1
EXHIBIT 10(i)
EXCLUSIVE SOFTWARE LICENSE AGREEMENT
This Agreement made the 15th day of March 1999.
BETWEEN:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
an individual
(The "Licensor")
AND:
KEYSTONE VENTURES, INC.
a Corporation incorporated in the
State of Nevada
(The "Licensee")
WHEREAS:
This Software License Agreement (the Agreement) is made and entered into this
15th day of March, 1999 (the Effective Date) by and between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(licensor) and Keystone Ventures, Inc., a Nevada corporation (Licensee).
1. RECITAL
Whereas Licensor is the owner of, or has acquired the rights to, the
Licensed Programs and Documentation to "firewall" systems security software (the
"Software or Programs or Products"); and
Whereas Licensor desires to grant to Licensee and Licensee desires to
obtain from Licensor a exclusive license to use the Licensed Programs and
Documentation solely in accordance with the terms and on the conditions set
forth in this Agreement;
This Agreement is entered in contemplation of the following facts,
circumstances and representations:
1.1 The parties desire to enter into an agreement whereby Licensor will
provide Programs and Documentation so that Licensee may to use, modify,
make derivations, market and sell the Licensed Programs and Licensed
Documentation during the License term.
1.2 It is the intention of the parties that ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") shall
be responsible for the program marketing and technical support for the
duration of the contract.
1.3 Licensee agrees to provide Licensor with certain funding for the License
and technical support and as more specifically set forth herein.
1.4 Licensee agrees to the terms and conditions as more specifically set
forth herein.
2
1.5 The parties desire that all derivations of Licensor's copyrights that
are developed by Licensee shall be the property of Licensor with
Licensee being granted a limited license for its use pursuant to the
terms of this Agreement.
1.6 The parties agree that new invention(s), copyright(s) and trade
secret(s) that are developed with from the Licensed Programs which are
not derivations of third party invention(s), copyright(s) or trade
secret(s) will be owned by Licensor with Licensee being granted a
limited license for its use pursuant to the terms of this Agreement with
Licensor to be the owner of the invention(s), copyright(s) and/or trade
secret(s).
NOW THEREFORE, in consideration of the premises and mutual promises, terms and
conditions and other good and valuable considerations, the parties do hereby
agree as follows:
2. DEFINITIONS
2.1 "Designated System" shall mean a computer system under the physical and
managerial control of the Licensee consisting of two or more processors
locally interconnected by inter- processor bus cabling.
2.2 "Documentation" shall mean all specifications, manuals, documents,
drawings, and other tangible materials pertaining to the Licensed
Programs.
2.3. "Modification" shall mean any changes, enhancements or modification to
the Licensed Programs (other than Error Corrections) made by Licensee
that add significant new functions or substantially improved performance
by changes in system design or coding and related Documentation.
2.4 "Error" shall mean any failure of the Licensed Programs to conform in
all material respects as represented, as the same may be amended or
supplemented from time to time.
2.5 "Error Correction" shall mean either a software modification or addition
that, when made or added to the Licensed Programs, or a procedure or
routine that, when observed in the regular operation of the Licensed
Programs, eliminates the practical adverse effect of an Error on the use
of the licensed Programs.
2.6. "Licensed Programs" shall mean the computer programs for the purpose of
firewall systems security software, which programs are to be supplied to
Licensee in object code form only. For purposes of the Agreement,
Licensed Programs shall also include any Enhancements or Error
Corrections to the computer programs that Licensor may from time to time
furnish to Licensee pursuant to this Agreement.
2.7 "Release" shall mean a new version of any of the Licensed Programs that
Licensor markets independently of the Licensed Programs and which
constitutes the next generation of the Licensed Programs.
2.8 "Confidential Information": shall mean that part of the Technical
Information, whether written or oral which is:
2.8.1 not publicly known, and
3
2.8.2 annotated as "confidential" or "proprietary." Any information
which is not annotated as "confidential" or "proprietary" shall
be deemed to be in the public domain. In addition, "Confidential
Information" shall include information disclosed by either party
to the other party in accordance with (Modifications and/or
Improvements of Products);
3. GRANT OF RIGHTS
3.1 Licensor hereby grants, and Licensee hereby accepts, subject to the
terms and conditions of this Agreement, an exclusive, license to use,
modify, market and sell the Licensed Programs and Licensed Documentation
during the License term (unless sooner terminated in accordance
herewith), and to copy the Licensed Programs and/or documentation solely
for the purposes expressly authorized under this paragraph and Section 4
of this Agreement. In addition, Licensor hereby grants to Licensee the
right to use the Documentation only in connection with the use of the
Licensed Programs as allowed hereunder. No right to use, copy, display,
or print the Licensed Programs or Documentation, in whole or in part, is
granted, except as expressly provided in this Agreement.
4. LICENSOR'S WARRANTIES AND REPRESENTATIONS; TITLE
4.1 Licensor warrants and represents that it is the owner or licensee of the
Licensed Programs and Documentation, that it has the right and authority
to convey and grant the licenses set forth herein, and that Licensee's
use of the Licensed Programs as contemplated in this Agreement will not
infringe any party's proprietary rights in the United States. Licensee
acknowledges that all copies of the Licensed Programs and Documentation
and proprietary rights in and appurtenant thereto, including but not
limited to copyright, patent, and trade secret rights, are and shall
remain the sole property of Licensor, subject to the limited rights of
use specifically granted Licensee hereunder.
5. TERMS AND CONDITIONS
5.1 Licensee will not copy all or any portion of the Licensed Programs other
than as expressly allowed herein.
5.2 Licensee is authorized to use, copy, display, or print the Licensed
Documentation, in whole or in part, as is reasonably needed to
accomplish the stated purpose of this Agreement, to use, modify, market
and sell the Licensed Programs and Licensed Documentation during the
License term.
5.3 Licensee is authorized to use, copy, display, or print the Licensed
Programs, in whole or in part, as is reasonably needed to accomplish the
stated purpose of this Agreement, to use, modify, market and sell the
Licensed Programs and Licensed Documentation during the License term.
5.4 Any copy made by Licensee shall be made only for the uses intended
pursuant to this Agreement, notwithstanding and provisions of Section
117 of the Copyright Act.
5.5 Licensee will not transfer or license the use of all or any portion of
the Licensed Programs
4
to any third party or entity.
5.6 Licensee agrees to respect and not to remove, obliterate, or cancel from
view any copyright, trademark, or confidentiality notice, ▇▇▇▇, or
legend appearing on any of the Licensed Programs or output generated by
the Licensed Programs.
5.7 Licensee agrees not to modify, disassemble, or de-compile the Licensed
Programs, or any portion thereof, or attempt to subvert the process by
which the Licensed Programs are made operative only on the Designated
Systems, if any.
5.8 Licensee hereby acknowledges and agrees that the Licensed Programs and
Documentation constitute and contain valuable proprietary products and
trade secrets of Licensor, embodying substantial creative efforts and
confidential information, ideas, and expressions. Accordingly, Licensee
agrees to treat (and take precautions to ensure that its employees
treat) the Licensed Programs as confidential in accordance with the
confidentiality requirements and conditions set forth in Section 10
below.
5.9 Licensor shall require invention/copyright assignment agreements, in
favor of Licensor, be executed by all Licensee personnel who work on the
Licensed Programs
5.10 Licensee shall provide Licensor with satisfactory confidentially
agreements executed by all Licensee personnel assigned to work with the
Licensed programs, or those to whom the program will disclosed.
5.11 Licensee shall maintain accurate and complete records of the work
accomplished under the Agreement. Such records shall include, but not be
limited to: notebooks of activities of individual research personnel,
computer programs and files, internal memos and correspondence, record
books, accounts receivable and accounts payable. Such records, or copies
thereof, shall be available to Licensor in full without any limitations,
editing, or other restrictions or qualifications, upon reasonable
written demand.
6. TERM
6.1 The term of the license granted by Licensor is for a period of ten (10)
years with automatic renewal each year thereafter, subject to written
notification, sixty (60) days in advance to the renewal, by both parties
of the undersigned, and commencing on the Effective Date of this
Agreement (the initial License Term), unless sooner terminated in
accordance herewith. The initial License Term and all Renewal Terms are
collectively referred to herein as the License Term.
6.2 Termination for Cause. This Agreement may be terminated by a party of
the undersigned, by serving written notice of termination to the other
party, which shall become immediately effective upon the documented
receipt of such notice of termination, after the occurrence of any of
the following events, unless a mutual remedy is reached, by both parties
of the undersigned in writing, to obviate the termination, within ninety
(90) days from the date of receipt of the notice by a served party:
6.2.1 A material breach or default as to any obligation, specified
hereunder, by the Licensee or the Licensor, and the failure of
the notified party to promptly pursue a reasonable remedy to
cure such material breach or default; or
5
6.2.2 Termination on Acquisition. In the event of the direct or
indirect taking over or assumption of control of Licensee or
acquisition of all or substantially all of Licensee's assets by
any third party, Licensor shall have the right to immediately
terminate this Agreement at any time thereafter on giving
written notice thereof to Licensee or its successor in interest.
6.2.3 The filing of a petition in bankruptcy, insolvency or
reorganization by the Licensee or the Licensor, or the Licensee
or Licensor becoming the subject to a composition for creditors,
whether by law or agreement, or the Licensee or the Licensor
going into receivership or otherwise becoming insolvent; or
6.2.4 In the event of liquidation, caused by insolvency, the Licensor
and the Licensee hereunder agree to give the first right of
refusal to acquire the liquidation properties of the other,
subject to the rulings of the court on this matter.
6.3 After Termination or Expiry. The parties hereto agree to the following
conditions, once this Agreement is terminated or expires:
6.3.1 Terminate Usage of Products and Properties by Licensee. Licensee
shall cease any use or practice of the Licensed Products and
other products involving the Properties; and upon termination or
expiration of this Agreement, all sub-licenses granted by
Licensee during the term of this Agreement shall terminate.
Licensee shall, at its own expense, return to Licensor all
Confidential Information as soon as practicable after the date
of such termination, including original documents, drawings,
computer diskettes, models, samples, notes, reports, notebooks,
letters, manuals, prints, memoranda and any copies which have
been received by Licensee. All such Confidential Information
shall remain the exclusive property of Licensor during the term
of this Agreement and for five (5) years thereafter.
6.3.2 Payment Obligations for Unpaid Consideration to Licensor. Upon
termination of this Agreement, nothing shall be construed to
release Licensee from its obligations to pay Licensor any and
all royalties or other accrued but unpaid considerations due
Licensor, incurred prior to the date of such termination or
expiration.
7. FEES AND CHARGES
7.1 License Fee. In consideration of the licensed rights granted pursuant to
Section 2 above, Licensee shall pay with respect to the initial License
Term the amount of five thousand shares of common stock (5,000) fully
paid and non assessable shares of the Licensees' Common stock with
restrictions on sale.
8. LIMITED WARRANTY
8.1 Licensor's Warranty Obligations. Licensor warrants, for the sole benefit
of Licensee, that, for a period of sixty (60) days after Acceptance, the
Licensed Programs shall conform in all material respects to the
acceptance Criteria and that during such period Licensor, at its own
expense, shall, on receipt of notice from Licensee, exercise
commercially reasonable efforts to implement appropriate Error
Corrections to the Licensed Programs. Notwithstanding the foregoing,
Licensor shall be relieved from any such obligation if Licensee fails to
give Licensor prompt written notice of any Error claimed hereunder on
6
Licensee's first observation of such Error and such delay causes further
degradation to the functions of the Licensed Programs. Warranty service
performed in accordance with this Section 8 shall be performed during
normal weekday business hours, excluding Licensor holidays. With respect
to a reported Error that results or will result in significant
interruption of Licensee's productivity or down time (Business-Impacting
Failures), Licensor shall begin Error Correction procedures within
twenty-four (24) hours of such report. With respect to reported Errors
that do not constitute Business-Impacting Failures, Licensor shall begin
Error Correction procedures no later than seventy-two (72) hours after
such report. Licensor's sole and exclusive obligation under the
foregoing warranty shall be to exercise commercially reasonable efforts
to implement appropriate Error Corrections in response to Licensee's
notification of Errors.
8.2 Warranty Limitation. Notwithstanding the warranty provisions set forth
in Section 8.1 above, all of Licensor's obligations with respect to such
warranties shall be contingent on Licensee's use of the Licensed
Programs in accordance with Licensor's instructions as provided by
Licensor in the Documentation or otherwise, and as may be amended,
supplemented, or modified by Licensor from time to time. Licensor shall
have no warranty obligations with respect to any portion of the Licensed
Programs which has been:
8.2.1 Operated by Licensee in a manner inconsistent with requirements
set forth in the Documentation or under the provisions of this
Agreement or that has been modified by any party other than
Licensor;
8.2.2 Damaged in any manner and by any cause other than the act or
omission of Licensor;
8.2.3 Operated or maintained in environmental conditions outside the
parameters designated by Licensor in the Documentation or
elsewhere;
8.2.4 Subjected to extreme power surge or electromagnetic field; or
8.2.5 Moved from the Designated Site without the prior written consent
of Licensor.
8.3 Disclaimer of Warranties
LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE LICENSED
PROGRAMS WILL BE CORRECTED. THE WARRANTIES STATED IN SECTION 8 ARE THE
SOLE AND EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER
WARRANTIES RESPECTING THE LICENSED PROGRAMS OR SERVICES PROVIDED
HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY
WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF
LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF
LICENSOR AS SET FORTH HEREIN.
8.4 Limitation of Liability and Remedy
LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSE FEES WHICH LICENSOR IS
CHARGING HEREUNDER DO NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY
LICENSOR OF THE RISK OF LICENSEE'S CONSEQUENTIAL OR INCIDENTAL DAMAGES
WHICH MAY ARISE IN CONNECTION WITH LICENSEE'S USE OF THE LICENSED
PROGRAMS. ACCORDINGLY, LICENSEE AGREES THAT
7
LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT,
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING
OUT OF THE LICENSING OR USE OF THE LICENSED PROGRAMS; PROVIDED THAT
LICENSOR SHALL BE RESPONSIBLE FOR SUCH COSTS AND EXPENSES ARISING IN
CONNECTION WITH ANY INFRINGEMENT OR ALLEGED INFRINGEMENT OF THIRD PARTY
PROPRIETARY RIGHTS.
8.5 Except to the extent caused by Licensor's gross negligence or
intentional misconduct, (a) Licensor's liability to Licensee under any
provision of this Agreement except Section 9 (Indemnification), or any
transaction contemplated by this Agreement, shall be limited to one
hundred percent (100%) of the amount having then actually been paid by
Licensee to Licensor under Section 7 (Fees), and (b) Licensor's
indemnity liability (but not its obligation to defend) under section 9
shall be limited to two hundred percent (200%) of said amounts paid
under Section 7. Except where the limitation does not apply as described
above, (a) Licensor's limitation of liability is cumulative with all
Licensor's applicable expenditures being aggregated to determine
satisfaction of the limit, and (b) Licensee releases Licensor from all
obligations, liability, claims, or demands relating to the Licensed
Programs and Documentation and this Agreement in excess of the
limitation provided for in this Section 8. The parties acknowledge that
the limitations set forth in this Section 8 are integral to the amount
of fees levied in connection with the license of the Licensed Programs
and Documentation and the services rendered hereunder and that, were
Licensor to assume any further liability other than as set forth herein,
such fees would of necessity be set substantially higher. For purposes
of this Section 8, "Licensor's willful breach of this Agreement" means
the failure or refusal of Licensor to perform its obligation(s) under
this Agreement, notwithstanding the ability to do so.
9. INDEMNIFICATION
9.1 Licensor agrees to indemnify, hold harmless, and defend Licensee from
and against any and all damages, costs, and expenses, including
reasonable attorneys' fees, incurred in connection with a claim which,
if true, would constitute a breach of Licensor's warranty of title set
forth under Section 4 hereof (hereinafter Infringement Claims), provided
Licensor is notified promptly in writing of an Infringement Claim and
has sole control over its defense or settlement, and Licensee provides
reasonable assistance (at Licensor's expense and reasonable request) in
the defense of the same.
9.2 Following notice of an Infringement Claim, Licensor may at its expense,
without obligation to do so, procure for Licensee the right to continue
to use the allegedly infringing Documentation and/or Licensed Programs,
or any portion thereof (hereinafter the Product) or, without obligation
to do so, may replace or modify the Product, or any portion thereof, to
make it not infringing. If Licensor elects to replace or modify the
Product, or any portion thereof, such replacement shall meet
substantially the specifications as provided or referenced in the
acceptance Criteria, or the functional specifications for any subsequent
release of the product which Licensee has obtained pursuant hereto.
9.3 Licensor shall have no liability for any Infringement Claim based on
Licensee's:
9.3.1 use of the Product in a manner exceeding the scope of rights
granted to Licensee under this Agreement;
9.3.2 use of the Product in any manner inconsistent with the terms and
conditions of this
8
Agreement;
9.3.3 use of the Product after Licensor's written reasonable notice
that Licensee should cease use of the Product due to an
Infringement claim;
9.3.4 combination of the Product with a non-Licensor program or data
if such Infringement Claim would have been avoided had such
combination not occurred;
9.3.5 use of the Product outside the geographical boundaries of the
United States (including Puerto Rico); or
9.3.6 use of other than the latest version of the Product, if such
infringement could have been avoided by use of the latest
version and such latest version has been made reasonably
available to Licensee.
Licensee hereby releases and discharges Licensor from any and all
Infringement Claims arising under this Section 9.3, and Licensee agrees
to indemnify and defend Licensor from and against all damages, costs,
and expenses, including reasonable attorneys' fees, provided that such
indemnity obligation shall not supersede, replace, limit, or relieve any
other obligations Licensor may have with respect to said Infringement
Claim.
10. CONFIDENTIALITY
10.1 From time to time, Licensor or Licensee may find it necessary to provide
to the other party certain confidential information that the disclosing
party considers to be proprietary. Such information shall be identified
in writing as confidential by the disclosing party before disclosure to
the recipient (Confidential Information). For a period of five (5) years
from the Effective Date, each party agrees to keep confidential all
Confidential Information disclosed to it by the other party in
accordance herewith, and to protect the confidentiality thereof in the
same manner it protects the confidentiality of similar information and
data of its own (at all times exercising at least a reasonable degree of
care in the protection of Confidential Information); provided, however,
that neither party shall have any such obligation with respect to use or
disclosure to others not parties to this Agreement of such Confidential
Information as can be established to:
10.1.1 have been known publicly;
10.1.2 have been known generally in the industry before communication
by the disclosing party to the recipient;
10.1.3 have been developed independently by the recipient;
10.1.4 have become publicly, without fault on the part of the
recipient, subsequent to disclosure by the disclosing party;
10.1.5 have been known otherwise by the recipient before communication
by the disclosing party; or
10.1.6 have been received by the recipient at any time from a source
(other than the disclosing party) lawfully having possession of
such information.
9
10.2 Notwithstanding the above, nothing herein shall prevent a recipient from
disclosing all or part of the Confidential Information that it is
legally compelled to disclose (by oral deposition, interrogatories,
request for information or documents, subpoena, civil investigative
demand, or any other process); provided, however, that before any such
disclosure the recipient shall notify the disclosing party in writing of
any such order or request to disclose and cooperate with the disclosing
party (at the disclosing party's cost) with respect to any procedure
sought to be pursued by the disclosing party in protecting against such
disclosure.
11. SOURCE CODE ESCROW
11.1 To secure the performance of Licensor's various obligations hereunder
and under the Maintenance Agreement, concurrent with the execution of
this Agreement, Licensor and Licensee shall execute and deliver a Source
Code Escrow Agreement in substantially the form attached hereto as
Exhibit A.
12. MISCELLANEOUS
12.1 Governing Laws. It is the intention of the parties hereto that the
internal laws of the State of Nevada (irrespective of its choice-of-law
principles) shall govern the validity of this Agreement, the
construction of its terms, and the interpretation and enforcement of the
rights and duties of the parties hereto. The parties agree that the
United Nations Convention on Contracts for the International Sale of
Goods shall not govern this Agreement, the rights and obligations of the
parties hereunder, nor any agreement that may be executed to implement
this Agreement.
12.2 Consent Required. Licensee agrees that it will not, without the prior
written consent of Licensor, export directly or indirectly, the Product
or any portion thereof to anyone outside the United States or outside
the national jurisdiction in which the Designated Site is located.
12.3 Binding on Successors and Assigns. Subject to, and unless otherwise
provided in this Agreement, each and all of the covenants, terms,
provisions, and agreements contained in this Agreement shall be binding
on, and inure to the benefit of, the permitted successors, executors,
heirs, representatives, administrators, and assigns of the parties
hereto; provided, however, that this Agreement shall not be assignable
by either party without the prior written consent of the other party.
Notwithstanding the foregoing, this Agreement may be assigned without
the written consent of the non-assigning party to subsidiaries (provided
such subsidiaries are at least fifty percent (50%) owned by the
assigning party) and parent corporations of the assigning party.
12.4 Severability. If any provision of this Agreement, or the application
thereof, shall for any reason and to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances shall be interpreted so as
best to reasonably effect the intent of the parties hereto.
12.5 Entire Agreement. This Agreement, and the documents referred to in this
Agreement, along with their exhibits, constitute the entire
understanding and agreement of the parties with respect to their subject
matter and supersede all prior and contemporaneous agreements or
understandings.
10
12.6 Amendment and Changes. No amendment, modification, supplement, or other
purported alteration of this Agreement shall be binding on the parties
unless it is in writing and is signed on behalf of the parties by their
own authorized representatives.
12.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original as against any party
whose signature appears thereon and all of which together shall
constitute one and the same instrument.
12.8 No Waiver. The failure of any party to enforce any of the provisions of
this Agreement shall not be construed to be a waiver of the right of
such party thereafter to enforce such provisions.
12.9 Notices. Whenever any party desires or is required to give any notice,
demand, or request to this Agreement, each such communication shall be
in writing and shall be effective only if it is delivered by overnight
messenger services, express or electronic means (with confirmed
receipt), addressed as follows:
Licensor: ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Licensee: Keystone Ventures, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Such communications shall be effective when they are received by the
addressee. Any party may change its address for such communications by
giving an appropriate notice to the other party in conformity with this
Section.
12.10 No Joint Venture. Nothing contained in this Agreement shall be deemed or
construed as creating a joint venture or partnership between the
parties. Except as expressly set forth, no party by virtue of this
Agreement is authorized as an agent, employee, or legal representative
of any other party, and the relationship of the parties is, and at all
times will continue to be, that of independent contractors.
12.11 Further Assurances. Each party agrees to cooperate fully with the other
party and to execute such further instruments, documents, and
agreements, and to give such further written assurances as may be
reasonably requested by the other party, to better evidence and reflect
the transactions described in and contemplated by this Agreement, and to
carry into effect the intents and purposes of this Agreement.
12.12 Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or its breach, will be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association (AAA), as modified below:
12.12.1 Arbitration will be initiated by filing a demand at the San
Diego, California, Office of the AAA.
12.12.2 Disputes will be heard and determined by a panel of three
arbitrators. One
11
arbitrator will be appointed by each party to serve on the
panel. One neutral arbitrator will be appointed by the AAA and
shall serve as chairperson of the three-arbitrator panel. The
chairperson shall be an attorney with experience in handling
disputes in software licensing matters, and the other
arbitrators shall have a background or training in the computer
industry or computer law.
12.12.3 Any communication between a party and any arbitrator will be
directed to the AAA for transmittal to the arbitrator. The
parties expressly agree that the arbitrators will be empowered,
at a party's request, to (a) issue an interim order requiring
the other party to cease using the Licensed Programs or
Documentation pending the outcome of the arbitration, or (b)
grant injunctive relief.
12.12.4 Any party to an arbitration may petition the San Diego County
Superior Court, California, to confirm, correct, or vacate the
award on the grounds stated in the federal Arbitration Act.
12.12.5 Nothing in this Section will prevent any party from seeking
injunctive relief against the other party from any judicial or
administrative authority pending the resolution of a controversy
or claim by arbitration.
12.12.6 The prevailing party shall be entitled to be awarded, as an
element of the costs of arbitration and not as damages,
reasonable attorneys' fees to be fixed by the arbitrator
(including, without limitation, costs, expenses, and fees).
12.12.7 The parties shall have the right to take discovery of the other
party by any or all methods provided in the Federal Rules of
Civil Procedure. The arbitrators may on request exclude any
evidence not made available to the other party pursuant to a
proper discovery request from being used in the arbitration
proceeding.
IN WITNESS WHEREOF, the Licensor and the Licensee have executed this Agreement
on the day and the year first above-written.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Dated 3/15/99
-------------------------------------------- ------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an Individual
BY: /s/ ▇▇▇ ▇▇▇▇▇ Dated 3/15/99
-------------------------------------------- ------------
Keystone Ventures, Inc.
▇▇▇ ▇▇▇▇▇, Secretary & Director