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a)
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the
failure of a Party to perform, comply with, or observe any other term,
condition, or provision in this Agreement, and the continuance of such
failure for a period of thirty (30) days after such Party's receipt of
written notice from
the other Party specifying the
failure;
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b)
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the
involuntary transfer by a Party of its interest in this Joint
Venture or, except as specifically permitted pursuant to this
Agreement, the voluntary attempt to or actual transfer of its interest in
the Joint Venture without the other Party's prior written
consent;
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c)
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the
dissolution of a Party;
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d)
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the
filing of a petition by a Party: (i) in any bankruptcy or other insolvency
proceeding; (ii) seeking any relief under the bankruptcy laws or any
similar debtor relief law; (iii) for the appointment of a liquidator or
receiver for all or substantially all of the Party's property or for the
Party's interest in this Joint Venture;
and
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e)
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any involuntary bankruptcy
proceeding against a Party which has not been dismissed 120 days after
commencement, or a Party's written admission that it cannot
meet its obligations as they become due, or the assignment by
such Party for the benefit of its creditors.
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1.
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FORMATION.
In accordance with this Agreement, the Parties hereby form the
Joint Venture-Strategic Alliance under the laws of New York to do
business under the name of BlueSafe. The Parties hereby agree that shortly
after the execution of this Agreement, the Parties will form a limited
liability company, which they will jointly own, for the sole purpose of
carrying on the business of the Joint Venture. The Parties will also enter
into an operating agreement that will set forth the Parties' respective
rights regarding the joint venture and the operation of the limited
liability company.
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2.
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BUSINESS
PURPOSE. The
purpose of the Joint Venture shall be as
follows:
To
acquire and hold the business interest in common as it relates to the
Addendums and Exhibits
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3.
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TERM
AND TERMINATION. The term of this Agreement shall be for three
(3) years , commencing on the Effective Date, unless sooner terminated
by:
· The
Parties' mutual consent;
· Operation
of the provisions of this Agreement;
· The
non-defaulting Party upon the occurrence of an Event of Default;
or
· A
Party's acquisition of all of the Joint Venture interests of the other
Party.
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4.
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REMEDIES OF THE NON-DEFAULTING
PARTY. On the occurrence of any Event of Default, the
non-defaulting Party may, at its option and in its sole discretion, and in
addition to all other rights, remedies, and recourses afforded it
hereunder or by law or equity, terminate this Agreement by giving written
notice to the defaulting Party.
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5.
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FORCE MAJEURE. No Party
shall be held liable or responsible to the other Party, nor be deemed to
be in breach of this Agreement or cause an Event of Default, for failure
or delay in fulfilling or performing any provision of this Agreement when such failure or
delay is caused by or results from any Force Majeure event. The Party
claiming Force Majeure shall communicate the circumstances of the event to
the Joint Venture and the other Party and shall take all reasonable action
to mitigate such event. If such Force Majeure has existed for nine (9)
months out of the last twelve (12) months, this Agreement may be
terminated by any Party.
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6.
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PLACE OF BUSINESS AND OFFICE.
The Joint Venture shall maintain its principal
office at 401 Franklin Avenue, Garden City, NY 11530: The Parties may at
any time change the location of the Joint Venture's office and may
establish additional offices.
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7.
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BOOKS AND RECORDS.
Partner 1 shall maintain all necessary books and records relating
to the affairs of the Joint Venture. The book and records shall be
maintained in accordance with accounting standards and practices generally
accepted in the United States. The Parties shall mutually appoint an
accountant to serve as the Joint Venture's accountant (the "Accountant")
The Parties agree to render all necessary assistance to the Accountant,
including the delivery of all records held by the same in relation to the
Joint Venture. The Parties agree to immediately give all cooperation to
the Accountant and his or her staff as and when requested to enable the
Accountant to fulfil his or her duties and shall do nothing to impede or
delay such performance. The Parties shall each have the right, at any
time,
to audit and inspect all reports, accountings and records prepared
by Accountant
pertaining to the Joint
Venture.
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8.
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FISCAL YEAR END. The
fiscal year of the Joint Venture shall close on December 31st every year
of its operation.
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9.
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DIVISION OF PROFITS. The
profits earned by the Joint Venture shall be calculated at the end of each
month with distribution by the end of the 3'4
week following the billing month; and, a quarterly settlement statement at
the end of each fiscal quarter. Profits shall be divided as represented in
the Exhibit(s) .between the Parties as
follows:
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10.
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MANAGEMENT. The overall
management and control of the Joint Venture shall be vested equally in the
Parties. The primary points of contact for each Party are as
follows:
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11.
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NO RESTRICTION ON OTHER
BUSINESS. Nothing contained herein shall be deemed to restrict in
any way the freedom of either of the Parties to conduct any
other business
or activity whatsoever and wheresoever without any accountability
to the
other; provided, however, that the Parties must disclose to each other any
business interest which may conflict with the Joint Venture. The Parties
agree that clients that are directly billed by the Joint Venture shall be
considered clients of the Joint Venture; provided, however, nothing herein
shall prevent a party from pursuing or continuing pre-existing client
relationships even if any such clients become clients of the Joint
Venture. The Parties severally undertake to use their best efforts in
performing all of their obligations hereunder for the purposes of the
Joint Venture.
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12.
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JOINT VENTURE BANK ACCOUNT.
The Parties shall establish a bank account for the Joint Venture.
From time to time the Parties will mutually agree upon distributions of
working capital, profits or other funds received by the Joint Venture from
the Joint Venture's bank account to the Parties' respective separate bank
accounts.
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13.
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ASSIGNMENT. This
Agreement shall not be assigned or transferred (nor the performance of any
obligations hereunder subcontracted) by either Party, except with the
written consent of the other Party.
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14.
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INTELLECTUAL PROPERTY DEVELOPED
DURING THE JOINT VENTURE. If any
Intellectual Property is created or developed by the Parties in the
conduct of the Joint Venture, such Intellectual Property will be a Joint
Venture asset owned by the Parties based on the division of profits
percentage as set forth in Section 11 herein and must be used only for the
purposes of the Joint Venture.
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15.
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LIMITATION OF
LIABILITY. No Party shall have any liability to the other
Party or to the Joint Venture for any loss suffered as a result of any
action, failure to take action or error in judgment, provided
that such course of conduct did not constitute negligence or wilful
misconduct.
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16.
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INDEMNIFICATION. Each
Party, along with their respective officers, directors, employees and
agents shall be indemnified and held harmless by the Joint Venture from
and against any and all claims, losses, liabilities, expenses, judgments
and amounts paid in settlement arising out of any act (or omission)
performed in connection with the Joint Venture; provided, however, that
such act or omission was taken in good faith and did not constitute gross
negligence or wilful misconduct on the part of a Party. An indemnity under
this Section shall be paid solely out of and to the extent of the Joint
Venture assets and shall not be a personal obligation of any
Party.
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17.
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CONFIDENTIALITY. The Parties
recognize that, in connection with the performance of this Agreement, each
Party may disclose Confidential Information to the other Party. The
Parties agree that neither shall use any such disclosed Confidential
Information for any purpose other than in the performance of its
obligations under this Agreement and that neither shall, during the
continuance of the Joint Venture or after its termination by any means,
divulge to any person any of the other Party's Confidential Information.
Confidential Information that may come to the Parties' knowledge in the
course of this Joint Venture may only be divulged with the written consent
of the other Party, or to the other Party's heirs, administrators, or
assigns. Each Party agrees to take all reasonable measures to protect the
secrecy and confidentiality of, and avoid disclosure or unauthorized use
of, the other Party's Confidential
Information.
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18.
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DISSOLUTION
OR INCAPACITY OF A PARTY. The dissolutions or
incapacity
of a Party shall cause the Joint Venture to be dissolved at the
completion of the then-current fiscal year. The profits and proceeds from
the sale of assets shall be divided pro
rata in accordance with the Parties' respective Capital
Contributions between the surviving Party and the legal representative,
guardian, or trustee of the dissolved, deceased, or incapacitated
Party.
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19.
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WINDING UP.
As soon as is practicable after termination of this Agreement, the
affairs of the Joint Venture shall be wound up and the assets and business
of the Joint Venture shall be liquidated. If there are any proceeds from
such liquidation, those proceeds shall be applied and distributed in the
following order of priority:
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(A) to the
payment of all debts and liabilities of the Joint Venture and all expenses
of liquidation;
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(B) to the
establishment of such reserves as may be deemed reasonably necessary to
provide for contingent or unforeseen liabilities or obligations of the
Joint Venture; and
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to the
Parties, on a pro
rata basis based on the division of profits
percentage as set forth in Section I 1
herein.
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20.
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OTHER INSTRUMENTS. The
Parties agree that they will each execute such other and further
instruments and documents as
are or may become reasonably necessary or convenient to effectuate
and carry out the purposes of this
Agreement.
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21.
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AMENDMENTS. This
Agreement may be amended at any time and from time to time, but any
amendment must be in writing and signed by each person who is then a
Party.
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22.
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ARBITRATION. All
disputes between the Parties arising from this Agreement may be submitted
by the parties to arbitration under the rules of the American Arbitration
Association.
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23.
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NOTICES. Any notice
required by this Agreement or given in connection with it, shall be in
writing and shall be given to the appropriate party by personal delivery
or by certified mail, postage prepaid, or recognized overnight delivery
services at the addresses set forth in this
Agreement.
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24.
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GOVERNING LAW. This
Agreement is executed and intended to be performed in the State of New
York, and the laws of that state shall govern its interpretation and
effect.
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25.
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SUCCESSORS. This
Agreement shall be binding on and inure to the benefit of the respective
successors, assigns, and personal representatives of the Parties, except
to the extent of any contrary provision in this
Agreement.
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26.
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SEVERABILITY. If any term, provision,
covenant, or condition of this Agreement is held by a court of competent
jurisdiction to be invalid, void, or unenforceable, the rest of the
Agreement shall remain in full force and effect and shall in no way be
affected, impaired, or invalidated.
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27.
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ENTIRE AGREEMENT. This
instrument contains the entire agreement of the Parties relating to the
rights granted and obligations assumed in this Agreement. Any oral
representations or modifications concerning this Agreement shall be of no
force or effect unless contained in a subsequent written modification
signed by the Parties hereto.
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28.
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COUNTERPARTS.
This Agreement may be executed in any number of counterparts by the
Parties, and all such counterparts shall together constitute one Agreement.
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| PARTNER 1 | Data Storage Corporation |
| By:/s/ Charles M. Piluso | |
| Name: Charles M. Piluso | |
| Title: President | |
| Date: 3/2/10 | |
| PARTNER 2 | United Telecomp, LLC |
| By:/s/Niyazi Nuredin | |
| Name: Niyazi Nuredin | |
| Title: Partner | |
| Date: 3/2/10 |