MANUFACTURING and CONSULTING SERVICES AGREEMENT
THIS Manufacturing and Consulting Agreement ("Agreement") is made
and entered into by and between ▇▇▇▇▇▇▇▇ TECHNOLOGIES INTERNATIONAL,
INC., a Texas corporation having its principal office at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ("▇▇▇▇▇▇▇▇ Technologies"), and ▇▇▇▇▇▇
▇▇▇▇▇▇ MARKETING CORPORATION, a corporation having its principal office
at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. ("▇▇▇▇▇▇ ▇▇▇▇▇▇").
This Agreement states the terms and conditions which shall govern the
manufacture by ▇▇▇▇▇▇▇▇ Technologies and the purchase by ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
certain models of its uniView Set-top Units ("Product"), and which shall
govern consultation provided by ▇▇▇▇▇▇▇▇ Technologies on the overall
Product project (the "uniView Project").
1. Services Provided
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ will design and develop the Product.
(b) ▇▇▇▇▇▇▇▇ Technologies will manufacture and deliver to ▇▇▇▇▇▇ ▇▇▇▇▇▇,
certain models of the Product, on a contract basis as evidenced by
periodic purchase orders.
(c) Pursuant to the consulting agreement outlined below, ▇▇▇▇▇▇ ▇▇▇▇▇▇
may obtain ▇▇▇▇▇▇▇▇ Technologies' advice concerning overall management
and coordination of the uniView Project.
2. Definitions: The following definitions shall apply for all purposes
of this Agreement:
(a) "Critical Defect" shall mean a defect that has caused or is
reasonably likely to cause a significant injury to persons or to property
because of a hazardous or unsafe condition to individuals using or
maintaining the Product.
(b) "Major Defect" shall mean a defect other than Critical Defect that
renders the Product unusable or significantly reduces the reliability or
quality of performance.
(c) "Minor Defect" shall mean a defect that is neither a Critical Defect
nor a Major Defect which is not likely to materially reduce the usability
of the Product, but does result in some slight deterioration in quality
or appearance.
(d) "Shipment" shall mean finished Product which is or may be delivered
at one time to ▇▇▇▇▇▇ ▇▇▇▇▇▇ or its designee.
(e) "uniView" shall mean the ▇▇▇▇▇▇ ▇▇▇▇▇▇ trademark associated with the
functionality of a universal communication appliance with the capability
of making the television set the information and entertainment center for
the household, the features of which include, without limitation, access
to the Internet, telephony, e-mail, and fax capabilities, as well as
enhanced interaction between the owner and television programming. This
functionality is provided to the owner by a stand alone set-top unit (the
Product covered by Part 1 of this Agreement) or through such an appliance
built into a television set, and by Internet support services (the
"Backroom") delivered through connection of the appliance to a ▇▇▇▇▇▇
▇▇▇▇▇▇ Internet Service Provider (ISP) network.
(f) "uniView Project" shall mean the combination of all of the
activities necessary to bring uniView to market.
Part 1: Product Manufacturing
3. Quantity and Orders:
(a) ▇▇▇▇▇▇▇▇ Technologies agrees to manufacture, according to ▇▇▇▇▇▇
▇▇▇▇▇▇' specifications, units of Product, the quantity of which shall be
determined by each duly executed purchase order ("Purchase Orders"), for
▇▇▇▇▇▇ ▇▇▇▇▇▇ according to the following standards: 0.0% Critical Defect
(safety) Acceptable Quality Level (AQL), 1.5% Major Defect AQL, and 4.0%
Minor Defect AQL, tested in accordance with the sampling procedures in
MIL ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇.
(b) ▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees to pre-purchase the inventory required to
produce the Product at such time and under such terms as the parties may
mutually agree.
(c) Purchase and delivery of Product shall be made pursuant to separate
purchase orders issued to ▇▇▇▇▇▇▇▇ Technologies by ▇▇▇▇▇▇ ▇▇▇▇▇▇. Each
purchase order shall be non-cancelable except as described in paragraph
(d) of Article 11 hereof, shall be in writing and shall indicate the
price, quantities, shipping schedules and such other terms of sale as may
be mutually agreed ("Purchase Orders"), and shall be effective only upon
written acceptance by ▇▇▇▇▇▇▇▇ Technologies.
(d) Unless the parties otherwise agree in writing, ▇▇▇▇▇▇ ▇▇▇▇▇▇ agrees
to provide, at least sixty (60) days prior to each month-end delivery
date, (the "Proposed Delivery Date"), a by-model, by-month estimate of
anticipated orders for the ensuing 12-month delivery period (the
"Forecast").
4. Production Unit Prices: Production unit prices will be based on
actual material costs plus mutually negotiated material overhead rates
and labor rates per unit, all as evidenced by each written Purchase Order
signed by the parties. Payment on production units shall be due ten (10)
days after receipt of invoices by ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be
responsible for pre-payment of agreed material liabilities. Invoices of
finished Product will be net of prepaid material costs and negotiated
prepaid overhead.
5. Shipment and Delivery:
(a) ▇▇▇▇▇▇ ▇▇▇▇▇▇ and its designated consultants will provide
information to ▇▇▇▇▇▇▇▇ Technologies, including specifications, bills of
material, and schematics, which will enable ▇▇▇▇▇▇▇▇ Technologies to make
reasonable efforts to strive for the best possible Delivery Date for
Product, based on the date of receipt of final design, specifications,
and bills of material.
(b) The final production and delivery schedule for Product will be
determined by mutual agreement of the parties upon finalization of the
Product design, as evidenced by a Purchase Order.
(c) All sales of Product shall be FOB ▇▇▇▇▇▇▇▇ Technologies' warehouse
and ▇▇▇▇▇▇ ▇▇▇▇▇▇ will make all freight arrangements.
(d) ▇▇▇▇▇▇▇▇ Technologies shall exercise reasonable commercial efforts
to have available for ▇▇▇▇▇▇ ▇▇▇▇▇▇ on or before each Proposed Delivery
Date the Product specified in the Purchase Order for such delivery date.
(e) ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall use reasonable commercial efforts to ship or
take delivery of such finished Product on or about the Proposed Delivery
Date.
6. Paragraph deleted.
7. Serialization and Labeling: ▇▇▇▇▇▇▇▇ Technologies shall apply to
each Product manufactured under this Agreement the ▇▇▇▇▇▇ ▇▇▇▇▇▇' brand
name, model number designated by ▇▇▇▇▇▇ ▇▇▇▇▇▇, serial number and F.C.C.
identifier, as coordinated between the parties. ▇▇▇▇▇▇▇▇ Technologies
shall also apply to all applicable shipping cartons, a label indicating
the ▇▇▇▇▇▇ ▇▇▇▇▇▇' brand name, model number, serial number and other
pertinent information. The serial number will be such as will enable
determination of the actual date of production of each unit. Each
shipping invoice shall contain the serial numbers for the finished
Product shipped under that invoice.
8. Printed Materials: All printed materials, including, without
limitation, the Product Operator's Manual and Warranty Materials, shall
be prepared by ▇▇▇▇▇▇ ▇▇▇▇▇▇ or at its direction and timely provided to
▇▇▇▇▇▇▇▇ Technologies in sufficient quantities to be packed in the carton
with each unit of the Product.
9. Trademarks: No proprietary or other rights with respect to the
trademarks, trade names or brand names of either party is conferred upon
the other party by this Agreement, either expressly or by implication.
10. Product Liability:
(a) Insurance: Effective at the first delivery of Product under this
agreement, each party shall obtain and maintain, at its own expense,
product liability insurance in a responsible insurance company or
companies licensed to do business in the State of Texas and rated A+XII
or better in Best's Insurance Guide, with broad form vendor's endorsement
naming the other party as additional insured, with a combined single
limit (including bodily injury and/or property damage) in at least the
amount of $1,000,000 each occurrence/$2,000,000 aggregate with each
policy naming the other party as a co-insured. Insurance obtained by
▇▇▇▇▇▇▇▇ Technologies shall cover manufacturing defects in the Product;
all Product design defects shall be covered by insurance obtained by
▇▇▇▇▇▇ ▇▇▇▇▇▇. Evidence of renewals, changes, or termination of product
liability insurance will require ten (10) days written notice to the
other party. Each party shall timely furnish the other with certificates
of insurance and evidence of renewals. This provision in no way modifies
either parties' obligation to indemnify the other as set forth hereunder.
(b) Indemnification:
(1) ▇▇▇▇▇▇▇▇ Technologies shall indemnify and hold harmless ▇▇▇▇▇▇
▇▇▇▇▇▇ against any and all causes of action, claims, demands,
losses, expenses, damages and judgments incurred (a) as a result of
a workmanship defect in the Product, made by ▇▇▇▇▇▇▇▇ Technologies,
and (b) as a result of injury or death to any person or damage to
any property which results or is alleged to have resulted from
defective workmanship in the Product or the use or servicing of the
Product by ▇▇▇▇▇▇ ▇▇▇▇▇▇ in accordance with ▇▇▇▇▇▇▇▇ Technologies'
instructions. ▇▇▇▇▇▇▇▇ Technologies shall be responsible for the
defense of all such actions, causes, claims and demands as well as
any resulting expenses, damages and judgments. ▇▇▇▇▇▇ ▇▇▇▇▇▇, at
its option, shall have the right to jointly defend such cause of
actions, claims and demands and to participate in the settlement of
the same. ▇▇▇▇▇▇ ▇▇▇▇▇▇ will cooperate with all reasonable requests
relating to the defense of the same and ▇▇▇▇▇▇▇▇ Technologies will
not allow any consent judgment entered against ▇▇▇▇▇▇ ▇▇▇▇▇▇ without
prior written consent. ▇▇▇▇▇▇▇▇ Technologies shall keep ▇▇▇▇▇▇
▇▇▇▇▇▇ fully apprised of the current status of each cause of action,
claim or demand upon ▇▇▇▇▇▇ ▇▇▇▇▇▇' request.
(2) ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall indemnify and hold harmless ▇▇▇▇▇▇▇▇
Technologies against any and all third party causes of action,
claims, demands, losses, expenses, damages and judgments incurred
(a) as a result of any design defects in the Product, and (b) as a
result of injury or death to any person or damage to any property
which results or is alleged to have resulted from defective design
in the Product or the use or the installation or the servicing of
the Product by ▇▇▇▇▇▇ ▇▇▇▇▇▇ independent of ▇▇▇▇▇▇▇▇ Technologies.
▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be responsible for the defense of all such
actions, causes, claims and demands as well as the expenses, damages
and judgments. ▇▇▇▇▇▇▇▇ Technologies, at its option, shall have the
right to jointly defend such cause of actions, claims and demands
and to participate in the settlement of the same. ▇▇▇▇▇▇▇▇
Technologies will cooperate with all reasonable requests relating to
the defense of the same and ▇▇▇▇▇▇▇▇ Technologies will not allow any
consent judgment entered against ▇▇▇▇▇▇▇▇ Technologies without prior
written consent. ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall keep ▇▇▇▇▇▇▇▇ Technologies
fully apprised of the current status of each cause of action, claim
or demand upon ▇▇▇▇▇▇▇▇ Technologies' request.
(c) Patent Indemnity: Each party represents and warrants that it has
the authority to use any patented property used in the manufacture of the
Product. Each party shall defend at its own expense, any suit or
proceeding brought against the other so far as based on a claim that any
goods, or the normal use thereof, furnished under this Agreement
constitute any infringement of any patent of the United States or any
foreign country, if such patent is provided by such indemnitor party, and
if such indemnitor party is notified promptly in writing and given
authority, information and assistance for the defense of same, and such
indemnitor party shall pay all damages and costs awarded therein against
the other party.
11. Incoming Inspection:
(a) If any Shipment of Product inspected hereunder does not meet the
standard of 0.0% Critical Defect (safety) Acceptable Quality Level
("AQL"), 1.5% Major Defect AQL, and 4.0% Minor Defect AQL in accordance
with the sampling procedures in MIL STD 105 Level II, ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall
notify ▇▇▇▇▇▇▇▇ Technologies within seven (7) days after the completion
of its inspection of its rejection of the units of Product comprising the
inspected Shipment. Said inspection shall be completed within twenty-one
(21) days after arrival at ▇▇▇▇▇▇ ▇▇▇▇▇▇' designated location.
(b) Within fifteen (15) days of receipt of ▇▇▇▇▇▇ ▇▇▇▇▇▇' notice of
rejection of such units by reason of their defects, and after ▇▇▇▇▇▇▇▇
Technologies has had an opportunity to inspect the Product Shipment to
verify the defects, ▇▇▇▇▇▇▇▇ Technologies shall, at its sole option and
election, advise ▇▇▇▇▇▇ ▇▇▇▇▇▇ that it will: (i) repair the units within
thirty (30) days of notice, at ▇▇▇▇▇▇▇▇ Technologies' expense, at the
place designated by mutual agreement of both parties, subject to the
availability of parts, or (ii) reimburse ▇▇▇▇▇▇ ▇▇▇▇▇▇ its reasonable,
actual cost to repair said units, provided, however, said reimbursement
shall not exceed the unit price of Product, or (iii) accept return and
replacement of the units, pursuant to a Return Material Authorization
("RMA") issued by ▇▇▇▇▇▇▇▇ Technologies, at ▇▇▇▇▇▇▇▇ Technologies'
expense.
(c) If, after notice of rejection and ▇▇▇▇▇▇▇▇ Technologies' opportunity
to inspect, the parties agree that a Shipment contains a Critical Defect,
it may be returned to ▇▇▇▇▇▇▇▇ Technologies at ▇▇▇▇▇▇▇▇ Technologies'
expense. ▇▇▇▇▇▇▇▇ Technologies shall then repair such Critical Defect,
and deliver the Product freight prepaid to ▇▇▇▇▇▇ ▇▇▇▇▇▇ within thirty
(30) days from receipt of such returned Product.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇, without cost, has the right to terminate this
Agreement by sending a sixty (60) days prior written notice, except for
Product already delivered and accepted, as well as such Product, raw
materials and parts as mentioned hereinbelow, in the event defective
Product in three (3) consecutive Shipments exceeds the Critical Defect or
Major Defect AQL provided hereinabove. Paragraph (b) and (c) of Article
26 hereof shall apply to such termination.
12. Epidemic Failure and Warranty: In the event that units of a
particular Product model containing the same Critical Defect or Major
Defect in workmanship discovered within eighteen (18) months of the date
of manufacture shall exceed three percent (3%) of the total of such
Product manufactured within a particular calendar year, ▇▇▇▇▇▇▇▇
Technologies shall, at its sole option, remedy such defects, by: (1)
repairing such units, (2) replacing such units, (3) crediting ▇▇▇▇▇▇
▇▇▇▇▇▇ for such units at the contract unit price, or (4) reimbursing
▇▇▇▇▇▇ ▇▇▇▇▇▇ for its reasonable expense including labor and materials in
correcting such defect. ▇▇▇▇▇▇▇▇ Technologies reserves the right to
inspect allegedly defective Product. ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall notify ▇▇▇▇▇▇▇▇
Technologies of any claim of such Critical Defect or Major Defect within
thirty (30) days after discovery of such part or component in the same
application.
13. Servicing and Spare Parts:
(a) Servicing for Product shall be the responsibility of ▇▇▇▇▇▇ ▇▇▇▇▇▇,
except in circumstances set out in Article 11 above (Incoming Shipment
Rejection).
(b) Spare parts for Product will be supplied to ▇▇▇▇▇▇ ▇▇▇▇▇▇ on a
commercial basis according to ▇▇▇▇▇▇ ▇▇▇▇▇▇' written Purchase Order.
Complete and current spare parts lists, including prices, as identified
in a ▇▇▇▇ of materials, will be furnished to ▇▇▇▇▇▇ ▇▇▇▇▇▇ (i) prior to
the first delivery of Product, and (ii) periodically, as such lists are
updated. Payment for spare parts shall be made in accordance with
Article 4 hereof. Price of spare parts shall be FOB ▇▇▇▇▇▇▇▇
Technologies' dock.
(c) All spare parts for Product remaining on hand after the date of the
last delivery of Product to ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall belong to ▇▇▇▇▇▇ ▇▇▇▇▇▇
if all of ▇▇▇▇▇▇▇▇ Technologies' invoices with respect to such parts have
been paid. Such parts shall include, without limitation, electrical
parts, cosmetic parts, assembled parts such as printed circuit board and
mechanism parts, and parts exclusively needed for Product.
14. Governmental Regulations: ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall, with the assistance
of ▇▇▇▇▇▇▇▇ Technologies, ensure that all Product complies with all
applicable United States federal, state and local governmental
requirements including, without limitation, the requirements of the
Federal Communications Commission ("FCC"), Department of Health and Human
Services ("DHHS"), and Underwriters Laboratories ("UL") if elected,
and/or any applicable association certification on all Product for which
standards for sales operation, consumption and performance guidelines
have been established.
15. Changes: The parties may mutually agree upon commercially
reasonable changes in Product specifications at any time in order to
improve reliability, quality or safety, or to comply with applicable
laws, or to adapt to changes in materials or component sources and any
such change shall be reflected in a duly executed Purchase Order.
Part 2: Consulting Services
16. Consulting Services: ▇▇▇▇▇▇▇▇ Technologies agrees to act as a
consultant and to advise ▇▇▇▇▇▇ ▇▇▇▇▇▇ with respect to the coordination
of services provided to the uniView Project by any other third parties,
including without limitation, coordination with Acorn, negotiating
technical impacts upon feasibility and functionality of the Product, and
other services as provided in Exhibit "A" attached hereto.
17. Time of Essence: Both Parties acknowledge and agree that time is of
the essence in the timely introduction of uniView to market. Each party
has agreed to use commercially reasonable efforts to deliver the
necessary services required to complete the Product.
18. Compensation and Expenses: ▇▇▇▇▇▇▇▇ Technologies shall be paid in
accordance with the rate and in the manner reflected in previous invoices
which have been submitted to, and paid by, ▇▇▇▇▇▇ ▇▇▇▇▇▇ for all
consulting services rendered and expenses incurred prior to the execution
of this Agreement. All payments received by ▇▇▇▇▇▇▇▇ Technologies prior
to the execution of this Agreement have been for consulting services
only.
19. Equipment: Except for services that must be performed on or with
▇▇▇▇▇▇ ▇▇▇▇▇▇' equipment, ▇▇▇▇▇▇▇▇ Technologies shall provide the
equipment used in performing the services described in this Agreement
20. Communication and Reports: Communication may be written or oral
between ▇▇▇▇▇▇▇▇ Technologies' representatives, ▇▇▇▇▇▇ ▇▇▇▇▇▇'
representatives, and any other third party contributing to the uniView
Project. ▇▇▇▇▇▇▇▇ Technologies shall have access to and the authority to
communicate with all other third parties contributing to the uniView
Project. On ▇▇▇▇▇▇ ▇▇▇▇▇▇' request, ▇▇▇▇▇▇▇▇ Technologies shall prepare
any reports or other written documents that are reasonable or mutually
agreed upon.
21. Meetings: ▇▇▇▇▇▇▇▇ Technologies and ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall attend
weekly program review meetings as may be mutually agreed and scheduled.
22. Noncompetition: ▇▇▇▇▇▇▇▇ Technologies agrees that, during the term
of this Agreement, ▇▇▇▇▇▇▇▇ Technologies shall not engage or participate
in any competitive consulting activity relating to uniView, either
directly or indirectly, as an employee, employer, consultant, agent,
principal, partner, stockholder, corporate officer, director, or in any
other individual or representative capacity.
23. Ownership of Patent, Design, and Copyright:
(a) With respect to all consulting services in connection with uniView
and pursuant to this Agreement, ▇▇▇▇▇▇▇▇ Technologies makes no claim to
(i) all intellectual property including, without limitation, all ideas
and concepts contained in computer programs and software, documentation
or other literature or illustrations that are conceived, developed,
written, or contributed by ▇▇▇▇▇▇▇▇ Technologies; (ii) all rights in all
works prepared by ▇▇▇▇▇▇▇▇ Technologies, including patent rights and
copyrights applicable to any of the intellectual property described
above, which shall constitute "works made for hire" for purposes of
copyright law; (iii) any and all Inventions made, developed, perfected,
devised, conceived or reduced to practice by ▇▇▇▇▇▇▇▇ Technologies as a
result of the consulting services performed by ▇▇▇▇▇▇▇▇ Technologies in
connection with uniView and pursuant to this Agreement; and (iv) any and
all original works of authorship (and all copyrights therein) created by
▇▇▇▇▇▇▇▇ Technologies as a result of the consulting services performed by
▇▇▇▇▇▇▇▇ Technologies in connection with uniView pursuant to this
Agreement.
(b) ▇▇▇▇▇▇▇▇ Technologies agrees that any and all of the intellectual
property described above ("Intellectual Property") is the sole property
of ▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇▇ Technologies hereby assigns and agrees to
assign to ▇▇▇▇▇▇ ▇▇▇▇▇▇, its successors and assigns, any and all of
▇▇▇▇▇▇▇▇ Technologies right, title, and interest in and to any and all
such Intellectual Property. ▇▇▇▇▇▇▇▇ Technologies will, at any time
during the term of this Agreement or thereafter, upon reasonable request
and without further compensation therefor, but at no expense to ▇▇▇▇▇▇▇▇
Technologies, do all lawful acts reasonably required by ▇▇▇▇▇▇ ▇▇▇▇▇▇,
including the execution of papers and oaths and the giving of testimony,
that in the reasonable opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇, its successors and
assigns, may be necessary or desirable to assign any claim of ownership
in the Intellectual Property to ▇▇▇▇▇▇ ▇▇▇▇▇▇.
(c) ▇▇▇▇▇▇▇▇ Technologies shall ensure that each and every one of its
representatives, employees, and agents have signed and are bound by a
separate agreement containing provisions substantially similar to, and
consistent with, those contained hereinabove and contained in the
Confidentiality and Nondisclosure Agreement between the parties dated
October 21, 1996 concerning access to and the treatment of confidential
information, as defined therein, and concerning ownership and assignment
of work products, inventions, and original works of authorship created by
▇▇▇▇▇▇▇▇ Technologies in connection with the performance of ▇▇▇▇▇▇▇▇
Technologies' duties pursuant to this Agreement or any other agreement
with ▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇ Technologies shall timely ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ with copies of such signed agreements upon request.
24. Use of Copyrighted Materials: Each party hereto warrants to the
other that any materials provided by one party for use by the other party
pursuant to this Agreement shall not contain any proprietary material
owned by any third party that is protected under the Copyright Act or any
other similar law. Each party shall be solely responsible for ensuring
that any materials it provides pursuant to this Agreement satisfy this
requirement and each party hereto agrees to hold the other party harmless
from all liability or loss to which such other party is exposed on
account of such parties' failure to perform this duty.
General Conditions
25. Term: This Agreement shall be deemed to be effective as of December
6, 1996 and shall remain in effect until the earlier of (a) termination
by either party according to the terms hereof, or (b) fulfillment of the
purposes of this Agreement; provided that, with respect to Product
ordered during the term hereof, the provisions of this Agreement shall
govern.
26. Termination:
(a) This Agreement may be terminated by either party upon written notice
to the other (i) in the event of a breach by the other party of any
material term, condition or warranty of this Agreement and the failure to
cure said breach within thirty (30) days after written notice thereof or
within such other time as may be set forth in this Agreement, except that
in the case of nonpayment by ▇▇▇▇▇▇ ▇▇▇▇▇▇ of any amounts owed to
▇▇▇▇▇▇▇▇ Technologies hereunder, (whether an invoice for Product, pre-
payment of materials, or otherwise) such breach must be cured within
twenty-one (21) days after written notice thereof; or (ii) at any time
upon or after the filing by the other party of a petition in bankruptcy
on insolvency, or upon or after any adjudication that the other party is
insolvent, or after the filing by the other party of any petition or
answer seeking reorganization, readjustment or arrangement of the
business of the other party under any law relating to bankruptcy or
insolvency, or upon or after the appointment of a receiver for all or
substantially all the property of the other party, or upon or after the
making by the other party of any assignment or attempted assignment for
the benefit of creditors, or upon or after the institution of any
proceedings for the liquidation or winding up of the other party's
business or for the termination of its corporate charter, or upon or
after the making of any petition in bankruptcy, insolvency or for
reorganization filed against said other party and not removed within
ninety (90) days thereafter.
(b) The termination or expiration of this Agreement shall not affect or
impair the rights and obligations of either party regarding Product which
is subject to a valid Purchase Order, nor relieve any party of any
obligation or liability accrued under this Agreement prior to such
termination or expiration; nor affect or impair the rights of either
party arising under this Agreement prior to such termination or
expiration.
(c) In the event of a breach of this agreement and failure timely to
cure as provided above, Purchase Orders accepted but not yet executed at
the time of such termination may be canceled by either party,
notwithstanding Article 3 hereof. However, if ▇▇▇▇▇▇▇▇ Technologies
possesses finished Product manufactured under such Purchase Orders, at
the time of such termination, ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall accept and purchase
such finished Product. ▇▇▇▇▇▇▇▇ Technologies shall make an outgoing
inspection and confirm no Critical Defect or Major Defect before delivery
of such finished Product. ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall further accept and
purchase all raw materials and parts which are to be exclusively used for
Product for ▇▇▇▇▇▇ ▇▇▇▇▇▇ and which ▇▇▇▇▇▇▇▇ Technologies has, at the
time of such termination, already arranged for procurement in accordance
with ▇▇▇▇▇▇ ▇▇▇▇▇▇' outstanding Purchase Orders. ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall
have no other liability to ▇▇▇▇▇▇▇▇ Technologies, and in particular
▇▇▇▇▇▇ ▇▇▇▇▇▇ shall not be liable for lost profits, overhead, incidental
or consequential damages.
27. Independent Contractor: ▇▇▇▇▇▇▇▇ Technologies shall perform its
duties under this Agreement as an independent contractor. ▇▇▇▇▇▇▇▇
Technologies is not to be deemed an employee of ▇▇▇▇▇▇ ▇▇▇▇▇▇, and shall
not have or claim any right arising from employee status. ▇▇▇▇▇▇▇▇
Technologies has the sole discretion to determine the manner in which the
consultation services are to be performed. However, ▇▇▇▇▇▇ ▇▇▇▇▇▇
retains the right to exercise final judgment with respect to the ultimate
development of the uniView Project and has responsibility for such
development.
28. Force Majeure: Neither ▇▇▇▇▇▇▇▇ Technologies nor ▇▇▇▇▇▇ ▇▇▇▇▇▇
shall be liable for delay or failure in the performance of its
obligations under this Agreement arising from any of the following
events: (i) fire, flood, earthquake, explosion or other similar or
dissimilar act of God, strikes, lockouts, picketing and other labor
disturbances, war (declared or undeclared) or other matter beyond the
reasonable control of the party claiming benefit under this Article; or
(ii) an act of governmental or quasi-governmental authorities or the
United States or any political subdivision, department or agency thereof,
or regulations or restrictions of law or of a court of competent
jurisdiction; provided, however, that the party claiming benefit hereof
shall resume performance promptly upon the removal of the cause for
delay, and provided, further, that said party shall notify the other
party promptly of the occurrence of said cause.
29. Notices: All notices required or permitted hereunder shall be in
writing and shall be deemed duly given when personally delivered or sent
by certified mail, return receipt requested, or by telecopy facsimile,
immediately confirmed by letter posted as aforesaid, as follows:
To ▇▇▇▇▇▇ ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Marketing Corporation
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇, Vice President, Chief Operating Officer
To ▇▇▇▇▇▇▇▇ Technologies: ▇▇▇▇▇▇▇▇ Technologies International, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇, Operations/Contracts Manager
and to the attorney for each party in respect of notices of breach of
this Agreement, as follows:
▇▇▇▇▇▇▇▇ Technologies': ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Oaks, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Marketing Corporation: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General Counsel
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
or to such other address as either party or its attorney may hereafter
designate in writing by like notice.
30. Entire Agreement, Amendments, and Modification: Except for the
Confidentiality and Nondisclosure Agreement between the parties dated
October 21, 1996, and the consulting services currently being performed
by ▇▇▇▇▇▇▇▇ Technologies (including but not limited to the services
identified in the attached Exhibit A) which shall remain in full force
and effect, this Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and supersedes all
previous agreements or understandings made or had by the parties. No
addition to, deletion from, or modification of any of the provisions of
this Agreement shall be binding upon the parties unless it is made in
writing, references this Agreement and is signed by both parties. Both
parties agree however, upon request of the other party, to review the
financial, technical, and schedule status of the Product supply portion
of this Agreement and to make such adjustments as may be required in good
faith to accomplish the purposes of this Agreement.
31. Applicable Law: This Agreement shall be governed by and construed
in accordance with the laws of the State of Texas.
32. Delays and Waivers: All waivers under this Agreement shall be in
writing. The delay or omission by ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ Technologies
in exercising any right or remedy hereunder shall not be a waiver thereof
or of any other right or remedy in the future. All rights and remedies
of ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Technologies under and pursuant to this
Agreement are cumulative.
33. Secrecy: ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Technologies agree that the
timing and content of any release of information to the public or
other third parties with respect to this Agreement shall be only as
mutually agreed in writing between the parties. ▇▇▇▇▇▇▇▇ Technologies
hereby designates ▇▇▇▇▇ ▇▇▇▇▇▇ as its representative to address all
inquiries from third parties concerning this Agreement. ▇▇▇▇▇▇ ▇▇▇▇▇▇
hereby designates ▇▇▇▇ ▇. ▇▇▇▇ as its representative to address all
inquiries from third parties concerning this Agreement.
IN WITNESS WHEREOF, each party hereto has caused this Agreement to
be executed by its duly authorized officer or representative to be
effective as of December 6, 1996.
▇▇▇▇▇▇ ▇▇▇▇▇▇ MARKETING CORPORATION
By:___/s/ ▇▇▇▇ Park________________________
▇▇▇▇ ▇▇▇▇, Vice President
Chief Operating Officer
▇▇▇▇▇▇▇▇ TECHNOLOGIES INTERNATIONAL, INC.
By:____/s/ ▇▇▇▇▇ LaCava__________________
▇▇▇▇▇ ▇▇▇▇▇▇
Operations/Contract Manager
Exhibit "A"
Consulting Services:
Consumer Electronics Show - ▇▇▇▇▇▇▇▇ Technologies will provide
technical support in preparation for the consumer electronics show in
January 1997. This will consist of preparation of product, both
television and set-top box, and actual booth setup and support at the
show.
Other Trade Shows - ▇▇▇▇▇▇▇▇ Technologies will provide technical
support as required by ▇▇▇▇▇▇ ▇▇▇▇▇▇ at other trade shows during the term
of this agreement.
Design/Program Management - ▇▇▇▇▇▇▇▇ Technologies will provide
technical interface and communications between various subcontractors
involved in the hardware design. ▇▇▇▇▇▇▇▇ Technologies will deal
directly with other ▇▇▇▇▇▇ ▇▇▇▇▇▇ subcontractors as required to work
producibility issues.
Backbone Hardware Design and Installation - ▇▇▇▇▇▇▇▇ Technologies
will provide independent verification and validation of the backbone
hardware design and installation.
uniView Specification - ▇▇▇▇▇▇▇▇ Technologies will draft a
specification for the uniView product. ▇▇▇▇▇▇▇▇ Technologies will also
assist in the modification and updating of this document as it changes
throughout the course of uniView development and production.
Software Issues - ▇▇▇▇▇▇▇▇ Technologies will provide technical
assistance as required in the coordination and development of software
for uniView.
Sales ▇▇▇▇▇ - ▇▇▇▇▇▇▇▇ Technologies will help to produce "semi-
functional sales demonstration" units for pre production demonstrations.
DLP TV - ▇▇▇▇▇▇▇▇ Technologies will provide necessary design and
producibility engineering for DLP television development
Document Review - ▇▇▇▇▇▇▇▇ Technologies will Review all documents
produced by other parties contracted on the uniView project for adherence
to the uniView spec.
Production Engineering - ▇▇▇▇▇▇▇▇ Technologies will do all necessary
production engineering necessary to bring the uniView product to
development.
