CPY » Topics » 15 . General Provisions.

This excerpt taken from the CPY 10-K filed Apr 21, 2005.

15.           General Provisions.

                15.1 “Prohibition Against Assignment; Binding Effect” Neither party shall have any right or ability to assign, assume, transfer or sublicense any obligations or benefit under this Agreement without the written consent of the other, except that a party may assign and transfer this Agreement and its rights and obligations hereunder to any third party under a Change in Ownership. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. If Licensor transacts a Change in Ownership, Licensee shall have the option to pay Licensor for the right to use the Deposit Materials (as defined in Exhibit D) in accordance with Exhibit B.

                 15.2        “Notices and Requests” All notices, requests and other communications hereunder shall be in writing and shall be delivered in person or sent by nationally recognized overnight courier service, or by facsimile transmission (with confirmation of receipt) to the address or facsimile number of the party set forth on the signature page of this Agreement or to such other address designated in writing by the receiving party. Unless otherwise provided, notice shall be effective on the date it is officially recorded as delivered, as evidenced by delivery receipt or equivalent.

                15.3         “Controlling Law” This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of Colorado without regard to any conflict of laws principles. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and reasonable attorneys’ fees.

                15.4         “Entire Agreement” Upon execution by both parties, this Agreement (including all exhibits hereto), and any attendant Statement(s) of Work executed between the parties, shall constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous proposals (oral or written), negotiations, conversations, or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry custom. As of the Effective Date, this Agreement shall also supercede the provisions of that certain License Agreement between the parties dated as of June 30, 2004. This Agreement shall not be modified except by a written instrument dated subsequent to the Effective Date and signed on behalf of Licensor and Licensee by their respective duly authorized representatives. This Agreement may be executed by facsimile signature and in two or more counterparts, all of which taken together will constitute one and the same agreement.

                15.5         “Savings Clause” If any provision of this Agreement is prohibited by law or held to be unenforceable, the remaining provisions hereof shall not be affected, and this Agreement shall continue in full force and effect as if such unenforceable provision had never constituted a part hereof, and the unenforceable provision shall be automatically amended so as best to accomplish the objectives of such unenforceable provision within the limits of applicable law.

                15.6         “Relationship of the Parties” Nothing in this Agreement will be construed to constitute either party as the agent, employee or representative of the other party and no joint venture or partnership will be created hereby. Neither party will make or have the power or authority to act for, bind or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.

                15.7         “No Waiver” No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

                15.8         “Force Majeure” Neither party hereto shall be responsible for any failure to perform its obligations under this Agreement (other than payment and confidentiality obligations under Section 11 above) if such failure is caused by acts of God, war, strikes, revolutions, lack or failure of transportation facilities, failure of telecommunications suppliers, fire, laws or governmental regulations or other causes which are beyond the reasonable control of such party.


                15.9         “Section Headings” The section headings used in this Agreement and the attached Exhibits are intended for convenience only and shall not be deemed to supersede or modify any provisions.

                15.10       “Compliance with Export Laws” Licensee shall comply with all applicable export laws, restrictions and regulations of any United States or foreign agency or authority. Licensee agrees that it shall not export or re-export, or allow the export or re-export or any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such laws, restrictions or regulations. Licensee agrees to defend Licensor against, and indemnify and hold Licensor harmless from any claims, demands, suits or actions arising out of or related to Licensee’s breach of this Section 15.10 in the same manner as provided in Section 10.1 above.


                15.12       “Non-Solicitation” Each party acknowledges the highly competitive nature of the other party’s business and, accordingly, agrees that it shall not, until the earlier of (i) two years after termination of this Agreement, (ii) such time as one of the party discontinues its operations, or (iii) a Release Condition (as defined in the Escrow Agreement) occurs, solicit, hire or otherwise employ, directly or indirectly, any officer, director, or employee of the other party without such other party’s prior written consent. The parties agree that the limitations as to time, geographical area, and scope of activity to be restrained by this subsection are reasonable and acceptable to the parties, and do not impose any greater restraint than is reasonably necessary to protect the goodwill and other business interests of the parties. To the extent a court of competent jurisdiction determines that language set forth in this subsection does not comply with applicable law of the governing jurisdiction, this paragraph may be reformed by the court and enforced to the maximum extent permitted by law.

15.13  “Transition Services” Upon termination or expiration of this Agreement for any reason, Licensee shall be entitled to continue to use and Licensor shall continue to provide the Licensed Technology then being provided for a minimum of fifteen (15) months after such termination or expiration (the “Transition Period”), on the same terms as set forth herein.

*       *       *

IN WITNESS WHEREOF, the undersigned authorized representatives of the parties have executed this Agreement or have caused this Agreement to be executed on their behalf, as of the Effective Date.

Licensor: Express Digital Graphics, Inc.   Licensee: CPI Corp.
By:      /s/   Graham McFarland    By:      /s/  Gary W. Douglass
          Graham McFarland              Gary W. Douglass
          President and             Chief Financial Officer
          Chief Executive Officer    
Date:  March 30, 2005    Date:  March 29, 2005
Address for notices:   Address for notices:
Express Digital Graphics, Inc.   CPI Corp.
9780 Mt. Pyramid Ct., Suite 120   1706 Washington Avenue
Englewood, CO  80112    St. Louis, MO 63119
Attn: Graham McFarland   Attn: Chief Information Officer
      With a copy to: General Counsel


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