Cyber Defense Systems Inc. Contracts
Sample Business Contracts
Software Development Agreement - 3DCityguide.com Inc. and Butterfly Software
Services Forms
SOFTWARE DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (hereinafter called "Agreement") made this 15th day
of September, 1999 by and between 3DCityguide.com, Inc., a Washington
corporation (hereinafter called "3DCityguide", which term shall include
3DCityguide's subsidiaries and affiliates) and Butterfly Software, a British
Columbia numbered company ("Butterfly").
WITNESSETH:
WHEREAS, Butterfly has the development capacity to build custom visually
interactive software products distributed in the CD ROM format;
WHEREAS, 3DCityguide desires to produce a limited number of custom visually
interactive CD ROM products for various metropolitan destinations throughout the
world;
WHEREAS, Butterfly desires to assist in the production of the CD ROM product by
building custom visually interactive software products pursuant to the
3DCityguide specifications;
WHEREAS, Butterfly has developed and possesses certain computer technology with
reference to software development and visual animations (which together with all
future developments thereof is collectively called "Butterfly Software
Technology"),
WHEREAS, Butterfly has the technology, capability and expertise to develop,
create, design, manufacture, produce and provide certain visually interactive
software technology; and
WHEREAS, subject to the conditions and terms contained herein, Butterfly is
willing and desirous to grant to 3DCityguide, and 3DCityguide desires to obtain
from Butterfly an exclusive, assignable, transferable, license for the
distribution, production, promotion, marketing and sale rights to the Butterfly
Software Technology for 3DCityguide as incorporated into any Development
Project; and
WHEREAS, Butterfly and 3DCityguide have negotiated and agreed upon the following
conditions and terms for a business relationship for the development,
production, distribution, marketing, license and sale of the CD ROM product
produced by any Development project incorporating Butterfly Software Technology
.
NOW, THEREFORE, for and in the consideration of Ten Dollars ($10.00) in hand
paid each respective party to the other and other good/valuable considerations
including, but not limited to, the covenants, conditions and terms hereof, the
sufficiency and receipt of said good/valuable considerations being herewith
acknowledged by the respective parties, Butterfly and 3DCityguide stipulate and
agree as follows:
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1. Recitals. The recitals set forth above are accurate, correct and true and
are incorporated herein by this reference
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describing specifically the understandings and intentions of the respective
parties hereto.
2. Definitions. When used in this Agreement, the following terms shall have
the meanings set forth next to the same as
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follows:
(a) The term "Future Products" means the Butterfly Software Technology
components, which are developed during the Term of this agreement in the field
of visually interactive technology by Butterfly for sale and licensing.
(c) The term "3DCityguide Builds" means a version of the Butterfly Software that
has been customized by Butterfly for the sole and exclusive distribution, sale
and/or use by 3DCityguide in its promotional/marketing opportunities,
presentations, programs and/or projects in the visually interactive market and
is encompassed in the specifications of a specific Development Project.
(d) The term "3DCityguide Customers" means 3DCityguide's advertisers, suppliers,
customers, sponsors and/or contacts.
(e) The term "3DCityguide Site" means 3DCityguide's Internet site on the World
Wide Web known as www.3DCityguide.com, www.chatvegas.com and any other domain
names owned by 3DCityguide or any affiliate or subsidiary of the same
(f) The term "Development Project" means a software product built by Butterfly
for 3DCityguide pursuant to this Agreement which incorporates Butterfly Software
Technology and which includes the development of any 3DCityguide Build. (g) The
term "CD ROM" means a compact disk or any other type of medium for the delivery
of software
(h) The term "Master" means a Private Build CD ROM "Master Disc" created by
Butterfly and suitable for use in the manufacturing, production and replication
of Butterfly Software Technology as incorporated in a Development Project or any
other 3DCityguide Build on CD ROM through subsequent replications thereof.
(i) The term "Replicator" means a manufacturer and/or packager of CD ROMs
containing Butterfly Software Technology that is ready for distribution to the
public for lease or sale through 3DCityguide
(j) The term "Start Date" means September 15, 1999.
(k) The term "Supplemental Product" means any enhancement, upgrade, update or
add-on to any 3DCityguide Build or Development Project.
(l) The term "Territory" means North America, the United States, Canada and
Mexico.
3. Butterfly's Right to Terminate.
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(a) Butterfly may terminate this Agreement, in addition to any other remedies
available to it, (i) if
3DCityguide has failed to perform or meet any material obligation, condition or
term contained herein and failed to remedy the default within thirty (30) days
after the receipt of written notice from Butterfly to that effect, or (ii) if
3DCityguide has failed to make any payment when payable and due under this
Agreement to Butterfly within fifteen (15) days after the receipt of written
notice from Butterfly to that effect.
(b) Notwithstanding the foregoing, this Agreement shall be automatically
terminated if 3DCityguide becomes bankrupt, involuntary, voluntary or
adjudicated, or 3DCityguide shall cease to function as a going concern by
suspending or discontinuing its business or ceases to distribute, market,
license and/or sell Butterfly Software Technology for any reason except for
periodic shutdowns in the ordinary course of business and interruptions caused
by strike, labor dispute or any other events over which it has no control.
(c) Butterfly's failure to resort to any remedy for breach hereunder shall not
be deemed to be a waiver for any subsequent breach of this Agreement.
4. 3DCityguide's Right to Terminate.
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(a) 3DCityguide may terminate this Agreement, in addition to any other remedies
available to it if Butterfly has failed to perform or meet any material
obligation, condition or term contained herein and failed to remedy the default
within thirty (30) days after the receipt of written notice from 3DCityguide to
that effect.
(b) Notwithstanding the foregoing, this Agreement shall be automatically
terminated if Butterfly becomes bankrupt, involuntary, voluntary or adjudicated,
or at 3DCityguide's discretion may terminate if Butterfly shall cease to
function as a going concern by suspending or discontinuing its business, ceases
supply, development or support of the Butterfly Software Technology except for
the decision to discontinue specific projects and periodic shutdowns in the
ordinary course of business and interruptions caused by strike, labor dispute or
any other events over which it has no control.
(c) 3DCityguide's failure to resort to any remedy for breach hereunder shall not
be deemed to be a waiver for any subsequent breach of this Agreement.
5. Grant of License Rights. Subject to the conditions and terms contained
herein, during the Term of this Agreement, Butterfly grants to 3DCityguide a
non-exclusive, transferable, assignable license, (with the right to sublicense),
to manufacture, distribute, produce, advertise, market, promote and sell the
Butterfly Software Technology in the Territory.
6. Butterfly Software Technology. The Butterfly Software Technology is a suite
of visually interactive animation
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technologies and associated graphical and informational user interfaces and
related code, which may be improved and updated from time to time with
technological and graphic advancements that incorporate as a part thereof
certain respective features available to the user of the Butterfly Software
Technology from time to time.
7. Butterfly License Terms. Butterfly shall deliver and provide to 3DCityguide
the Butterfly Software Technology pursuant to the attached delivery schedule,
Exhibit A. Notwithstanding anything herein to the contrary, all proprietary
right, title and interest in and unto the foregoing Butterfly Software
Technology, including the extension of those rights in the respective
3DCityguide Builds, shall remain the exclusive and sole proprietary property of
Butterfly subject only to the rights to same granted to 3DCityguide herein.
Consistent with the foregoing, Butterfly shall not make any sales or
distribution to any party of any Butterfly Software Technology in or outside of
the Territory other than 3DCityguide without first obtaining the 3DCityguide's
consent, which 3DCityguide may grant in it's sole and absolute discretion.
8. Butterfly Compensation and Term of Agreement. In consideration of the
Butterfly Software Technology, license rights
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granted herein by Butterfly to 3DCityguide, 3DCityguide shall pay to Butterfly
the following sums as described hereafter:
(a) Cash. 3DCityguide shall pay to Butterfly monetary sums in accordance with
Exhibit B attached hereto at an amount
therein indicated .
9. 3DCityguide Builds and other Development Projects. Pursuant to the
3DCityguide Build Schedule and Specifications attached hereto as Exhibit C,
Butterfly agrees to complete each 3DCityguide Build pursuant to the same and any
additional Development Projects which may be agreed to from time to time by both
parties.
10. Additional Butterfly Software Technology. Butterfly may provide to
3DCityguide from time to time, at Butterfly's absolute and sole discretion,
certain additional Butterfly Software Technology products not required to be
licensed to 3DCityguide under this Agreement. Such additional software products
shall be compensated as agreed to by the parties and paid upon delivery.
11. Goodwill of Trademark.
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(a) Butterfly acknowledges the value of the goodwill associated with the
Trademark and that the Trademark is distinctive and has acquired secondary
meaning. Butterfly agrees, during the Term, and thereafter, never to challenge
the rights of 3DCityguide or others in the Trademark.
(b) Butterfly shall promptly comply on a prospective basis with all instructions
and specifications from time to time communicated by Butterfly in connection
with the use and display of the Trademark, not inconsistent with this Agreement.
12. Trademark Protection. Butterfly acknowledges that the trademarks, trade
names and design marks ("Trademark") used by 3DCityguide and listed on Exhibit
"D" attached hereto and incorporated herein by this reference are the
proprietary and sole property of 3DCityguide or otherwise licensed to
3DCityguide for its use. Butterfly shall not use the Trademark(s), except in the
normal course of advertising and marketing the Butterfly Software Technologies
and shall appropriately designate the rights of the parties therein on such
advertising and marketing materials. Upon termination of this Agreement,
Butterfly shall immediately cease the use of any of 3DCityguide's proprietary
trademarks, trade names, design marks or rights.
(a) Butterfly agrees that it shall not, at any time:
(i) apply for any registration of any trademark or other designation, which
would adversely affect
3DCityguide's rights in the Trademark;
(ii) file any document with any governmental authority or take any action which
would adversely affect 3DCityguide's rights in the Trademark;
(iii) use or authorize the use of any trademark, trade name or other designation
identical with or
confusingly similar to the Trademark;
(iv) use or display the Trademark in a manner which might be confusing or
deceptive or might injure the good will and reputation associated with the
Trademark; or
(v) otherwise commit any act, which would create a potential liability on the
part of 3DCityguide or would adversely affect the goodwill and reputation of the
Trademark.
(b) 3DCityguide shall have the right, but not the obligation, to prosecute,
defend and/or settle at its own cost and expense and in its sole discretion, all
actions, proceedings and claims involving the Trademark, and to take any other
action that it deems proper or necessary for the protection and preservation of
its rights in the Trademark. In its sole option, 3DCityguide may take any action
described above in its own name, and/or in the name of Butterfly, and Butterfly
will cooperate fully therewith. All expenses of any action taken by 3DCityguide
to protect its interests in the Trademark shall be borne by 3DCityguide, and all
relief granted in connection therewith shall be solely for the account of
3DCityguide, except as described herein where Butterfly may participate in such
action. In the event Butterfly determines, in its absolute and sole discretion,
that it desires to participate with 3DCityguide in any action, proceeding and/or
claim or to initiate it's own action to protect its interests in the 3DCityguide
Builds which utilize the Trademark, then Butterfly shall proportionately bear
its portion of the expenses related to same with 3DCityguide, and shall
proportionately benefit in the relief granted in connection therewith as it
relates to Butterfly's rights. Butterfly shall notify 3DCityguide promptly of
any adverse, pending or threatened action in respect of the Trademark, and of
any use by third parties that would or might tend to be adverse to the rights of
3DCityguide, if said action against the Trademark or adverse use of the
Trademark becomes known to Butterfly.
13. Representations and Warranties.
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(a) Butterfly represents and warrants to 3DCityguide:
(i) that it is a British Columbia corporation, duly organized, validly existing
and in good standing under the laws of said State;
(ii) that it has the full right, power and authority to enter into and perform
the obligations
contemplated in this Agreement;
(iii) that this Agreement constitutes a legal, valid and binding obligation of
Butterfly, enforceable in accordance with its conditions and terms; and
(iv) that neither Butterfly nor any of its shareholders, directors or officers
is subject to, or a party to, any agreement, obligation, claim, action, order or
judgment, in effect, pending or threatened, which would adversely affect or
otherwise interfere with Butterfly's performance under this Agreement. (v) that
the Butterfly Software Technology will function as specified in accordance with
the specifications on Exhibits attached hereto.
(b) 3DCityguide represents and warrants to Butterfly:
(i) that it is a Washington corporation, duly organized, validly existing and
in good standing under
the laws of said State;
(ii) that it has the full right, power and authority to enter into and perform
the obligations
contemplated in this Agreement;
(iii) that this Agreement constitutes a legal, valid and binding obligation of
3DCityguide, enforceable in accordance with its conditions and terms;
(iv) that neither 3DCityguide nor any of its shareholders, directors or officers
is subject to, or a party to, any agreement, obligation, claim, action, order or
judgment, in effect, pending or threatened, which would adversely affect or
otherwise interfere with 3DCityguide's performance under this Agreement; and
14. Indemnification.
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(a) 3DCityguide hereby indemnifies Butterfly and holds Butterfly harmless and
defends Butterfly from and against any and all claims, suits, losses,
liabilities, causes of action, damages and costs (including reasonable
attorneys' fees), or the settlement or avoidance thereof, arising out of any
breach of 3DCityguide's representations and warranties or breach of this
Agreement. For purposes of this subparagraph, "3DCityguide" shall include
3DCityguide's officers, directors, employees, agents, subsidiaries, parents and
affiliates and partners.
(b) Butterfly hereby indemnifies 3DCityguide and holds 3DCityguide harmless and
defends 3DCityguide from and against any and all claims, suits, losses,
liabilities, causes of action, damages and costs (including reasonable
attorneys' fees), or the settlement or avoidance thereof, arising out of any
breach of Butterfly's representations and warranties or breach of this
Agreement. For purposes of this subparagraph, "Butterfly" shall include
Butterfly's officers, directors, employees, agents, subsidiaries, parents and
affiliates.
(c) The provisions of this Section shall survive the termination or expiration
of this Agreement
15. Non-Compete. Butterfly shall not develop, release, manufacture, distribute,
license, sell, rent or lease to third parties or end users a directly or
indirectly competing product to any 3DCityguide Build or Development Project
during the Term of this Agreement (hereinafter called the "Non-Compete Period")
without the written permission of 3DCityguide. For the purposes of this Section,
"indirectly competing product" shall mean any software product which provides
visual animations of any city, state or other geographical area or any software
product whatsoever built for a competitor of 3DCityguide, as determined by the
exercise of 3DCityguide's reasonable, good-faith judgment.
16. Butterfly Software Technology Ownership.
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(a) Code Ownership. 3DCityguide has developed and owns, or has the licensed
rights to use, and has copyright and trademark rights thereto where applicable,
all of the proprietary software in object code form and all modifications or
additions to such code (hereinafter collectively called "Proprietary Code") as
is incorporated at any time in the Butterfly Software Technology as part of a
3DCityguide Build or development project. The Proprietary Code may be expanded
upon during the Term of this Agreement and shall remain under the exclusive
ownership and control of 3DCityguide. Butterfly acknowledges that it has no
right, title or interest in or unto the Proprietary Code. By execution hereof,
Butterfly acknowledges and agrees that all property rights to the Proprietary
Code shall remain the exclusive property of 3DCityguide, and to the extent
possible under applicable law, Butterfly hereby assigns to 3DCityguide all of
its right, title and interest, if any, in and unto the Proprietary Code (to
secure 3DCityguide's ownership of the Proprietary Code which is integrally
incorporated therein) and further Butterfly agrees to execute and deliver such
instruments and take such other action as may be required and requested by
3DCityguide to carry out the assignment contemplated herein.
17. Disclaimer. THE WARRANTIES IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
LOSS OF PROFITS OR OTHER INCIVISUALLY INTERACTIVE OR CONSEQUENTIAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY PERFORMANCE OR
NONPERFORMANCE HEREUNDER, EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
18. Master Delivery and Acceptance.
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(a) Butterfly will develop and provide to 3DCityguide the Butterfly Software
Technology (i.e., 3DCityguide Build One - 3DCityguide Build Ten) in the form of
a Master developed in accordance with the specifications for same (hereinafter
called "Specifications"), which Specifications shall be mutually acceptable to
Butterfly and 3DCityguide but developed in 3DCityguide's absolute and sole
discretion relative to the appropriate software considerations for same. In
accordance with the Specifications, Butterfly shall provide and deliver to
3DCityguide the Master for 3DCityguide Build One pursuant to the attached
exhibits. Subsequent Masters for the additional Butterfly Software Technology
for 3DCityguide (i.e., 3DCityguide Build Two - 3DCityguide Build Ten) shall be
provided and delivered to 3DCityguide by Butterfly throughout the Term . In the
event that 3DCityguide requests that Butterfly create further Butterfly Software
Technology thereafter for 3DCityguide's use, 3DCityguide will gather all of the
necessary Feature information and material and forward an order for same to
Butterfly to determine whether Butterfly desires to develop and create same
including the consideration that Butterfly will receive for such additional
development. In the event that Butterfly determines that it desires to develop
and create the additional Butterfly Software Technology for 3DCityguide, then
Butterfly will develop same in accordance with the Specifications relating to
the new development software and will provide to 3DCityguide a timetable for the
delivery of same. Notwithstanding anything herein to the contrary, Butterfly
shall have a period of fifteen (15) days within which to determine whether
Butterfly will undertake and accept an assignment from 3DCityguide to develop
and create additional Butterfly Software Technology for 3DCityguide including
the consideration and determinations relative to same. Butterfly shall agree to
use its best efforts to modify the 3DCityguide Builds during the first year of
the Term to the satisfaction of 3DCityguide and shall use its best efforts to
provide 3DCityguide with at least as many additional 3DCityguide Builds each
year and thereafter throughout the course of the Term as are required by
exhibits attached hereto together with any reasonable modifications to the same
by 3DCityguide which to not materially change the nature of the 3DCityguide
Build, in the sole reasonable discretion of Butterfly. Butterfly also agrees to
upgrade the 3DCityguide Builds whenever the Butterfly Software Technology is
upgraded at no additional cost to 3DCityguide, should 3DCityguide so desire.
(b) Butterfly agrees to provide 3DCityguide Build testing subject to further
independent examination and testing by third parties of 3DCityguide's choosing.
Butterfly shall advise 3DCityguide in writing that it has completed its testing
program and shall submit the respective 3DCityguide Build to 3DCityguide for
independent testing if 3DCityguide so desires. After the delivery of each
respective 3DCityguide Build (hereinafter called "Delivered Product"),
3DCityguide shall evaluate the Delivered Product and shall submit a written
acceptance or rejection of same within ten (10) days of its submission for
consideration. In the event that 3DCityguide does not issue a written acceptance
or rejection within the ten (10) day period described herein, then 3DCityguide's
silence shall be consider acceptance for purposes of accepting the Delivered
Product under this Agreement.
(c) In addition to the 3DCityguide Build "Master" which Butterfly will deliver
to 3DCityguide, Butterfly will retain an additional "Master" of each respective
3DCityguide Build at its offices.
24. Export Control. This Agreement is made subject to any applicable regulation,
restrictions or orders on the export from the United States of America of
control of commodities, technical data or of information concerning such
technical data, which might be imposed from time to time by the United States of
America. 3DCityguide will not export, indirectly or directly, any of the
3DCityguide Builds or other Butterfly Software Technology to any country for
which the United States of America or any agency thereof requires governmental
approval at the time of export without first obtaining an export license or
requires the existence of an export license for same, and further subject to the
requirement that 3DCityguide must be able to export the 3DCityguide Builds to
said country in accordance with this Agreement's conditions and terms.
25. Shipment of Masters. Butterfly will ship the respective 3DCityguide Build
"Masters" to 3DCityguide, or if
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3DCityguide desires to its Replicator designated through written instruction to
Butterfly, and will utilize the shipment carrier and method instructed by
3DCityguide in its order to arrange for the shipment of the respective Master
and will insure same during such shipment. Such shipment from Butterfly to
3DCityguide shall be from Butterfly's place of business to 3DCityguide or
3DCityguide's Replicator and all shipping, freight, tax and insurance charges
therefore shall be 3DCityguide's responsibility. Risk of loss of the respective
Master shall be 3DCityguide's risk after Butterfly has delivered the respective
Master to the appropriate carrier for shipment.
26. Support. Butterfly and 3DCityguide agree that support for the 3DCityguide
Builds shall utilize the Internet, E-mail and telephone resources to provide
reasonable support consistent with and the terms and conditions as described in
Exhibit E attached hereto and incorporated herein by this reference and shall
include at least two visits to the 3DCityguide offices of 3DCityguide by
Butterfly personnel per Term year of this Agreement, the reasonable business
travel expenses of which shall be borne by 3DCityguide.
27. Relationship. Nothing herein contained shall be construed to place
3DCityguide and Butterfly in a relationship as partners, joint ventures,
employer and employee, or principal and agent, respectively, and neither
3DCityguide nor Butterfly shall have the power to bind or obligate the other
party in any manner whatsoever.
28. Assignment. Neither Butterfly nor 3DCityguide shall sublicense, transfer or
assign any rights herein granted, except (upon prior written notice to
3DCityguide) to Butterfly's subsidiaries, affiliates or parents, or to
3DCityguide's subsidiaries, affiliates or parents, without obtaining the other
respective party's prior written approval, which approval shall not unreasonably
be withheld or delayed, and, if granted, shall be conditioned upon the
sublicense's, transferee's, or assignee's agreement in writing to abide by the
same obligations, conditions and terms applicable to the respective parties
hereto.
29. Notices. All notices, approvals and other communications provided for in
this Agreement shall be made in writing and delivered personally or by certified
or registered mail, return receipt requested, postage prepaid, to the parties at
their addresses set forth below, or to such address as either party may specify
by like written notice to the other and shall be deemed given when received.
Failure to accept certified or registered mail shall be deemed a receipt thereof
within ten (10) days after the first notice of delivery of the certified or
registered mail. Any entity may change its address as designated herein by
giving notice thereof.
If to 3DCityguide: 4620 S. Arville Street Suite A, Las Vegas, NV, USA 89103
If to Butterfly: #302 - 343 Railway Street, Vancouver, BC, Canada V6A 1A4
or such other address either party from time to time specify in writing to the
other.
30. Confidentiality. Butterfly and 3DCityguide agree that the conditions and
terms of this Agreement shall be deemed confidential information between the
respective parties. Each respective party expressly undertakes to retain in
confidence and to require its directors, officers, employees, representatives
and agents to retain in confidence all information between the respective
parties that the disclosing party has identified as being confidential and/or
proprietary or which, by the nature of the circumstances surrounding the
disclosure, should in good faith be treated as confidential and/or proprietary.
Without limiting the foregoing, all of the conditions and terms of this
Agreement shall be considered confidential and shall not be disclosed (except to
either respective party's prospective acquisition partners, accountants,
attorneys, advisors and consultants, including financial institutions and
sources and potential financing entities, together with such foregoing entities'
directors, officers, employees, representatives and agents, on a need to know
basis and provided that such parties are bound by the conditions and terms of
this non-disclosure section) without the prior written consent of the other
respective party, except that the respective parties may disclose confidential
information as required by governmental entity or court of law with the power to
compel such disclosure but only after giving the other respective party an
opportunity and due notice to defend against the disclosure requirement. The
respective parties stipulate and agree that upon expiration or termination of
this Agreement, each respective party will return to the other respective party
all specifications, memorandums, blue prints, drawings, designs, devices,
documents, notes and any other material containing or disclosing any
confidential and/or proprietary information of the other respective party. The
respective parties may mutually agree in writing that rather than returning all
said documentation, the possessing party of such documentation shall destroy the
confidential and/or proprietary information in its possession in accordance with
this section. Neither respective party will retain any such documentation
relating to confidential and/or proprietary information without the other
respective party's prior written approval thereof.
31. Mediation/Arbitration. Any controversy, claim, misunderstanding, cause of
action, matter in question, breach or disagreement arising out of, or relating
to, this Agreement (hereinafter called "Dispute") shall be decided by mediation
or arbitration as follows:
(a) Mediation: The party seeking resolution of a Dispute (hereinafter called
"Complaining Party") shall provide the other party (hereinafter called
"Responding Party") with written notice describing the Dispute and requesting
mediation (hereinafter called "Mediation Notice") thereof including the naming
therein of its proposed mediator. Within ten (10) calendar days of the delivery
date of Mediation Notice, the respective parties shall appoint a mutually
acceptable mediator (hereinafter called "Mediator") to resolve the Dispute.
Within a reasonable period of time thereafter, not to exceed ten (10) calendar
days after appointing the Mediator, the respective parties in controversy
("Dispute") shall submit their respective cases to the Mediator who shall hear
the evidence and render a final decision thereon within three (3) calendar days
after the close of the evidence. The respective parties agree that the mediation
of the Dispute shall take place in Bellingham, Washington or such other location
mutually acceptable to the respective parties, and shall be governed by
Washington law. Any decision or award rendered by the Mediator, and acceptable
to the respective parties, shall be final and judgment thereon may be entered in
accordance with applicable law in any Court having jurisdiction thereof. If the
Mediator shall demand compensation for its services prior to mediation, then
Complaining Party and Responding Party shall pay said Mediator expenses on a
fifty-fifty (50-50) basis in advance of the mediation. The substantially
prevailing party in mediation shall be entitled to recover all expenses and
costs of mediation including its reasonable attorney's fees and any advanced
Mediator's expenses from the non-prevailing party.
(b) Arbitration: In the event the respective parties do not select a mutually
acceptable mediator within ten (10) calendar days of Mediation Notice, the
Complaining Party shall notify the Responding Party in writing of its demand to
arbitrate, and shall designate in such notice (hereinafter called "Arbitration
Notice") the name of its arbitrator. Within ten (10) calendar days of the
delivery date of Arbitration Notice, Responding Party shall select its
arbitrator. Within twenty (20) calendar days of the delivery date of Arbitration
Notice, the two (2) arbitrators so selected shall appoint a third arbitrator
(third arbitrator hereinafter called "The Arbitrator"). Within thirty (30)
calendar days of the delivery date of Arbitration Notice the respective parties
in controversy ("Dispute") shall submit their respective cases to the panel of
Arbitrators who shall hear the evidence and render a final decision thereon
within three (3) calendar days after the close of the evidence. The respective
parties agree that the arbitration shall take place in Seattle, Washington or
such other location mutually acceptable to the respective parties, and shall be
governed by Washington law in accordance with the American Arbitration
Association regulations and rules except as otherwise supplemented, modified or
amended herein. The Arbitrator shall be empowered to take such procedural and
discovery actions as the Arbitrator deems appropriate, to the same extent as a
court acting pursuant to the Federal Rules of Civil Procedure. Any decision or
award rendered by the Arbitrator shall be final and judgment thereon may be
entered in accordance with applicable law in any court having jurisdiction
thereof. If the Arbitrator shall demand compensation for their services prior to
arbitration, then Complaining Party and Responding Party shall pay said
Arbitrators' expenses on a fifty-fifty (50-50) basis in advance of the
arbitration. The substantially prevailing party in arbitration shall be entitled
to recover all expenses and costs of arbitration including its reasonable
attorney's fees and any advanced Arbitrators' expenses from the non-prevailing
party.
(c) Equitable Remedy. Notwithstanding this Agreement's conditions and terms
relating to mediation and/or arbitration of Disputes, the respective parties
acknowledge and agree that breach of certain of the covenants, conditions and
terms of this Agreement, such as a breach creating irreparable harm, would have
an inadequate remedy at law, and may not be adequately remedied by damages, and
further consent and agree that temporary and/or permanent injunctive and other
relief may be sought and pursued to prevent irreparable harm to either
respective party for breach of this Agreement's covenants, conditions and terms
without waiving the right to seek actual damages thereafter.
32. Miscellaneous.
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(a) Legal Representation. Each party to this Agreement has been represented by
counsel in the negotiation of this Agreement and accordingly, no provision of
this Agreement shall be construed against a party due to the fact that it or its
counsel drafted, dictated or modified this Agreement or any condition or term
thereof.
(b) Further Instruments. Each party hereto shall, from time to time, execute
and deliver such further
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instruments as any other party or parties or its counsel may reasonably request
to effectuate the intent of this Agreement.
(c) Successors and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
if and when applicable.
(d) Survival of Representations and Warranties. The respective representations,
warranties and agreements of the respective parties to this Agreement and
contained in this Agreement shall survive and remain in effect.
(e) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Washington. Wherever possible, each
provision, condition and term of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law; but if any provision,
condition or term of this Agreement, or any documentation executed and delivered
hereto, shall be prohibited by or invalid under such applicable law, then such
provision, condition or term shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision,
condition or term or the remaining provisions, conditions and terms of this
Agreement or any documentation executed and delivered pursuant hereto.
(f) Section Headings. The section headings inserted in this Agreement are for
convenience only and are not intended to, and shall not be construed to, limit,
enlarge or affect the scope or intent of this Agreement, nor the meaning of any
provision, condition or term hereof.
(g) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same document.
(h) Entire Agreement. This Agreement contains the entire Agreement between the
respective parties hereto and supersedes any and all prior agreements and
understandings between the parties hereto relating to the subject matter hereof.
No statement or representation of the respective parties hereto, their agents or
employees, made outside of this Agreement, and not contained herein, shall form
any part hereof or bind any party hereto. This Agreement shall not be
supplemented, amended or modified except by written instrument signed by the
respective parties hereto.
(i) Attorneys' Fees and Costs: In any Dispute arising out of or pertaining to
this Agreement, the prevailing party, or substantially prevailing party in
multiple claims as the case may be, shall be entitled to an award of its
attorneys' fees and costs after a finally sustained determination or decision,
whether incurred before, after or during mediation, arbitration, trial, or upon
any appellate level.
(j) Time: Time is of the essence of this Agreement. When any time period
specified herein falls upon a Saturday,
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Sunday or legal holiday, the time period shall be extended to 5:00 P.M.
on the next ensuing business day.
(k). Relationship. Nothing herein contained shall be construed to place
Butterfly and 3DCityguide in a relationship as co-Butterfly, partners, joint
ventures, employer and employee, or principal and agent, respectively, and
neither 3DCityguide nor the Butterfly shall have the power to bind or obligate
the other party in any manner whatsoever.
(l). Notices. All notices, approvals and other communications provided for in
this Agreement shall be made in writing and delivered personally or by certified
or registered mail, return receipt requested, postage prepaid, to the parties at
such address as either party may specify by like written notice to the other and
shall be deemed given when received. Failure to accept certified or registered
mail shall be deemed a receipt thereof within ten (10) days after the first
notice of delivery of the certified or registered mail. Any entity may change
its address as designated herein by giving notice thereof as provided herein.
(m). Representations. Butterfly represent, covenant and warrant that they are
the sole owners and copyright holders of their respective works, that they have
the proper authority to enter into this Agreement and to grant the License and
agree to indemnify 3DCityguide for any breach of this representation.
IN WITNESS WHEREOF, the undersigned respective parties have caused this
Agreement to be executed in their names the day and year first above written.
On behalf of 3DCityguide.com, Inc.
3DCityguide.com, Inc.
a Washington corporation
By: /s/ Matthew Brooks
Title: Secretary and Director
On behalf of Butterfly Software, Inc.
Butterfly Software, Inc.
a British Columbia corporation
By: /s/ Anis Jessa
Title: President