BY THE PARTIES AND
SHALL PROMPTLY RENDER A WRITTEN OPINION AND AWARD.
(C)
THE ARBITRATORS MAY NOT AWARD OR ASSESS PUNITIVE DAMAGES AGAINST
EITHER PARTY.
(D)
EACH PARTY SHALL BEAR ITS OWN COSTS AND EXPENSES OF THE
ARBITRATION AND ONE-HALF (1/2) OF THE FEES AND COSTS OF THE ARBITRATORS, SUBJECT
TO THE POWER OF THE ARBITRATORS, IN THEIR SOLE DISCRETION, TO AWARD ALL SUCH
REASONABLE COSTS, EXPENSES AND FEES TO THE PREVAILING PARTY.
19.
MISCELLANEOUS
19.1.
ESCROW AGREEMENT.
THE PARTIES SHALL EXECUTE AN ESCROW AGREEMENT IN
THE FORM OF EXHIBIT 19.1, SUBJECT TO ANY VARIATION REQUIRED BY THE ESCROW AGENT,
AND VTAL WILL PLACE SOURCE CODE FOR THE APPLIANCE IN THE ESCROW CREATED THEREBY,
ALL WITHIN TWENTY (20) BUSINESS DAYS OF THE APPLIANCE COMMERCIAL AVAILABILITY
DATE.
IN THE EVENT AND FROM THE TIME THAT EZEM PROPERLY OBTAINS SUCH SOURCE
CODE FROM THE ESCROW, VTAL GRANTS TO EZEM AND EZEM ACCEPTS A RESTRICTED
NON-EXCLUSIVE LICENSE, WITHOUT RIGHT TO SUBLICENSE, FOR EZEM, OR A THIRD PARTY
DESIGNATED BY EZEM SUBJECT TO (I) VTAL'S CONSENT TO THE SELECTION OF SUCH THIRD
PARTY, WHICH CONSENT MAY NOT BE UNREASONABLY WITHHELD AND (II) SUCH THIRD PARTY
AGREEING ON TERMS REASONABLY SATISFACTORY TO VTAL AS TO SUCH MATTERS AS
MAINTENANCE OF THE CONFIDENTIALITY OF THE SOURCE CODE, TO USE SUCH SOURCE CODE
SOLELY FOR THE MAINTENANCE AND SUPPORT OF APPLIANCES LICENSED BY VTAL AS
CONTEMPLATE BY THIS AGREEMENT TO THE EXTENT THAT VTAL OR ITS SUCCESSORS ARE
UNABLE AND UNWILLING TO DO SO FOR A COMMERCIALLY REASONABLE FEE AND WITHIN A
COMMERCIALLY REASONABLE TIMEFRAME.
SUCH SOURCE CODE WILL NOT BE DISCLOSED TO
ANY PERSON WHO IS NOT EMPLOYED BY EZEM OR ONE OF ITS AFFILIATES, AND CONSISTENT
WITH THE FOREGOING, EZEM SHALL PROTECT SUCH SOURCE CODE AS CONFIDENTIAL
INFORMATION OF VTAL IN THE MANNER SPECIFIED IN ARTICLE 13.
THE PARTIES AGREE TO
TERMINATE THE ESCROW AGREEMENT BY MUTUAL WRITTEN CONSENT IN THE EVENT THAT THIS
AGREEMENT IS TERMINATED FOR ANY REASON WHICH IS NOT A RELEASE CONDITION AS
DEFINED IN THE ESCROW AGREEMENT.
19.2.
RELATIONSHIP.
THIS AGREEMENT DOES NOT MAKE EITHER PARTY THE
EMPLOYEE, AGENT OR LEGAL REPRESENTATIVE OF THE OTHER FOR ANY PURPOSES
WHATSOEVER.
NEITHER PARTY IS GRANTED ANY RIGHT OR AUTHORITY TO ASSUME OR TO
CREATE ANY OBLIGATION OR RESPONSIBILITY, EXPRESS OR IMPLIED, ON BEHALF OF OR IN
THE NAME OF THE OTHER PARTY.
EACH PARTY IS ACTING AS AN INDEPENDENT CONTRACTOR.
19.3.
ASSIGNMENT.
NEITHER THIS AGREEMENT NOR ANY RIGHT OR OBLIGATION
ARISING HEREUNDER MAY BE ASSIGNED BY ANY PARTY HERETO, IN WHOLE OR IN PART,
WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OTHER PARTY HERETO, WHICH MAY BE
WITHHELD IN THE ABSOLUTE DISCRETION OF SUCH OTHER PARTY, AND ANY ATTEMPTED
ASSIGNMENT IN VIOLATION OF THE TERMS HEREOF WILL BE NULL AND VOID AND OF NO
FORCE OR EFFECT; PROVIDED, HOWEVER, THAT NO SUCH CONSENT SHALL BE REQUIRED FOR
ASSIGNMENT, IN WHOLE OR IN PART, IN CONNECTION WITH ANY MERGER OR SALE OF ALL OR
SUBSTANTIALLY ALL OF THE ASSETS OF THE ASSIGNING PARTY,