Exclusive Supplier Agreement - Viscus and Make Your Move Inc.
EXCLUSIVE SUPPLIER AGREEMENT
This Exclusive Supplier Agreement (the "Agreement") is made and entered
into as of this 17 day of August, 2001 (the "Effective Date"), by and between
Viscus, a state of Delaware corporation, having its principal place of business
at 16912 Gridley Place Cerritos CA 90703 ("Customer"), and Make Your Move, Inc.,
a Nevada corporation, having its principal place of business at 321 Broadway
Blvd., Reno, Nevada 89502 ("Supplier"), with reference to the following facts:
A. Customer has entered into an agreement with [Wal-Mart] (the "Wal-Mart
Agreement") to operate and manage coffee stores (the "Coffee Stores") within all
Wal-Mart stores located in the territory consisting of [USA]. The term of the
Wal-Mart Agreement is for a period of 5 years commencing on October 2001 and
ending on October 2006.
B. Supplier is in the business of selling computers and computer components
including point-of-sale electronic equipment, hardware, and software, and
providing related services for such use in retail operations, such as the
operation of the Coffee Stores.
C. Customer desires to purchase from Supplier all computers and computer
components including point-of-sale equipment, hardware, and software, and
related services necessary to manage and operate the Coffee Stores and Supplier
desires to provide the foregoing to Customer on the terms and conditions set
forth herein.
Based upon the foregoing, and in consideration of the mutual promises set
forth herein, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Customer and Supplier
(collectively, the "Parties") hereby agree as follows,
1. Exclusive Sale and Purchase; Project Plan. Customer and Supplier agree
that so long as the Wal-Mart Agreement remains in effect, Customer
shall purchase exclusively from Supplier, in accordance with the terms
of the Project Plan described below, all computers and computer
components, including, without limitation, all point of sale equipment
and other hardware (the "Equipment"), software manufactured or
supplied by Supplier (the "Software"), and the various training,
consulting, installation, and support services (hereinafter
"Services") necessary for Customer to operate and manage the Coffee
Stores. Following the execution of this Agreement, Customer and
Supplier mutually agree to participate in the development and approval
of a project plan (the "Project Plan"). This Project Plan shall
provide both Parties with a general overview of the nature of
Customer's operation, and shall clearly specify the Equipment,
Software and Services which Customer will need to purchase from
Supplier to properly manage and operate the Coffee Stores during the
term of this Agreement. The Project Plan, when mutually agreed to by
the Parties, shall be set forth in writing and shall be executed by
both Parties. Such Project Plan may be amended, from time to time, but
only upon the mutual written consent of both Parties. If the Parties
are unable to agree in writing to a Project Plan within (30) days
after the execution of this Agreement, either Party may terminate this
Agreement by providing written notice to the other Party prior to
execution of the Project Plan. It is mutually agreed that both Parties
shall use their best efforts to execute the terms and conditions of
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the Project Plan. When Customer is in need of Equipment, Software or
Services to be provided by Supplier under the terms of the Project
Plan, Customer shall issue a purchase order to Supplier specifying the
type and amount of Equipment, Software and Services to be purchased
from Supplier. Such purchases orders shall be submitted to Supplier
within a reasonable time prior to the time in which Customer will need
to have the Equipment and Software operational. During the term of
this Agreement, Customer agrees that it will not purchase Equipment,
Software or Services specified in the Project Plan from any vendor,
other than Supplier, unless Supplier consents in writing to such
purchase.
2. Price and Taxes.
a. Purchase Price. The purchase price for the Equipment, Software
and Services shall be Retail price + 20% [Supplier's direct retail
price listing in effect at the time Customer issues a purchase order
above Supplier's cost at the time Customer issues a purchase order.
b. Prices Exclusive of Installation and Other Charges. All prices
are exclusive of installation and related charges, shipping and
insurance charges which shall be billed separately. Installation and
related charges are subject to change due to Customer's failure to
complete site readiness, non-standard site conditions, force majeure
events or delays caused by Customer. Customer agrees to pay all such
additional charges as invoiced by Supplier. Any such additional
charges, as a result of a force majeure event, shall be
pre-established and agreed to between the Parties prior to any worked
performed.
c. Prices Exclusive of Taxes. All prices are exclusive of sales,
use, excise, and other taxes, duties or charges. Unless Customer
provides evidence of tax exempt status, Customer shall pay, or upon
receipt of invoice from Supplier shall reimburse, Supplier for all
such taxes or charges levied or imposed on Customer, or required to be
collected by Supplier, resulting from this transaction or any part
thereof.
d. FOB and Insurance. All prices are FOB unless instructed
otherwise. Supplier may arrange for insurance and standard commercial
shipping, the costs of which will be invoiced to Customer.
2.5 Right to Modify Orders. Prior to delivery, Supplier reserves the right
to make substitutions, modifications and improvements to the Equipment
and Software, provided that such substitution, modification or
improvement shall not diminish or materially affect the performance of
the Software applications as they were originally demonstrated to and
agreed upon by Customer and Supplier.
3. Payment/Financing. Unless otherwise agreed, invoice payment terms for
all purchases made under this Agreement shall be net ten (10) calendar
days on a per order basis and are subject to credit review by
Supplier. All payments shall be made to Supplier not later than the
agreed number of days from date of invoice. Late payments shall result
in the assessment of a late charge equal to one and one-half percent
(1 1/2%) per month on any outstanding balance, or the maximum amount
of interest chargeable by law, whichever is less.
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4. Equipment Warranty. Supplier's sole responsibility to Customer with
respect to any Equipment or components and parts manufactured by a
third party and incorporated into the Equipment shall be to pass
through to Customer such original equipment manufacturer's available
product warranty. The warranty provided by said third parties does not
cover (i) any item of the Equipment which has been altered or modified
including any change, addition, or improvement, and (ii) any damage,
defects, malfunctions or service failures caused by:
a. Customer's failure to follow Supplier's or the Equipment
manufacturer's environmental, installation, operation or maintenance
specifications or instructions;
b. Modifications, alterations or repairs made other than by
Supplier or original Equipment manufacturers;
c. Customer's mishandling, abuse, misuse, negligence, or improper
storage, servicing or operation of the Equipment (including without
limitation use of equipment that is not designed or suitable for use
in conjunction with the Equipment purchased from Supplier);
d. Power failures, surges, fire, flood, accident, actions of
third parties or other like events outside Supplier's control. Repairs
necessitated during the warranty period by any of the foregoing causes
specified in Section 4.4 may be made by Supplier, and Customer shall
pay Supplier standard charges for time and materials, together with
all shipping and handling charges arising from such repairs.
THIS WARRANTY CONSTITUTES SUPPLIER'S SOLE AND EXCLUSIVE WARRANTY WITH
RESPECT TO EQUIPMENT AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR
STATUTORY INCLUDING THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
5. Software.
a. License to Software. Supplier grants to Customer a
non-exclusive, non-transferable license to use the Software and
related documentation provided hereunder. The license term is
perpetual and shall continue as long as Customer continues as a viable
entity, the fees for support and maintenance are current and the other
terms of this Agreement are met. The Software may include software and
documentation that are owned by third parties and distributed by
Supplier under license from the owner.
b. Copies of Software. Customer shall not make any copies of the
Software, except as authorized in writing by Supplier.
c. Confidentiality of Software. Customer shall maintain the
confidentiality of the Software and shall not sub-license, sell, rent,
disclose, make available, or otherwise communicate the Software to any
other person, or use the Software except as expressly authorized in
writing by Supplier.
d. Ownership of Software. The Software and all copies thereof
will at all times remain the sole and exclusive property of Supplier
or its licensor, as applicable, and Customer shall obtain no title to
the Software.
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e. Copyright. Customer shall reproduce all copyright notices and
any other proprietary legends on any copy of the Software made by
Customer.
f. Alteration. Customer shall not modify, disassemble, or
decompile the Software.
g. Media. If Customer sells or otherwise disposes of media owned
by Customer on which the Software is fixed, such media must be erased
before any sale or disposal.
h. Warranty. Supplier does not warrant that the operation of the
Software will be error free. However, Supplier will use reasonable
efforts to correct any defects reported by Customer in writing or by
verbal notification to Supplier following the date of shipment or
installation, if installation was by Supplier, exclusive of defects
caused by physical imperfections in Software discs due to mishandling,
operator error or interfacing other systems that are not compatible
with the operations of the Equipment.
i. Substantial Compliance. Supplier warrants that the Software
provided under this Agreement substantially complies with the
representations made by Supplier when demonstrating the Software.
THIS PROVISION CONSTITUTES SUPPLIER'S SOLE AND EXCLUSIVE LIABILITY AND
CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR DEFECTIVE OR NON-CONFORMING SOFTWARE
AND IS IN LIEU OF ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY INCLUDING
THE WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. Title and Risk of Loss.
a. Date of Delivery. Delivery of any item of the Equipment and
Software shall be deemed complete when Customer acknowledges receipt
of the Equipment and Software by signature at time of delivery. Title
to, and risk of loss for, the Equipment and Software sold or licensed
under this Agreement shall pass to Customer upon delivery as defined
herein.
b. Security Interest. As security for the full and prompt payment
and performance when due of all obligations of Customer to Supplier
under this Agreement, Customer hereby grants to Supplier a security
interest in all Equipment and Software supplied to Customer hereunder.
Customer shall execute any notice or other documentation as may be
reasonably requested by Supplier at any time in order to accomplish
the intentions of this section. This obligation shall include an
obligation to execute any and all necessary financing statements to
perfect the security interest herein granted to Supplier as well as
its ownership interest, if any, herein evidenced in order to perfect
Supplier's interest in the Equipment and Software and its rights to
payment and performance by Customer under this Agreement. Supplier
shall pay all expenses of filing any necessary financial statements
and documents with the appropriate public offices.
7. Installation Services. The following shall apply in the event that
installation and/or integration services are part of any purchase
order received by Supplier under this Agreement. In connection with
the providing of installation and/or integration services, Customer
and Supplier agree that the following shall be applicable:
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a. Access to Customers Premises. Customer shall allow employees
or agents of Supplier access to the premises and facilities where the
Equipment and Software is to be installed at all hours consistent with
the requirements of the Project Plan.
b. Access Necessary to Complete Project. Customer shall provide
Supplier with all resources and required documentation,
specifications, procedures, equipment, and systems as well as access
to employees, agents, consultants, or third parties necessary for
completion of the installation services.
c. Environmental. Customer shall assure that the premises will
meet all temperature, humidity controlled, air-conditioned, and other
environmental requirements set forth in the applicable Equipment
specifications and will be dry and free from dust and in such
condition as not to be injurious to the employees or agents of
Supplier or the Equipment to be installed.
d. Mechanical. Customer shall provide all cabling, patch cables,
patch panels, conduits, floor reinforcements or other mechanical
modifications pertinent to installation of the Equipment for all sites
where the Equipment and Software will be installed.
e. Electrical. Customer shall provide ample electric current of
proper voltage for any necessary purpose suitable terminated in rooms
and work spaces where it is required.
f. Space for Installation. Customer shall provide suitable and
easily accessible space for installation of the Equipment within the
premises.
g. Permits and Approvals. Customer shall be responsible for the
timely and proper securing of all permits, licenses, consents,
including landlords, and approvals in connections with the purchase
and installation of the Equipment, if any.
h. Indemnification. Customer specifically agrees to indemnify and
hold Supplier harmless from all liability and costs arising from
Customer and its contractors, subcontractors and employees for site
preparation efforts or for the latent conditions of the site.
i. Installation. Supplier will install the Equipment and Software
at the premises requested by Customer. Customer will pay an additional
charge for any required cable or conduit or additional coordination
performed by Supplier. Supplier will use its best efforts to install
the Equipment and Software without damaging Customer's premises.
Supplier, however, will not be responsible for replacing ceiling
tiles, painting, plastering or making other repairs to Customer'
premises resulting from the installation of the Equipment and
Software. Customer hereby holds Supplier harmless from any such damage
to Customer' property, unless the damages are the result of a
negligent act or omission of Supplier's employee or subcontractor.
j. Completion of Installation. Supplier shall complete the
installation services in accordance with Supplier's normal
installation practices. Supplier shall perform its standard acceptance
testing on the installed Equipment and Customer agrees to monitor said
testing. Upon completion thereof, as described above, Supplier shall
notify Customer the Equipment has been installed and operates in
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accordance with applicable test and performance specifications. The
date of such notification shall be the installation date. Supplier may
at its sole discretion use subcontractors to provide installation
services.
8. Training, Maintenance, and Support Services.
a. Training. Supplier will provide documents, manuals, and visual
aids to be utilized in the required training of Customer's employees
in use of Equipment and Software purchased under this Agreement.
b. Company Trainers. Customer shall designate specific members of
its staff as "Company Trainers." once fully trained and certified by
Supplier, Company Trainers will become the first resources to be
contacted by Customer' personnel who require assistance. Questions or
problems that cannot be resolved by Company Trainers will be referred
to Supplier. Company Trainers may be required to attend refresher or
re-certification training from time to time if necessitated by
changes, expansion or improvements in said Equipment and Software. The
Parties agree that training of the Customer's "Trainers" shall
commence on or about end of 2001. In situations where it is necessary
for Supplier's personnel to travel in order to provide services for
Customer, Customer agrees to pay all travel expenses for
transportation, food and lodging.
c. Modifications and Customization of Software. Suppliers shall
not be responsible for providing any customizations to the Equipment
and Software purchased under this Agreement, including but not limited
to "Interfaces" to other software or hardware systems owned, leased,
or licensed by Customer. If Customer desires specific modifications
and/or customizations to the Equipment and Software purchased under
the Agreement, then Customer may retain Supplier's services for the
development of said applications and will be contracted under a
separate agreement. d. Maintenance Fees. Customer agrees to pay
monthly maintenance and support fees for web-sites development and
maintenance.
e. Support Services. So long as Customer is current on monthly
support and maintenance fees, Supplier shall provide the following
support services for Software purchased under this Agreement.
i. Upgrades. Supplier shall provide any and all upgrades,
enhancements, or additions to existing functionality of Software
purchased under this Agreement. Customer acknowledges that such
upgrades and enhancements may not be operative in conjunction with
either customized or modified software created by or for Customer, and
that Supplier will not be obligated to retrofit the same. Except for
those modifications and customizations agreed upon and performed by
Supplier on behalf of Customer.
ii. Assistance. For the first thirty (30) day period
following the installation date at each customer location,
Customer shall be entitled to 1 to 2 hours of assistance from
Supplier at no charge each month. Calls for assistance which are
in excess of the allowances stated above shall be charged at the
rate of Industrial Standard.
iii. Defects. In the event that a problem is reported to
Supplier as a defect in an Equipment or Software purchased under
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this Agreement, and Supplier's diagnosis confirms that the defect
is related to customizations or modifications to said products
made by Customer or an agent of Customer, Supplier retains the
right to invoice Customer for all time spent diagnosing said
problem at a rate of Industrial Standard per hour. Any further
work will be billable only at Customer' option and request
pursuant to a purchase order and/or separate Service Agreement.
9. Excusable Delay. Supplier shall be excused from performance under the
purchase order and not be liable to Customer for delay in performance
attributable in whole or in part to any cause beyond its reasonable
control, including but not limited to, action or inaction of any
government, war, civil disturbance, insurrection, sabotage, act of
public enemy, labor strike, difficulty or dispute, unpredictable
failure or delay in delivery by Supplier's suppliers or
subcontractors, transportation difficulties, shortage of energy,
materials, accident, fire, flood, storm or other act of God, or
Customer' fault or negligence. In the event of an excusable delay,
Supplier shall make reasonable efforts to notify Customer of the
nature and extent of such a delay and Supplier will be entitled to a
reasonable schedule extension. In the event a delay results from
Customer's fault or negligence, Supplier will also be entitled to an
equitable adjustment calculated on a time and materials basis which
shall be mutually agreed upon.
10. Change, Cancellation, and Termination.
a. Cancel of Purchase Order. If Customer cancels a purchase order
within thirty (30) days prior to scheduled shipment date, Customer
shall pay to Supplier a restocking fee of Twenty percent (20%) of the
canceled purchase order. Supplier shall not assess any cancellation
charges if Supplier cancels an order.
b. Breach of Agreement. In the event that either Party breaches
any provision of this Agreement, and fails to cure such breach within
thirty (30) days after written notice from the other Party, the
breaching Party shall be in default.
c. Liability of Supplier. Supplier's maximum liability and
Customer's maximum recovery for any claim arising out of or in
connection with the sale or use of the Equipment and Software shall
not in the aggregate exceed the price paid by Customer for such
Equipment and Software hereunder.
d. Changes to Software. Supplier agrees that it will not make
changes in the Software that will prevent Customer from running the
Software on the Equipment provided by Supplier as part of its system
for a One (1) year period following installation. Supplier agrees that
if such event occurs, it will provide a refund to Customer calculated
upon a Month-by-Month pro-rated depreciation schedule. The Parties
understand that the aforementioned hardware will only be guaranteed to
operate with the Software for a One (1) year period. Hardware upgrades
may be required in order to operate future and improved versions of
the Software. Supplier shall provide Three (3) months advance notice
of anticipated changes in future versions of the Software that will
require Customer to upgrade or replace existing Equipment in order to
operate said future versions of the Software upon its general release.
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11. Infringement Indemnification.
a. Notification of Infringement. Customer agrees to promptly
notify Supplier in writing of any notice, suit, or any action against
Customer based upon a claim that the Software infringes a U.S. patent,
copyright, trademark, or trade secret of a third party. Supplier will
defend at its expense any such action, except as excluded below, and
shall have full control of such defense including all appeals and
negotiations, and will pay all settlement costs, or damages awarded
against Customer, but Supplier shall not be liable to Customer for
special incidental, indirect or consequential damages.
b. Replacement of Infringed Software. In the event of such
notice, suit or action, Supplier will at its expense procure for
Customer the right to continue using the Software, or modify the
Software to render such non-infringing, or accept, return, and replace
such with substantially equivalent non-infringing software, or accept
return of the Software and refund or credit to Customer the amount of
the original purchase price, less a reasonable charge for depreciation
(based upon a Month by Month usable life).
c. Limitations on Infringement Liability. The preceding
agreements by Supplier in this section shall not apply to any
hardware, software, or related product or portion thereof manufactured
to specifications furnished by or on behalf of Customer, to any
infringement arising out of the use of the Software in combination
with other hardware, software, or related product not furnished by
Supplier, or to any patent, copyright, trademark or trade secret in
which Customer or subsidiary or affiliate thereof, has a direct or
indirect interest, or if Customer has not provided Supplier with
prompt notice, authority, information and assistance necessary to
defend the action. The foregoing states the entire liability of
Supplier for patent, copyright, trademark and trade secret
infringements by the Software or portion thereof.
12. Technical Data and Invention.
a. Technical Data. Unless specifically identified and priced in
this contract as a separate item or items to be delivered by Supplier
(and in that event, except to the extent so identified and priced),
the sale of goods hereunder confers on Customer no right in, license
under, access to, or entitlement of any kind, to any of Supplier's
technical data including but not limited to design, process
technology, software and drawings, or to technical data including but
not limited to design, process technology, software and drawings, or
to Supplier's invention (whether or not patentable) irrespective of
whether any such technical data or invention or any portion thereof
arose out of work performed under or in the course of this contract,
and irrespective of whether Customer has paid or is obligated to pay
Supplier for any part of the design and/or development of the goods.
b. Data Received from Customer. Supplier shall not be obligated
to safeguard or hold confidential any data whether technical or
otherwise, furnished by Customer for Supplier's performance of this
contract unless (and only to the extent that) Customer and Supplier
have entered into a separate mutual non-disclosure and confidentiality
agreement.
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c. Data Received from Supplier. Customer acknowledges and
recognizes that Supplier is in the business of selling computers,
computer components and equipment, and software, which business is
highly competitive, and that Customer, during its relationship with
Supplier, will have access to and become familiar with certain
proprietary information of Supplier, including without limitation,
client information, design information, methods of operation, and
technical data of a highly confidential nature. During the term of
this Agreement and at all times thereafter, Customer agrees that,
unless this information has already become common knowledge or unless
required to disclose it by a court order or governmental process,
Customer shall hold the information in trust solely for Supplier's
benefit and Customer shall not use or exploit such information for its
own benefit, and shall not directly or indirectly disclose it to any
person or entity, other than Customer's employees or personnel,
without Supplier's prior written permission. Customer may disclose
such information to its employees and personnel, but only if such
employees and personnel have a need to know of such information in the
course of Customer's operation of its business. With respect to all
confidential information, Customer will instruct its employees and
personnel to keep this information confidential and not to disclose it
directly or indirectly to any person or entity without Supplier's
prior written permission.
13. Sale or Cessation of Customer's Business. In the event of (i) a sale
or other disposition of Customer's business, either by sale or other
disposition of all or substantially all of its assets or the sale or
other disposition of all or a majority of the stock/membership
interests in Customer, or (ii) an assignment or other conveyance of
its rights to manage and operate the Coffee Stores under the Wal-Mart
Agreement, Customer agrees that it will cause the transferee of the
business or the assignee of its rights under the Wal-Mart Agreement to
assume Customer's obligations under this Agreement and no such
transfer or assignment shall operate to release Customer from
Customer's obligations under this Agreement without the prior written
consent of Supplier in Supplier's sole and absolute discretion.
Customer further agrees that prior to execution of this Agreement, it
will provide Wal-Mart with notice of this Agreement and the provisions
of this Section 13. In the event of a liquidation or other cessation
of Customer's business (without sale or transfer of the business),
Customer shall give Supplier at least Three (3) months prior written
notice of its intention to discontinue its business. Failure to comply
with this Section 13. Shall constitute a material breach of this
Agreement by Customer.
14. Assignment. Neither Party may assign this Agreement in whole or in
part without the prior written consent of the other Party. (It shall
not be considered an "assignment" if either Party applies the contract
to wholly owned subsidiaries, or, to other ventures in which they
remain the controlling entity, provided, however that the forgoing
shall not release such Party from or affect such Party's obligations
under this Agreement.)
15. Term. This Agreement shall become effective on the date upon which the
Party last signing below signs this Agreement and shall remain in
effect for so long as the Wal-Mart Agreement remains in effect, unless
otherwise terminated earlier pursuant to the terms of this Agreement
or terminated earlier by mutual written consent of the Parties.
Furthermore, either Party may terminate this Agreement immediately in
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the event that the other Party has breached a provision of this
Agreement and has failed to cure the breach within a reasonable time
or in the event that the other Party shall become liquidated,
dissolved, bankrupt or insolvent, or shall take any action to be so
declared.
16. Miscellaneous.
a. Entire Agreement. This Agreement and attached Exhibits
constitute the entire agreement between Customer and Supplier with
respect to the subject matter hereof and there are no representations,
understandings or agreements which are not fully expressed in this
Agreement.
b. Cooperation. The Parties acknowledge and agree that successful
completion of this Agreement shall require the full and mutual good
faith cooperation of each of the Parties.
c. Amendments. No amendment, change, waiver, or discharge hereof
shall be valid unless in writing and signed by the Party against which
such amendment, change waiver, or discharge is sought to be enforced.
d. Nevada Law; Exclusive Jurisdiction and Venue. This Agreement
shall be governed in all respects by the laws of the State of Nevada
without regard to its conflict of laws provisions, and Corporation and
Contractor agree that the sole and exclusive venue and jurisdiction
for disputes arising from this Agreement shall be the appropriate
state or federal court located in the City of Reno, and Customer and
Supplier hereby submit to the venue and jurisdiction of such courts.
e. Notice. Any notice provided pursuant to this Agreement, if
specified to be in writing, shall be in writing and shall be deemed
given (i) if by hand delivery, upon receipt thereof, (ii) if by mail,
three (3) business days after deposit in the United States mails,
postage prepaid, certified mail, return receipt requested, (iii) if by
facsimile transmission, upon electronic confirmation thereof, (iv) if
by electronic mail (e-mail), upon electronic confirmation thereof or
(v) if by next day delivery service, upon such delivery. All notices
shall be addressed as follows (or such other address as either Party
may in the future specify in writing to the other):
In the case of Supplier: In the case of Customer:
Attn: Mr. Henry Rolling Attn: Mimi H. Ban
321 Broadway Blvd. 16912 Gridley Place
Reno, Nevada 895022 Cerritos, CA 90703
Phone: (775) 322-5567 Phone: (714) 994-5800
Email: ___________________________ Email: mb@viscus.com
a. Waiver. The wavier or failure of either Party to exercise any
right in any respect provided for herein shall not be deemed a waiver
of any further right hereunder.
b. Interpretations. All references to "Business Days" shall mean
all days excluding Saturdays, Sundays and legal holidays observed in
Reno, Nevada. All references to the masculine, feminine, neuter or
singular shall also refer to the masculine, feminine, neuter or
plural, where applicable.
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c. Severability. If any section, portion, provision, paragraph,
clause, sentence, language or word of this Agreement is determined to
be invalid, illegal, void, voidable or unenforceable for any reason
whatsoever, this Agreement shall be read as if it did not contain such
section, portion, provision, paragraph, clause, sentence, language or
word, it is to that extent to be deemed omitted, and the balance of
this Agreement shall remain enforceable.
d. Counterparts. This Agreement may be executed in several
counterparts, including by means of facsimile signatures, all of which
taken together shall constitute the entire agreement between the
Parties hereto.
e. Headings. The section headings used herein are for reference
and convenience only and shall not enter into the interpretation
hereof.
f. Approvals and Similar Actions. Unless otherwise provided
herein, where agreement, approval, acceptance, consent or similar
action by either Party hereto is required by any provision of this
Agreement, such action shall not be unreasonably delayed or withheld.
g. Attorneys' Fees. Each Party hereto shall be responsible for and
shall pay for their own costs and attorneys' fees. Notwithstanding the
foregoing, if either Party brings any action or proceeding, subsequent
to the execution of this Agreement, to interpret or enforce any
provision hereof, the prevailing Party shall be entitled to reasonable
fees and costs, including attorneys' fees.
h. Further Documents. Each Party agrees to perform any further
acts and to execute and deliver any additional documents which may be
reasonably necessary to effectuate the provisions of this Agreement.
CUSTOMER: SUPPLIER:
Viscus Coffee International Inc., Make Your Move, Inc., a Nevada
a Delaware corporation Corporation
By/s/Mimi Ban By/s/Henry L. Rolling
Name Mimi Ban NameHenry L. Rolling
Title President TitlePresident
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