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§ 7.37 Form: Software License Agreement Involving Third-Party
This License Agreement (the "Agreement") is made as of [DATE]
(the "Effective Date") by and between PDQ, Inc., a Delaware
corporation, located at 1 Corporate Tower, Santa Clara, California,
("PDQ") and XYZ Corp., a New York corporation, located at 55
Broad Street, New York, New York, ("XYZ"), with respect to the
following facts:
WITNESSETH:
WHEREAS, PDQ is in the business of, among other things,
developing, marketing and supporting certain computer software
products, including the Licensed Products (as hereinafter defined), and
PDQ is the owner of certain valuable intellectual property rights in
such Licensed Products.
WHEREAS, MNOP, a California corporation ("MNOP"), currently
is in the business of, among other things, the publishing of various
electronic media, sales, marketing and promotional businesses. WHEREAS, PDQ and MNOP have entered into An Agreement (the
"Formation Agreement"), dated as of _____________ to form XYZ
Corp. and have XYZ create an online service delivered through the
Internet and/or corporate intranets (the "XYZ Services," as further
defined below). The XYZ Services will provide news of interest to
this audience and one or more of the following: product data,
reference material, application information, tutorials, seminars, and
product demonstrations. WHEREAS, in furtherance of, and in implementation of, the
parties' agreements and business activities as specified in the
Formation Agreement, the parties are entering into this Agreement
with respect to specified development activities, licenses to
intellectual property rights, and related matters.
NOW, THEREFORE, in consideration of the mutual
representations, warranties and covenants, and other terms and
conditions as set forth herein, PDQ and XYZ agree as follows:
1. Definitions
1.1 Database Content
"Database Content" means the subset of PDQ's component
reference database of integrated circuits as described in Schedule 1
("Selector Description") and supplier lists as described in Schedule 2
("Yellow Pages Description").
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1.2 Documentation
"Documentation" means the manuals and any other printed material
normally provided by PDQ with the Licensed Software.
1.3 End User
"End User" means any authorized business entity and company
which through its authorized employees, agents and contractors visits
or accesses the XYZ Site directly or through the corporate Intranet
Sites of XYZ's sublicensees.
1.4 Intranet Site
"Intranet Site" means a site on the World Wide Web that is only
made accessible to a limited number of authorized users over
corporate intranets.
1.5 License
"License" means the licenses granted pursuant to this Agreement.
1.6 License Period
"License Period" means the period for which the License is granted
to XYZ for Licensed Products as set forth in Section 11 ("Term and
Termination").
1.7 Licensed Products
"Licensed Products" means the Licensed Software and Database
Content.
1.8 Licensed Software
"Licensed Software" means the limited functionality, unmodified,
object-code subset version of the proprietary search engine software
owned or licensed by PDQ, including the specific features, as set forth
in the Selector Description and is limited to use for searching for those
items within the Database Content.
1.9 Marks
"Marks" means the "PDQ Development, Inc." name, trademark and
logo.
1.10 MNOP Content
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"MNOP Content" means content, other than Database Content,
which XYZ licenses from third parties, including, without limitation,
MNOP and makes available on the XYZ Site.
1.11 MNOP Software
"MNOP Software" means software which XYZ licenses from third
parties and uses in connection with the XYZ Site or the provision of
the XYZ Services.
1.12 PDQ Online
"PDQ Online" means PDQ's online service consisting of PDQ's
Reference Databases, Software, and other services.
1.13 Selector Service
"Selector Service" means the dedicated area of the XYZ Services
hosted on the XYZ Site which provides access to the Licensed
Products, subject to the restrictions set forth in Section 2, and for
which access End Users shall be required to pay subscription fees. The
Selector Service shall not be delivered through corporate Intranet
Sites.
1.14 Server
"Server" means the computer platform on which XYZ is licensed to
use the Licensed Software, as limited by the provisions of Section 2.1.
("License Grant").
1.15 Updates
"Updates" means revisions to the Database Content that are made
generally available to PDQ customers.
1.16 XYZ Content
"XYZ Content" means the content other than the Database Content
displayed on the XYZ Site, including, without limitation the MNOP
Content.
1.17 XYZ Services
"XYZ Services" means the on-line service delivered through the
Internet and/or corporate Intranet Sites, providing news of interest to
End Users and one or more of the following: including advertising
targeted to End Users, product data, promotional materials, literature,
reference material, application information, tutorials, seminars, and
product or software demonstrations. The Services may include
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electronic commerce and development tools. The XYZ Services shall
not include the distribution of the Licensed Products, other than the
provision of Yellow Pages solely as part of the Services.1.18 XYZ Site
"XYZ Site" means the site on the World Wide Web created by
XYZ for purposes of providing the XYZ Services to End Users over
the internet.
2. License and Protection2.1 License Grant
Subject to the terms and conditions of this Agreement, PDQ grants
XYZ a non-transferable right, for North America, to use the Licensed
Products, only in the English language, on the XYZ Site and to
publicly display and publicly perform the Licensed Products, in object
code form solely through the provision of the Selector Service as part
of the XYZ Services, and to use the Documentation internally for the
License Period, for use by XYZ on the specified XYZ Site. XYZ will
not include any local content or local language for countries outside
North America and will not actively promote or distribute products or
services to End Users outside North America, but XYZ may accept
End Users from outside North America. Such license shall be
exclusive solely as against any provider of services competitive to the
XYZ Services (other than PDQ Online) and nonexclusive for all other
purposes.
2.2 Updates to Database Content
During the term of this Agreement, PDQ shall provide up to
_______________ (__) Updates per year for the Database Content
within a reasonable time after any such Update is made generally
available. All Updates delivered to XYZ by PDQ shall be subject to
the terms and conditions of this Agreement. Nothing in this
Agreement shall be construed as requiring PDQ to continue to supply
the Licensed Products to XYZ if PDQ should decide not to continue to
make any portion of the Licensed Product generally available.
2.3 Protection of Software
XYZ agrees to take all reasonable steps, as measured by standard
industry practice, to protect the Licensed Products from unauthorized
copying or use. The source code and/or source data in Licensed
Software represent and embody trade secrets of PDQ or its licensors.
The source code, source data and such trade secrets are not licensed to
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XYZ and any modification, addition, or deletion thereto is strictly
prohibited.2.4 User Restrictions
XYZ shall require conformance by all End Users of the XYZ
Services (including such End Users' employees) to certain terms and
conditions of use, prominently displayed by XYZ on the XYZ Site.
Such terms of use shall include but not be limited to the following
notice:
All software and content (the "PDQ Software and Content")
provided by PDQ Development, Inc. and its affiliates ("PDQ") is
owned by or licensed to PDQ. PDQ and its licensors retain all
proprietary rights to the PDQ Software and Content. Except for
making one hard copy print of limited portions of the data
contained in the PDQ Software and Content on an ad hoc basis, the
PDQ Software and Content may not be reproduced, transmitted, or
distributed without PDQ's permission. Any and all use of the
Licensed Products shall be subject to these end user notifications,
legends and notices, which shall be specified by PDQ, in its sole
discretion.
2.5 Ownership
Ownership and title to the Licensed Products (including any
corrections, updates, adaptations, enhancements or copies) shall be
held by PDQ and its licensors. Copies are provided to XYZ only to
allow it to exercise the rights under the License.
2.6 Restrictions
XYZ shall make the Licensed Products available to End Users
exclusively as part of the Selector Services. XYZ shall conform to or
exceed industry standards with regard to assuring that End Users (and
their authorized employees) of the XYZ Services, whether or not
directly accessing the XYZ Services on the XYZ Site, do not have
direct access to the source code or the complete Database Content at
any time. PDQ reserves all rights not expressly granted to XYZ. XYZ
shall not reverse engineer, decompile, modify in any way, or create
derivative works from the Licensed Products, or any portion thereof
and shall use its best efforts to prevent End Users from doing so.
2.7 Protection of the Database Content
XYZ agrees to take all reasonable steps to protect the Database
Content and the Licensed Software from unauthorized access, copying
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or use. XYZ agrees to assume sole responsibility for the security of
Licensed Products on the XYZ Site.3. Delivery and Acceptance
PDQ will deliver the Licensed Products to XYZ and XYZ will have
ten (10) days to test the Licensed Products for substantial
conformance to the corresponding Documentation. Within such
period, XYZ may provide written notice to PDQ setting forth, in
reasonable detail, any such non-conformities, in which case PDQ will
attempt to correct the non-conformity and redeliver the Licensed
Products for further acceptance testing pursuant to this section. XYZ's
failure to provide written notice of nonconformities within ten (10)
days following PDQ's delivery shall be deemed an acceptance by
XYZ.
4. Trademark License
During the term of this Agreement, PDQ grants to XYZ a
nonexclusive, worldwide and non-transferable license to use the
Marks on the XYZ Site, in connection with the XYZ Services and in
the marketing and promotion of the XYZ Services and the XYZ Site.
This license does not include the right to sublicense the use of the
Marks. XYZ's use of the Marks shall be in compliance with PDQ
Trademark Usage Guidelines, as amended from time to time, a copy
of which will be provided to XYZ prior to the launch of the XYZ Site.
4.1 XYZ agrees that the nature and quality of any materials or
services supplied by XYZ bearing the Marks shall be of high quality
in the Internet industry. PDQ shall have the right to determine, in its
reasonable discretion, whether such materials or services conform to
such quality standards. Upon PDQ's written request, XYZ shall
promptly provide PDQ with specimens of all materials bearing the
Marks. If PDQ determines that any materials bearing the Marks or any
services provided under the Marks fail to conform to such quality
standards, PDQ shall notify XYZ in writing of such non-conformance
and shall specify whether such non-conformance is material. If the
non-conformance is material, XYZ shall provide a corrected specimen
conforming to PDQ's quality standards to PDQ for review within
forty-five (45) days from the date of notice or agree to discontinue any
nonconforming uses or cease the use of all Marks on such materials
upon written notice from PDQ.
4.2 XYZ acknowledges that PDQ is the sole and exclusive owner
of the Marks. Except as prohibited by law, XYZ agrees that it will do
nothing inconsistent with such ownership, either during the term of
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this Agreement or afterwards. XYZ agrees that the use of the Marks
by XYZ shall inure to the benefit of and be on behalf of PDQ. XYZ
will not challenge the validity of the Marks under applicable law and
agrees that XYZ's utilization of the Marks will not create any right,
title or interest in such Marks in XYZ. Except as permitted in this
Agreement, XYZ agrees that it will not adopt or use the Marks as part
or all of any corporate name, trade name, domain names, trademark or
service mark or any other marks based on the Marks or any other
designation confusingly similar to the Marks. XYZ shall use the
Marks so that they create a separate and distinct impression from any
other trademark that may be used or affixed to materials bearing the
Marks or used in connection with services provided under the Marks.4.3 XYZ agrees to use reasonable commercial efforts to notify PDQ
of any unauthorized use of (i) the Marks, or (ii) other trademarks or
service marks in the online or electronic industries by third parties
based on or confusingly similar to the Marks. XYZ shall assist PDQ or
its authorized representatives, at PDQ's expense, in investigating or
prosecuting an action against such third parties. PDQ shall have the
sole right and discretion to bring, prosecute and settle infringement,
unfair competition and similar proceedings based on the Marks.
4.4 XYZ agrees not to apply to register the Marks either as a
trademark, servicemark, tradename, corporate name or domain name
or any word or combination of words confusingly similar to the Marks
anywhere in the world. If an application for registration is or has been
filed by or on behalf of XYZ in any country and relates to any mark
which, in the reasonable opinion of PDQ, is confusingly similar,
deceptive or misleading with respect to, or dilutes or in any way
damages the Marks, XYZ shall at PDQ's request, abandon all use of
such mark, and any registration or application for registration thereof
and shall reimburse PDQ all reasonable costs and expenses of any
opposition or related legal proceeding, including attorneys' fees,
instigated by PDQ or its authorized representative on account of such
usage.
5. Fees and Royalties
In consideration for PDQ's creation and development of the
Selector Service and the making of that product available to XYZ,
XYZ shall pay to PDQ, for the first twelve (12) month period
following the date on which the XYZ site is first accessible to End
Users (the "Launch Date"), a nonrefundable, minimum guaranteed
royalty fee of _____________ dollars ($_____________). The royalty
rate shall be an annual fee of _____ percent (__%) of the subscription
fee invoiced for each authorized employee, agent or contractor of an
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End User. Such fees will be paid monthly for all End Users'
employees, agents or contractors whose subscriptions were initially
activated or renewed in such month and shall be paid by the thirtieth
(30th) day of the following month.After the first anniversary of the Launch Date and for each year of
the term of this Agreement thereafter, XYZ and PDQ shall negotiate,
based upon XYZ's most recent experience with the Selector Service, a
royalty rate to be used in calculating payments to PDQ for the Selector
Service for the next year of this Agreement. However, if the parties
are unable to agree upon such royalty rate and the minimum
guaranteed royalty fee for any year, the royalty rate for such year shall
be equal to ______________ percent (__%) of the subscription fee
invoiced for each authorized employee, agent or contractor of an End
User.
6. Sales Referral Fee
In the event that any End User of the Selector Service who is not
already a customer of PDQ, contracts directly with PDQ to use any
database of electronic components through PDQ Online, as a result of
such subscriber's use of the Selector Service or the XYZ Services and
within ___________ (__) months of such End User's initial contact
with PDQ regarding the use of such PDQ product, for the first year of
each such subscription, PDQ shall pay to XYZ an amount equal to
_______________ percent (__%) of the net amount invoiced to such
End User for such year for such products (reduced by a reserve for
cancellations and bad debts), such payment to be made no less than
thirty (30) calendar days following the date of the invoice to the End
User.
7. Maintenance of Books and Records; Audits; Payments 7.1. XYZ Records
XYZ shall keep proper, accurate and up-to-date records and books
of account relating to all revenues received for the Selector Service
and make all such entries therein as may be necessary, in accordance
with generally accepted accounting principles, for a period of three
years from the date of each receipt of revenues, to enable the amount
of royalty payments under Section 5 to be ascertained.
7.2 PDQ Records
PDQ shall keep proper, accurate and up to date records and
books of account relating to any XYZ subscriber that contracts
directly with PDQ, as provided in Section 6, to use PDQ's Electronics
Components Database and the amount invoiced to such subscriber for
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each such contract for a period of three years from the date of each
such contract.7.3 Annual Statement
Both XYZ and PDQ shall furnish to each other a statement
(certified as accurate by an officer, director or other authorized
representative) showing in respect of the annual period ending on the
thirty-first (31st) of December in each year, a summary, in the case of
XYZ, of the revenues for the Selector Service and of the reserves for
uncollectible accounts, and in the case of PDQ, of each End User that
subscribes directly with PDQ as provided under Section 6 to use PDQ
Online and the amount of revenues from such End User for each such
subscription and of the reserves for cancellations and bad debts. Such
statement shall be furnished by the fifteenth (15th) day of the month
following the annual period in question. If either XYZ or PDQ (the
"Auditing Party") desires to verify the accuracy of any such statement
provided by the other party (the "Audited Party"), a representative or
representatives of the Auditing Party or an independent auditor
appointed by the Auditing Party shall be entitled at all reasonable
times during and after the expiration or earlier termination of this
Agreement within twenty-four (24) hours written notice to the Audited
Party: (i) to examine the records and accounts of the Audited Party
and to take extracts therefrom and to have copies thereof made by the
Audited Party, and (ii) to receive such further information as may be
reasonably required in connection with said records and accounts or
otherwise. The Audited Party represents that it will fully cooperate
with the examination set forth in this Section 7.3. Any statement or
information provided under this Section 7.3 shall be deemed to be
"Confidential Information", as provided under Section 10 of the
Formation Agreement, and all such Confidential Information shall be
protected from disclosure by PDQ and XYZ in accordance with the
principles set forth in Section 10 of the Formation Agreement.
7.4 Payments
All payments to either party under this Agreement shall be made by
wire transfer in immediately available funds. Each party to this
Agreement shall provide to the other wire transfer instructions for
such party within thirty (30) calendar days of the signing of this
Agreement.
8. Limited Warranty
8.1 Magnetic Media and Documentation
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PDQ warrants that if magnetic media provided hereunder are
physically damaged or physically defective at the time that the
Licensed Software are delivered to XYZ and if they are returned to
PDQ (postage prepaid) within ninety (90) days of delivery then PDQ
will provide XYZ with replacements at no charge.
8.2 Conformance to Specification
PDQ warrants that most current versions of the Licensed Software
substantially conform in all material respects to their published
specifications when used in the hardware and software environment
supported by PDQ. PDQ assumes no responsibility for the use of
superseded, outdated, uncorrected, or modified versions of the
Licensed Software.
8.3 Remedies
As XYZ's exclusive remedy for any material nonconformity or
defect in the Licensed Products for which PDQ is responsible, PDQ
shall attempt through reasonable effort to correct or cure such
nonconformity or defect. PDQ shall not be obligated to correct, cure
or otherwise remedy any such nonconformity or defect if XYZ has
made any unauthorized changes whatsoever or has misused or
damaged the Licensed Products in any respect or if XYZ has not
reported to PDQ the specific existence and nature of such
nonconformity or defect promptly in writing upon discovery thereof.
8.4 Disclaimer of Warranty
NEITHER PDQ NOR ITS LICENSORS (COLLECTIVELY
"LICENSORS") MAKE ANY WARRANTY, REPRESENTATION
OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREE-
MENT WITH RESPECT TO THE LICENSED PRODUCTS. PDQ
AND LICENSORS EXPRESSLY DISCLAIM AND EXCLUDE
ANY AND ALL IMPLIED WARRANTIES OF MERCHANT-
ABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT OF MNOP RIGHTS. PDQ AND LICENSORS DO
NOT WARRANT THAT THE LICENSED PRODUCTS WILL
SATISFY LICENSEE'S REQUIREMENTS OR ARE WITHOUT
DEFECT OR ERROR OR THAT THEIR OPERATION WILL BE
UNINTERRUPTED. PDQ AND LICENSORS DO NOT WARRANT
OR MAKE ANY REPRESENTATIONS OF CORRECTNESS,
COMPLETENESS, ACCURACY, RELIABILITY, CURRENTNESS,
OR OTHERWISE WITH RESPECT TO THE USE OR THE
RESULTS OF THE USE OF THE DATA OR ANY OTHER
ELEMENT IN THE LICENSED DATABASE CONTENT. THE
ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF
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THE LICENSED PRODUCTS IS ASSUMED BY LICENSEE. XYZ
acknowledges and agrees that it has not relied upon any representation
or warranty, express or implied, of PDQ or its licensors in entering
into this Agreement other than those made by PDQ and contained in
this Agreement.8.5 Limitations of Liability
XYZ, PDQ AND ITS LICENSORS SHALL NOT IN ANY CASE
BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSE-
QUENTIAL, INDIRECT OR PUNITIVE DAMAGES EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. PDQ AND LICENSORS ARE NOT RESPON-
SIBLE FOR LOST PROFIT, OR REVENUE, LOSS OF USE, LOSS
OF DATA, COSTS OF RECREATING LOST DATA, OR THE
COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM, OR
DATA, OR CLAIMS BY ANY MNOP. PDQ AND LICENSORS
SHALL NOT BE LIABLE FOR ANY CLAIM ARISING FROM OR
BASED UPON THE COMBINATION, OPERATION, OR USE OF
THE LICENSED PRODUCTS WITH EQUIPMENT, DATA, OR
PROGRAMMING NOT SUPPLIED BY PDQ, OR ARISING FROM
ANY ALTERATION OR MODIFICATION OF THE LICENSED
PRODUCTS. LICENSEE'S SOLE AND EXCLUSIVE REMEDY IS
SET FORTH IN THIS AGREEMENT XYZ acknowledges and agrees
that it has not relied upon any representation or warranty, express or
implied, of PDQ or its Licensor in entering into this Agreement other
than those made by PDQ and contained in this Agreement.
9. Representations and Warranties
9.1. PDQ Representations and Warranties
As of the Effective Date, PDQ warrants that (i) it has the authority
to grant the use of the Licensed Products pursuant to this Agreement;
(ii) the performance of this Agreement and PDQ's obligations
hereunder shall not breach any separate agreement by which PDQ is
bound; and (iii) the Licensed Products do not infringe any United
States copyright, trademark or trade secret right of any third party.
9.2 XYZ Representations and Warranties
As of the Effective Date, XYZ warrants that (i) it has the authority
to allow the use of the XYZ Content in connection with the XYZ
Services; (ii) the performance of this Agreement and XYZ's
obligations hereunder shall not breach any separate agreement by
which XYZ is bound; and (iii) the XYZ Content does not infringe any
copyright, trademark or trade secret right of any third party.
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10. Indemnification
Each party shall indemnify, defend and hold harmless the other
party, its officers, directors, employees, successors and assigns from
and against any and all claims, demands, actions, liabilities,
judgments, injuries, damages, losses, penalties, expenses and costs
arising from, relating to or resulting from the indemnifying party's
breach of its warranties and representations in Section 9, including,
without limitation, reasonable attorneys' fees and costs. XYZ shall
indemnify, defend and hold harmless PDQ, its officers, directors,
employees, successors and assigns from and against any and all
claims, demands, actions, liabilities, judgments, injuries, damages,
losses, penalties, expenses and costs arising from, relating to or
resulting from XYZ's use of the Licensed Products (except for claims
that the Licensed Products in the form originally provided by PDQ
infringes the patent or copyright of any third party).
11. Term and Termination
11.1 The initial term of this Agreement shall commence on the
Effective Date and continue for a period of five (5) years. Thereafter,
this Agreement shall automatically renew for successive one (1) year
terms, subject to the parties' mutual written agreement with respect to
the terms and conditions that shall apply to each renewal term;
provided, however, that this Agreement may be terminated by either
party upon ninety days written notice to the other party. Either party
may terminate this Agreement for cause if the other party has
materially breached this Agreement and has not corrected such breach
within thirty (30) days of receipt of specific written notice of same.
Upon termination for expiration or cause, XYZ agrees to immediately
discontinue all use of the Licensed Products and return all copies of
same to PDQ, at the expense of XYZ, and shall deliver a letter signed
by a duly authorized officer of XYZ certifying compliance with the
requirements. 11.2 The following provisions will survive any termination or
expiration of this Agreement: 7, 8.4, 8.5, 9, 10, 11 and 12.
12. General Conditions12.1 Governing Law
Any disputes under this Agreement shall be resolved under
California law without reference to conflict of laws principles. Any
controversy or claim arising out of or relating to this Agreement or the
breach hereof or the subject matter of this Agreement, except for an
action for injunctive relief, shall be settled by arbitration held in Santa
Clara County, State of California in accordance with the Rules of the
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American Arbitration Association, and judgment upon the award
rendered by the arbitrators may be entered in any court having
jurisdiction hereof. Any action for injunctive relief hereunder shall be
submitted to the exclusive jurisdiction of the state and federal courts in
Santa Clara County, California. The parties agree that the service of
any legal process issued by the above arbitrators or from said court
and delivered personally to a party hereto or sent by air courier, return
receipt requested, addressed to the parties herein above set forth shall
be good and sufficient service to confer personal jurisdiction upon the
parties in said arbitration or court.12.2 Entire Agreement
This Agreement sets forth the entire understanding and agreement
between XYZ and PDQ and supersedes all proposals or
communications, oral or written, between the parties relating to the
subject matter of the Agreement. No modification of this Agreement
shall be binding unless it is in writing and is signed by authorized
representatives of both parties.
12.3 Waiver
No waiver or any right under this Agreement shall be deemed
effective unless contained in writing signed by a duly authorized
representative of PDQ, and no waiver or any past or present right
arising from any breach or failure to perform shall be deemed to be a
waiver of any future right arising under this Agreement.
12.4 Severability
If any provision in this Agreement is invalid or unenforceable, that
provision shall be construed, limited, modified or, if necessary,
severed, to the extent necessary, to eliminate its invalidity or
unenforceability, and the other provisions of this Agreement shall
remain in full force and effect.
12.5 Assignment
This Agreement and the use of the Licensed Software provided
hereunder are not assignable by either party without the prior written
consent of the other, which consent shall not be unreasonably
withheld. Any attempt at assignment without such consent shall be
null and void and of no force and effect.
12.6 Force Majeure
If by reason of labor disputes, strikes, lockouts, riots, war, inability
to obtain labor or materials, earthquake, fire or other action of the
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elements, accidents, governmental restrictions, appropriation or other
causes beyond the control of a party hereto, either party is unable to
perform in whole or in part its obligations as set forth in this
Agreement, then such party shall be relieved of those obligations to
the extent it is so unable to perform and such inability to perform shall
not make such party liable to the other party. Neither party shall be
liable for any loss, injury, delay or damages suffered or incurred by
the other party due to the above causes.12.7 Taxes
XYZ is responsible for payment of all sales, use, VAT and other
taxes and duties and freight and insurance for all shipments by PDQ.
12.8 Notices
Any notice required or permitted to be sent under this Agreement
shall be delivered by hand, by overnight courier or by registered mail,
return receipt requested, to the address of the parties first set forth in
this Agreement or to such other address of the parties designated in
writing in accordance with this subsection.
PDQ, Inc. XYZ Corp.
By: ____________________ By: ____________________
Authorized Signature Authorized Signature
Name: __________________ Name: __________________
Title: _____________________ Title: ___________________
Date: _______________________ Date: ___________________
