereto or its operations and they otherwise contain no
Confidential Information of the other party.
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16.5. RETURN OF CONFIDENTIAL INFORMATION. Except as otherwise expressly
provided herein, upon termination or completion of this Agreement,
the parties shall promptly return to each other all materials that
were delivered to each party by one another with respect to such
Agreement or Attachment(s), including, but not limited to, all
tangible forms of Confidential Information and any copies thereof.
Furthermore, upon the return thereof, each party shall cause one of
its officers or principals to certify to the other party in writing
that that party has complied with this SECTION 16.5.INJUNCTIVE
RELIEF. The parties agree that any breach by a party or any of its
directors, officers, partners, employees, agents or representatives
of any provisions of this SECTION 16.6 may cause immediate and
irreparable injury to the other party and that, in the event of such
breach, the injured party will be entitled to seek injunctive relief
as well as any and all other remedies available at law or in equity.
17. MARKETING SUPPORT
17.1. Press Releases. Neither Party may issue press releases pertaining to
this Agreement or Attachment(s) without the written permission of
the other Party.
17.2. When requested, and if available, RMI will provide, at Veritel's
expense, sales marketing support to Veritel for significant customer
opportunities
18. PAYMENT TERMS
18.1. CURRENCY. All payments due under this Agreement shall be made to RMI
in US Dollars.
18.2. PAYMENT TRANSMITTALS. All payments are to be made via Electronic
Funds Transfer to Registry Magic Incorporated at First Union
National Bank of Florida to Account Number 9981591341 with ABA
Routing Number ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
18.3. PAYMENT DUE DATES. Development payments for items specified within
the Work Statement are due as specified in the Work Statements.
18.4. LATE FEES. Any Development payment not made when due shall bear
interest at the lower of one and one-half percent (1 1/2%) per month
or the maximum rate allowed by law. In the event RMI is required to
institute an action to collect any such amount and shall prevail in
whole or in part, RMI shall be entitled to reimbursement by Veritel
of its reasonable expenses so incurred (including attorneys' fees).
19. TERM AND TERMINATION
19.1. TERM. The term of this Agreement shall commence on the Effective
Date set forth above and shall continue for a term of three years.
19.2. TERMINATION BY RMI. RMI may terminate this Agreement upon written
notice to Veritel if (a) Veritel breaches this Agreement and fails
to correct the breach within thirty (30) days following written
notice specifying the breach; (b) if Veritel makes an assignment for
the benefit of creditors, or files a voluntary petition of
bankruptcy, or seeks or consents to any reorganization or similar
relief, or is adjudicated, bankrupt or insolvent, or has commenced
against it by a third party any bankruptcy, insolvency,
reorganization or similar petition or proceeding. In the event of a
sale, transfer, or other disposition of the "control" of Veritel
(which for the purpose of this SECTION 19.2 shall mean effective
control of the management of Veritel) or of any substantial part of
Veritel's assets, interests, business or property, RMI must approve
the transfer the rights granted under this agreement to the third
party but may not reasonably withhold this transfer. Termination
shall not relieve Veritel of its obligation to pay all license fees
that have accrued under this Agreement.
19.3. TERMINATION BY VERITEL. Veritel may terminate this Agreement upon
written notice to RMI if (a) RMI breaches this Agreement and fails
to correct the breach within thirty (30) days following written
notice specifying the breach; (b) if RMI makes an assignment for the
benefit of creditors, or files a voluntary petition of bankruptcy,
or seeks or consents to any reorganization or similar relief, or is
adjudicated, bankrupt or insolvent, or has commenced against it by a
third party any bankruptcy, insolvency, reorganization or similar
petition or proceeding. In the event of a sale, transfer, or other
disposition of the "control" of RMI (which for the purpose of this
SECTION 19.3 shall mean effective control of the management of RMI)
or of any substantial part of RMI's assets, interests, business or
property, Veritel must approve the transfer the rights granted under
this agreement to the third party but may not reasonably withhold
this transfer. Termination shall not relieve RMI of its obligations
under this Agreement.
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19.4. EFFECT OF TERMINATION. Upon termination of this Agreement, all of
RMI's and Veritel's warranty, support and maintenance obligations
shall cease, including without limitation RMI's and Veritel's
obligation to provide maintenance releases, updates and defect
support. Termination of this Agreement or any Attachment(s) shall
not limit either party from pursuing any other remedies that may be
available to it, including injunctive relief, nor shall termination
relieve Veritel or RMI of its obligation to pay all license fees
that have accrued or that Veritel or RMI has agreed to pay under any
Attachment(s). The parties' obligations under SECTIONS 11, 13, 14,
AND 16 shall survive termination of this Agreement.
20. GENERAL
20.1. INDEPENDENT CONTRACTOR. RMI is an independent contractor under this
Agreement, and nothing herein shall be construed to create a
partnership, joint venture, or agency relationship between the two
parties hereto. Veritel shall have no authority to enter into
agreements of any kind on behalf of RMI and, except as set forth
herein, shall not have the power or authority to bind or obligate
RMI in any manner to any third party.
20.2. COMPLETE AGREEMENT. This Agreement, including any Attachment(s)s
hereunder, is the complete and exclusive statement of the agreement
of the parties with respect to the subject matter hereof and
supersedes and merges all prior proposals, understandings, and
agreements, whether oral or written, between the parties with
respect to the subject matter hereof. This Agreement may not be
modified except by a written instrument duly executed by the parties
hereto.
20.3. NO WAIVER. No failure to exercise, and no delay in exercising, on
the part of either party, any right, power or privilege hereunder
will operate as a waiver thereof, nor will any party's exercise of
any right, power or privilege hereunder preclude further exercise of
the same right or the exercise of any other right hereunder.
20.4. ENFORCEABILITY. If any part of this Agreement shall be adjudged by
any court of competent jurisdiction to be invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining provisions shall not be affected or impaired thereby and
shall be enforced to the maximum extent permitted by applicable law.
If any remedy set forth in this Agreement is determined to have
failed of its essential purpose, then all other provisions of this
Agreement, including the limitations of liability and exclusion of
damages, shall remain in full force and effect.
20.5. NO CONSTRUCTION AGAINST DRAFTER. If an ambiguity or question of
intent arises with respect to any provision of this Agreement, the
Agreement will be construed as if drafted jointly by the parties and
no presumption or burden of proof will arise favoring or disfavoring
either party by virtue of authorship of any of the provisions of
this Agreement.
20.6. FORCE MAJEURE. Either party shall be excused from performance and
shall not be liable for any delay in whole or in part, caused by the
occurrence of any contingency beyond the reasonable control either
of the excused party or its subcontractors or suppliers. These
contingencies include, but are not limited to, war, sabotage,
insurrection, riot or other act of civil disobedience, act of public
enemy, failure or delay in transportation, act of any government or
any agency or subdivision thereof affecting the terms hereof,
accident, fire, explosion, flood, severe weather or other act of
God, or shortage of labor or fuel or raw materials.
20.7. NOTICES. Any notice required or permitted hereunder to the parties
hereto will be deemed to have been duly given only if in writing to
the address of the receiving party as set forth on the initial page
hereof or such other address as may be specified by such party in a
notice delivered to the other party in accordance with this Section
and delivered by: (i) certified U.S. mail, return receipt requested,
postage prepaid; (ii) nationally recognized overnight courier,
delivery charges prepaid; or (iii) by hand delivery with signed
receipt. Any notice shall be deemed delivered: (a) on the fifth
(5th) business day following deposit of such notice with the U.S.
Postal Service if notice is given in accordance with (i), above; (b)
on the second (2nd) business day following deposit of such notice
with the courier if notice is given in accordance with (ii), above;
or (c) on the date of actual delivery if notice is given in
accordance with (iii), above.
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20.8. GOVERNING LAW AND JURISDICTION. This Agreement shall be deemed to
have been made in, and shall be construed pursuant to the laws of,
the State of Florida.
20.9. HEADINGS AND SUBSECTIONS. Section headings are provided for
convenience of reference and do not constitute part of this
Agreement. Any references to a particular section of this Agreement
shall be deemed to include reference to any and all subsections
thereof.
20.10. ASSIGNMENT. Neither party may assign or delegate any or all of its
rights (other than the right to receive payments) or its duties or
obligations hereunder without the consent of the other party, which
consent shall not be unreasonably withheld; provided, however, that
either party may assign this Agreement, without the need to obtain
consent of the other party, a successor in interest to substantially
all of the business of that party to which this Agreement relates.
An assignee of either party authorized hereunder shall be bound by
the terms of this Agreement and shall have all of the rights and
obligations of the assigning party set forth in this Agreement. If
any assignee shall fail to agree to be bound by all of the terms and
obligations of this Agreement, then such assignment shall be deemed
null and void and of no force or effect.
20.11. NO THIRD PARTY BENEFIT. The provisions of this Agreement are for
the sole benefit of the parties hereto. This Agreement confers no
rights, benefits, or claims upon any person or entity not a party
hereto
IN WITNESS WHEREOF, THE PARTIES HAVE EXECUTED THIS AGREEMENT AS OF THE EFFECTIVE
DATE.
REGISTRY MAGIC INCORPORATED
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: President and CEO
-----------------------------------
VERITEL CORPORATION OF AMERICA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Title: Vice President and CFO
--------------------------------------
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BUSINESS LEASE
THIS AGREEMENT, entered into this ______ day of June ____, 1998 between
Diversified Equity Management Corporation, hereinafter called the lessor, party
of the first part, and Registry Magic, Inc., a Florida corporation of the County
of Palm Beach and State of Florida hereinafter called the lessee or tenant,
party of the second part:
WITNESSETH, That the said lessor does this day lease unto said lessee,
and said lessee does hereby hire and take as tenant under said lessor
XXXXXXXXXXXXXXXXXXXXX
XXX Suite 1, ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ situate in Boca Raton,
Florida, to be used and occupied by the lessee as Office/Non-Retail facility and
for no other purposes or uses whatsoever, for the term of 3 years ** , subject
and conditioned on the provisions of clause ten of this lease beginning the 1st
day of **, 1998 and ending the last day of **, 2001 at and for the agreed total
rental of $ 90,000.00 Dollars, payable as follows:
Monthy payments of $ 2,500.00 shall be due on the 1st day of each month of the
Lease for a term of 3 years commencing on the 1st day of July, 1998 and ending
on June 30, 2001 except as set forth on Exhibit "B" attached hereto and
incorporated by reference herein. Lessee shall also pay to Lessor with each
month's rental payment all applicable sales tax.
Upon execution of this Lease, Lessee shall also pay to Lessor a first month's
rent of $2,500.00 and a last month's rent of $2,500.00.
all payments to be made to the lessor on the first day of each and every month
In advance without demand at the office of Lessor at _________________________
in the City of ______________________________ or at such other place and to such
other person, as the lessor may from time to time designate in writing.
The following express stipulations and conditions are made a
part of this lease and are hereby assented to by the lessee:
FIRST: The lessee shall not assign this lease, nor sub-let the
premises, or any part thereof nor use the same, or any part thereof, nor permit
the name, or any part thereof, to be used for any other purpose than as above
stipulated, nor make any alterations therein and all additions thereto, without
the written consent of the lessor, and all additions, fixtures or
improvements which may be made by leasee, except movable office furniture,
shall become the property of the lessor and remain upon, the premises as a part
thereof, and be surrendered with the premises at the termination of this lease.
SECOND: All personal property placed or moved in the premises
above described shall be at the risk of the lessee or owner thereof, and lessor
shall not be liable for any damage to said personal property, or to the lessee
arising from the bursting or leaking of water pipes, or from any act of
neglience of any co-tenant or occupants of the building or any other person
whatsoever.
THIRD: That the tenant ______ shall promptly execute and
comply with all statutes, ordinances, rules, orders, regulations and
requirements of the Federal, State and City Government and of any and all their
Departments and Bureaus applicable to said premises, for the correction,
prevention, and abatement of nuisances or other grievances in, upon, or
connected with said premises during said term: and shall also promptly comply
with and execute all rules, orders and regulations of the Southeastern
Underwriters Association for the prevention of fires, at ______ own cost and
expense.
FOURTH: In the event the premises shall be destroyed or so
damaged or injured by fire or other casualty during the life of this agreement,
whereby the same shall be rendered untenantable, then the lessor shall have the
right to render said premises tenantable by repairs within ninety days
therefrom. If said premises are not rendered tenantable within said time, it
shall be optional with either party hereto to cancel this lease, and in the
event of such cancellation the rent shall be paid only to the date of such fire
or casualty. The cancellation herein mentioned shall be evidenced in writing.
13
FIFTH: The prompt payment of the rent for said premises upon
the dates named, and the faithful observance of the rules and regulations
printed upon this lease, and which are hereby made as part of this covenant, and
of such other and further roles or regulations as may be hereafter made by the
lessor are the conditions upon which the lease is made and accepted and any
failure on the part of the lessee to comply with the terms of said lease, or any
rules and regulations now in existence, of which may be hereafter prescribed by
the lessor, shall at the option of the lessor, work a forfeiture of this
contract, and all of the rights of the lessee hereunder, and thereupon the
lessor, his agents or attorneys, shall have the right to enter premises, and
remove all persons therefrom forcibly or otherwise, and the lessee thereby
expressly waives any and all notice required by law to terminate tenancy, and
also waives any and all legal proceedings to recover possession of said
premises, and expressly agrees that in the event of a violation of any of the
terms of this lease, or of said rules and regulations, now in existence or which
hereafter be made, said lessor, his agent or attorneys, may immediately re-enter
said premises and dispossess lessee without legal notice or the institution of
any legal proceedings whatsoever.
SIXTH: If the lessee shall abandon or vacate said premises
before the end of the term of this lease, or shall suffer the rent to be in
arrears, the ▇▇▇▇▇▇ may, at his option, forthwith cancel this lease or he may
enter said premises as the agent of the lessee, by force or otherwise without
being liable in any way therefor, and relet the premises with or without any
furniture that may be therein, as the agent of the lessee, at such price and
upon such terms and for such duration of time as the lessor may determine and
receive the rent therefor, applying the same to the payment of the rent due by
these presents, and if the full rental herein provided shall not be realized by
lessor over and above the expenses to lessor in such re-letting, the said lessee
shall pay any deficiency, and if more than the full rental is realized lessor
will pay over to said lessee the excess of demand.
SEVENTH: Lessee agrees to pay the cost of collection and ten
per cent attorney's fee on any part of said rental that may be collected by suit
or by attorney, after the same is past due.
EIGHTH: The lessee agrees that he will pay all charges for
rent gas, electricity or other illumination, and for all water used on said
premises, and should said charges for rent, light or water herein provided for
at any time remain due and unpaid for the space of five days after the same
shall have become due, the lessor may at its option consider the said lessee
tenant at sufferance and immediately re-enter upon said premises and the entire
rent for the rental period then next ensuing shall at once be due and payable
and may forthwith be collected by distress or otherwise,
NINTH: The said lessee hereby pledges and assigns to the
lessor all the furniture, fixtures, goods and chattels of said lessee, which
shall or may be brought or put on said premises as security for the payment of
the rent herein reserved, and the lessee agrees that the said lien may be
enforced by, distress foreclosure or otherwise at the election of the said
lessor, and does hereby agree to pay attorney's fees of ten percent of the
amount so collected or found to be due, together with all costs and charges
therefore incurred or paid by the lessor.
TENTH: It is hereby agreed and understood between lessor and
lessee that in the event the lessor decides to remodel, alter or demolish all or
any part of the premises leased hereunder, or in the event of the sale or long
term lease of all or any part of this space; requiring this space, the lessee
hereby agrees to vacate same upon receipt of sixty (60) days' written notice and
the return of any advance rental paid on account of this lease.
It being further understood and agreed that the lessee will
not be required to vacate said promises during the winter season: namely,
November first to May first, by reason of the above paragraph.
ELEVENTH: The lessor, or any of his agents, shall have the
right to enter said premises during all reasonable hours to examine the same to
make such repairs, additions or alterations as may be deemed necessary for the
safety. comfort, or preservation thereof, or of said building, or to exhibit
said premises, and to put or keep upon the doors or windows thereof a notice
"FOR RENT" at any time within thirty (30) days before the expiration of this
lease. The right of entry shall likewise exist for the purpose of removing
placards, signs, fixtures alterations, or additions, which do not conform to
this agreement, or to the rules and regulations of the building.
TWELFTH: Lessee hereby accepts the premises in the condition
they are in at the beginning of this lease and agrees to maintain said premises
in the same condition, order and repair as they are at the commencement of said
term, excepting only reasonable wear and tear arising from the use thereof
under this agreement and to make good to said lessor immediately upon demand,
any damage to water apparatus, or electric lights or any fixture, appliances or
appurtenances of said premises, or of the building, caused by any act or
neglect of lessee, or of any person or persons in the employ or under the
control of the lessee.
THIRTEENTH: It is expressly agreed and understood by and
between the parties to this agreement, that the landlord shall not be liable for
any damage or injury by water, which may be sustained by the said tenant or
other person or for any other damage or injury resulting from the carelessness,
negligence, or improper conduct on the part of any other tenant or agents, or
employees, or by reason of the breakage, leakage or obstruction of the water,
sewer or coil pipes, or other leakage in or about the said building.
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FOURTEENTH: If the lessee shall become insolvent or if
bankruptcy proceedings shall be begun by or against the lessee, before the end
of said term the lessor is hereby irrevocably authorized at its option, to
forthwith cancel this lease, as for a default. Lessor may elect to accept rent
from such receiver trustee, or other judicial officer during the term of their
occupancy in their fiduciary capacity without effecting lessor's rights as
contained in this contract, but no receiver, trustee or other judicial officer
shall ever have any right, title or interest in or to the above described
property by virtue of this contract.
FIFTEENTH: This contract shall bind the lessor and its assigns
or successors, and the heirs, assigns, administrators, legal representatives,
executors or successors as the case may be, of the lessee.
SIXTEENTH: It is understood and agreed between the parties
hereto that time is of the essence of this contract and this applies to all
terms and conditions contained herein.
SEVENTEENTH: It is understood and agreed between the parties
hereto that written notice mailed or delivered to the premises leased hereunder
shall constitute sufficient notice to the lessee and written notice mailed or
delivered to the office of the lessor shall constitute sufficient notice to the
Lessor, to comply with the terms of this contract.
EIGHTEENTH: The rights of the lessor under the foregoing shall
be cumulative, and failure on the part of the lessor to exercise promptly any
rights given hereunder shall not operate to forfeit any of the said rights.
NINETIETH: It is further understood and agreed between the
parties hereto that any charge against the lessee by the lessor for service or
for work done on the premises, by order of the lessee or otherwise accruing
under this contract shall be considered as rent due and shall be included in
any lien for rent due and unpaid.
TWENTIETH: It is hereby understood and agreed that any signs
or advertising to be used, including awnings, in connection with the premises
leased hereunder shall be first submitted to the lessor for approval before
installation of same.
SEE EXHIBIT "A" ATTACHED HERETO FOR ADDITIONAL TERMS AND CONDITIONS
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EXHIBIT "B"
ADDENDUM TO Business Lease
THIS ADDENDUM ("Addendum") made between Diversified Equity Management
Corporation ("Lessor") and Registry Magic, Inc., a Florida corporation
("Lessee") to that Business Lease ("Agreement") dated July __, 1998 concerning
real property located at a portion of ▇▇▇▇▇ ▇, ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇ ▇▇▇▇▇,
▇▇.
WITNESSETH, that for and in consideration of Ten and No/100 Dollars and the
mutual covenants contained herein, the Lessor and Lessee agree as follows:
1. The following shall be added to paragraphs TENTH and TWELFTH:
"Notwithstanding the foregoing, the Lessee shall accept the
space identified on Exhibit "A" in "As Is" condition with no warranties or
representations from the Lessor. Lessor agrees to construct, at its own expense,
the improvements more particularly described on Exhibit "A" attached hereto
within 60 days of the effective date of this Lease.
2. Use of the Lobby area described on Exhibit "A" will be joint and several by
the parties. Landlord shall handle all cleaning and maintenance in the Lobby at
its own expense.
3. Notwithstanding any provisions in this Lease to the contrary:
A. The maintenance of the air conditioning system shall be
shared by the parties on a prorata basis computed on square footage of
occupancy. Lessee shall promptly pay when due all electric bills for Suite 1
[which shall include the space occupied by Lessor and Lessee comprising the
entire space of Suite 1].
B. With the exception of the Lobby and the air conditioning
system, the Lessee shall bear all costs of the maintenance, cleaning and repair
of all systems within the space which shall include but not be limited to
plumbing and lighting.
C. The monthly rent payment due from the Lessee shall include
water service, common area maintenance and building taxes.
D. Lessee shall provide a Certificate of Insurance to Lessor
naming Lessor as an additional insured/loss payee on a policy of
liability/hazard/personal property insurance acceptable to Lessor in amount of
coverage and carrier. Both parties shall insure the Lobby but Lessee shall have
no liability or be required to insure any art work placed in the Lobby by the
Lessor.
E. Lessee shall not be permitted any signage whatsoever
including but not limited to the Lobby, the exterior areas of its space or the
Lessor's space. The existing signage for ▇▇▇▇▇ Gallery shall remain at Lessor's
sole discretion. Notwithstanding the foregoing, Lessee shall be permitted to
place a sign, approved in form and design by Lessor, on the interior door to the
Lessee's space (in the Lobby) and Lessee shall be solely liable for any fines,
fees, penalties, suits, damages, costs of litigation, court costs and attorneys
fees and costs incurred as the result of the actions of any municipal or state
authority in conjunction with the existence of the sign or Lessee's occupancy
and of its space. Lessee shall also indemnify and hold Lessor harmless from any
losses, suits, fines, penalties, damages, court costs, costs of litigation and
attorneys fees and costs incurred as the result of the Lessee's sign and
occupancy of the Lessee of its space as noted on Exhibit "A" attached hereto.
4. Paragraphs TENTH and NINTH shall be deleted in their entireties.
5. If Lessee requests occupancy of its space prior to July 1, 1998, the Lease
shall be deemed commenced on such date of occupancy and Lessee shall pay a
prorated rental for the days of the month prior to July 1 in which it occupies
the space payable in advance to the Lessor. The term of the lease shall be
extended for the number of days in which the Lessee commenced occupancy prior to
July 1, 1998.
6. The Lessee acknowledges that this Lease is a sublease to that certain lease
to which Lessor is a tenant.
7. Any court costs and attorneys fees and costs incurred with respect to
litigation in conjunction with this Lease except for that specified in paragraph
SEVENTH shall be paid by the prevailing party.
16
8. The parties acknowledge that the Lessee herein (sublessee to Prime Lease) has
reviewed the Prime Lease ("Lease Agreement"), except for the payment terms
thereunder (see attached Prime Name Lease reviewed by Lessee herein), by and
between Boca Equities Company and Diversified Equity Management Corporation
dated September 28, 1992, as assigned, (the "Prime Lease") and further
acknowledge that this Lease is (a) subject to the terms and conditions of the
Prime Lease and (b) supersedes this Lease and remains in full force and effect.
Accordingly, this Lease shall create no additional rights unto the Lessee than
exist under the terms of the Prime Lease including the length of term available
or the termination thereof
Witness: XXXXX "Lessor"
----------------------------------- Diversified Equity Management Corporation
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- -----------------------------------------
By:
Dated:
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇ "Lessee"
---------------------------------- Registry Magic, Inc.
7/2 /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------- -----------------------------------------
By:
Dated: 7/2/98
-----------------------------------------
Re: Lease between Boca Equities Company, Ltd. (Landlord) and Diversified Equity
Management Corporation, Inc. (Tenant), dated September 18, 1992 (the "Prime
Lease").
Pursuant to the terms of the above referenced Prime Lease, the
undersigned Landlord consents to the sublease of approximately 1600 square feet
to Registry Magic, Inc. according to the attached sublease while reserving all
rights contained in the Prime Lease.
17
IN WITNESS WHEREOF, the parties hereto have hereunto executed this
instrument for the purpose herein expressed, the day and year above written.
Signed, sealed and delivered in the presence of:
Diversified Equity Management Corporation
Subject to Approval by "Prime (Seal)
----------------------------------- ----------------------------------------
Lease" Landlord. By: W. (Seal)
----------------------------------- ----------------------------------------
As to Lessor Lessor
Registry Magic, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
President & CEO
-----------------------------------
As to Lessee
State of Florida, )
County of ________________________ )
Before me, a Notary Public in and for said State and County, personally came
__________________________________________________________________to me well
known and known to be the person _________ named in the foregoing lease, and
____________________ acknowledged that ______________ executed the same for the
purpose therein expressed.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the _______________day of ________________, 19 __
---------------------------------------
My commission expires
-------------- ---------------------------------------
Notary Public, State of Florida at Large