DISTRIBUTOR AGREEMENT
This Agreement is made and entered into this 7th day of April, 2003 (the
"Effective Date"), by and between Wireless Links Inc, a Pennsylvania corporation
having its principal place of business at 0000 Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter called "WLI"), and Jaguar Investments,
Inc. and its affiliates, a Nevada corporation, having its principal place of
business at 00000 Xxxxxxx Xx., Xxxxx 000, Xx. Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter called "Power2Ship") with reference to the following facts:
Whereas WLI is engaged in the design and development, manufacture, importation,
distribution, resale, service and support of mobile data and GPS based
information products and services;
Whereas Power2Ship is engaged in the business of collecting, processing and
disseminating logistics information and providing other transportation-related
products and services to shippers and carriers of freight and
Whereas Power2Ship desires to become a distributor of certain of WLI's products
and services on the terms and conditions hereinafter set forth.
NOW, THEREFORE; in consideration of the mutual covenants and agreements
hereinafter set forth, the parties hereto do hereby agree as follows:
1. APPOINTMENT
1.1. WLI hereby grants to Power2Ship the non-exclusive right and license to
distribute certain WLI's products and services (the "Products" or "Units") and
software programs ("Licensed Programs") to Power2Ship's customers (which are end
users) located in North America. "Products" or "Units" in this Agreement are
limited to WLI's G3001 GPSLink mobile terminal as defined in Section 1.2.
"Licensed Programs" in this Agreement are limited to WLI's MidLink Middleware
software and G3001 programming tools. Further, Power2Ship shall also be
authorized to resell other WLI products, services and support programs subject
to separate written amendments to be made by the parties to this Agreement. WLI
reserves the right to add additional products and to delete obsolete or
superseded products at any time during the term of this Agreement upon sixty
(60) days prior written notice to Power2Ship.
1.2. G3001 GPSLink is a fully functional device including GPS receiver with an
integrated CDPD or GPRS modem including 4 dry contact alarm inputs and one
contact output and a DB9 connector for serial connection to a PDA. When
integrated with MidLink middleware the G3001 can integrate to any third party
software application subject to specifications published from time to time by
WLI and available for download from the WLI web site.
1.3. The Products and Licensed Programs shall be sold by Power2Ship to its
customers pursuant to WLI's standard warranty and software license agreements.
1.4. Power2Ship may, at any time during the term of this Agreement, assign its
rights and obligations under this Agreement to one or more of its subsidiaries
in which it owns at least 50.1% of the actual equity of the subsidiary on a
fully diluted basis and as long as Power2Ship remains the guarantor for the
payments and terms and conditions of this Agreement (individually, a
"Subsidiary"). Each Subsidiary shall thereafter have the rights and obligations
of Power2Ship hereunder with respect to all terms and conditions of this
agreement as if such Subsidiary had entered into this Agreement directly with
WLI.
1.5. If Power2Ship merges with another company and/or changes its name, this
Agreement will survive the merger and/or name change and the new entity will
assume all the rights and obligations of Power2Ship pursuant to this Agreement.
1.6. WLI may, at any time during the term of this Agreement, assign its rights
and obligations under this Agreement to any subsidiary in which it owns at least
50.1% of the equity on a fully diluted basis.
1.7. Power2Ship acknowledges that it has already integrated the G3001 packaged
with the MidLink middleware into its application tested it and found it to meet
its requirements.
2. TERM
2.1. Unless otherwise terminated as provided herein, the initial term of this
Agreement shall be three (3) years from the Effective Date and shall thereafter
be automatically renewed for subsequent one (1) year periods unless either party
notifies the other in writing of its election not to renew the Agreement at
least one hundred twenty (120) days prior to the expiration of the then-current
term. Should this Agreement be terminated by either party for any reason, the
obligations of the parties to each other as set forth herein will survive any
termination.
3. PRICES
3.1. Subject to Section 3.6 below the price of the Product, excluding the
Licensed Programs, is $[*] per Unit. The total price for both of the Licensed
Programs together is $[*] per month per Product ("License Fee"). The License Fee
shall begin on the date the Product is shipped to a customer and shall be paid
by Power2Ship to WLI by the 7th of each month for the prior month (prorated if
the Unit was shipped during the prior month) and shall continue for as long as
the Product is active on any wireless network. Notwithstanding the foregoing,
Power2Ship is obligated to pay the License Fee to WLI for a minimum of 36
months.
3.2. Once the monthly License Fee for a particular Unit has started, it will
continue for a minimum of 36 consecutive months with the only exception being
that should Power2Ship uninstall a particular Unit from one customer and install
it at another customer, Power2Ship is permitted to suspend the monthly License
Fee for that particular Unit for a maximum of 2 months during the life of this
Agreement. This suspension of the License Fee is permitted only once per a
particular Unit during the life of the Agreement (i.e., the suspension can't
occur in two non-consecutive months). Units that are suspended for less than
thirty consecutive days are not considered suspended.
3.3. Once Power2Ship has paid WLI the License Fee for a minimum of 36 months for
a particular Unit, Power2Ship may discontinue paying the month License Fee only
if that particular Unit has been deactivated from the wireless network. If a
Unit is deactivated after 36 months and subsequently is reactivated, Power2Ship
must restart the payment of the License Fee for as long as that particular Unit
remains active on the wireless network.
3.4. The $[*] hardware price per Unit is based on a single order of a minimum of
1000 Units and manufacturing of a minimum 500 Units. At the time of placing the
order with WLI, Power2Ship must pay the full purchase price of $[*] per Unit.
The delivery time is 8-10 weeks starting with the date the payment is received
by WLI.
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RH JS 6/7/2002
Page 1 of 9
3.5. To shorten the delivery time to 3-4 weeks, Power2Ship has the option to
purchase all the key components for $[*] per Unit and have them stored at no
charge by WLI on behalf of Power2Ship so they can be available for immediate
manufacturing when Power2Ship places an order. If this option is exercised, when
Power2ship places an order to authorize Units to be manufactured it will pay
with the $[*] balance per Unit at the time of such order.
3.6. Power2ship has the option to order Units in lower quantities at higher Unit
prices as follows: 100 to 299 Unit at $[*]; 300 to 499 Units at $[*] and; 500 to
999 Units at $[*]. The only exception to this will be the first order of 100
Units at a Unit price of $[*] if the order is placed no later than April 4,
2003.
3.7. The Unit prices and monthly License Fees of $[*] can't be increased by WLI
under the terms of this Agreement.
3.8. Unless otherwise stated in writing by WLI, all prices quoted shall be
exclusive of state and local use, sales and property taxes. Power2Ship agrees to
be responsible for any such taxes incurred as a result of its purchase of
Products from WLI, unless Power2Ship shall have presented WLI with an exemption
certificate.
3.9. Power2Ship may purchase dual antennas with a " screw for the Units from WLI
at the following unit prices: $[*] when purchased in quantities of 100 to 499;
$[*] when purchased in quantities of 500 to 999 and; $[*] when purchased in
quantities of 1000 or more. Terms of payment for the antennas are [*]% upon
placing the order with WLI and the balance when the antennas are ready to be
shipped to Power2Ship. A lead time of at least four weeks is required for
delivery.
3.10. Power2Ship will pay WLI 10% of any activation commissions ("Unit
Commissions"), if any, it receives as a result of any Unit activated on a
specific wireless network. The payment will be paid on the 7th of every month
for any Unit Commissions received by Power2Ship during the previous month.
Power2Ship will provide with the payment a report of the total number of
activations during the month and the amount received per activation.
3.11. All prices are FOB WLI offices in NJ.
4. RESERVATION OF TITLE; COPYRIGHT; CONFIDENTIALITY
4.1. Licensed Programs are provided solely in executable files. This Agreement
does not provide Power2Ship with title or ownership of the Licensed Programs,
but only a limited right to sub-license the Licensed Programs. The Licensed
Programs are, and shall remain, the property of WLI and certain third-party
licensors who have authorized WLI to incorporate their software into the
Licensed Programs.
4.2. Power2Ship acknowledges that the programs, software information, and user
materials included in the Licensed Programs contain confidential information and
trade secrets, which WLI has entrusted to Power2Ship in confidence to use only
as expressly permitted by this Agreement. Power2Ship acknowledges that WLI
claims and reserves all rights and benefits afforded under federal law in the
programs, software information, and user materials included in the Licensed
Programs as copyrighted works.
4.3. The MidLink software is licensed to Power2Ship for the exclusive use with
WLI's products. Power2ship commits not to connect to WLI's MidLink software
using any other wireless devices and /or terminal (s) and /or GPS devices other
than WLI branded products.
4.4. Power2Ship shall protect the programs, software information, and user
materials included in the Licensed Programs as confidential information and
trade secrets. Power2Ship shall not, at any time, disclose such confidential
information and trade secrets to any other person, firm, organization, or
employee that does not (consistent with Power2Ship's right of use hereunder)
need to obtain access to the Licensed Programs. Power2Ship shall devote its best
efforts to ensure that all Power2Ship's personnel and all other persons afforded
access to the Licensed Programs by Power2Ship protect the Licensed Programs as
trade secrets and confidential information and refrain from any use or
disclosure in any manner not expressly permitted by this Agreement. These
restrictions shall not apply to information (1) generally known to the public or
obtainable from public sources; (2) readily apparent from the keyboard
operation, visual display, or output reports of the Licensed Programs; (3)
previously in the possession of Power2Ship or subsequently developed or acquired
without reliance on the Licensed Programs; or (4) approved by WLI for release
without restriction.
4.5. Restrictions on Use of Licensed Programs and Products. The programs,
software information and user materials included in the Licensed Programs and
Products may not be decomposed, reverse engineered, reprinted, transcribed,
extracted or reproduced, in whole or in part, without the prior written consent
of WLI. Power2Ship shall not in any way modify or alter the Licensed Programs
without the prior written consent of WLI.
4.6. Survival of Obligations. Power2Ship's obligations under Section 4 of this
Agreement shall survive the termination of this Agreement.
4.7. Specific Performance and Injunctive Relief. Power2Ship agrees and
acknowledges that, in the event of any breach directly or indirectly by
Power2Ship of any provision of this Section 4, monetary damages will not afford
WLI an adequate remedy, and irreparable harm may be presumed. Accordingly, WLI
shall be entitled to receive injunctive relief from a court of competent
jurisdiction for any such breach by Power2Ship.
4.8. Confidentiality. Power2Ship acknowledges that the Licensed Programs and all
copies thereof are proprietary, confidential and a trade secret of WLI and the
exclusive title shall remain with WLI. All applicable rights to copyrights,
patents, trademarks, trade names, logos and identifying slogans and other
intellectual property rights in the products are the exclusive property of WLI
and Power2Ship shall not contest such ownership. Power2Ship is committing
directly or indirectly not to copy and/or not to reverse engineer any of WLI's
software and/or hardware products. Power2Ship shall be responsible for any
breach of this Section by its employees, agents, subcontractors or consultants.
WLI acknowledges that the conceptual functionality of its Unit is in the public
domain and this paragraph does not cover the Unit's actual functionality. But
this Section 4.8 shall apply to the proprietary WLI implementation and
technology.
5. ORDER PROCEDURE AND MANDATORY REPORTS BY POWER2SHIP
5.1. Power2Ship shall place individual written purchase orders for Products from
time to time during the term of this Agreement. Each purchase order placed by
Power2Ship shall contain the following minimum information: (i) identification
of each Product ordered by model number, quantity and price; (ii) shipping
instructions and destinations; and (iii) requested delivery date for each
Product. Power2Ship will pay for shipping cost from WLI offices in NJ to any
destination.
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RH JS Page 2
5.2. Any Units shipped by WLI directly to a customer of Power2ship as per
Power2Ship's instruction is considered activated at the date of the shipment and
the $[*] monthly License Fee will start as of that date .
5.3. Once an order is placed by Power2Ship, such order can't be cancelled and
delivery dates for Units can't be rescheduled.
5.4. When Products are ordered for the GPRS network, Power2Ship must provide one
SIM card for every Unit ordered within a maximum of two weeks from the date of
order. The Sim Cards have to be placed and tested in the Unit as they are being
manufactured at the factory. Failure to provide the SIM cards in time will
require re-opening and re-test of the Units in the US at a cost of $[*] per Unit
to be paid by Power2Ship.
5.5. Every Unit has a serial number. Power2Ship must provide WLI with a weekly
report listing the serial number of every Unit shipped to a customer during the
prior week.
5.6. Power2Ship must provide a separate weekly report to WLI that lists the
serial number of any Units suspended during the prior week and that includes the
SIM # and ID, date of return, name of returning customer and reason for return.
5.7. Power2Ship must provide a separate weekly report to WLI that lists the
serial number of any Units reactivated (i.e., after having previously been
suspended) during the prior week.
5.8. The weekly reports in Section 5.5, 5.6 and 5.7 must be sent to WLI every
Monday. The weekly reports are to be sent in Excel file format via e-mail. The
report must be sent even if there is no activity during the prior week.
5.9. Power2Ship must provide WLI with a complete copy of its monthly airtime
xxxx for the Units as received by the respective wireless operators (T-Mobile,
Verizon, AT&T, etc.). Power2Ship is required to keep all the WLI Unit
activations on every wireless network on a separate account from any other
vendor's brand used by Power2Ship. Every such monthly invoice (one per operator)
must be submitted to WLI within 7 days from the date it is received by
Power2Ship and the invoice must include all pages listed on the invoice (example
7of 7 pages). Power2Ship's Chief Executive Officer or Chief Financial Officer
must confirm in writing to WLI every quarter that the account numbers under
which the WLI Units are being activated on the various networks are the only
accounts under which the WLI units are activated.
6. DELIVERY, TITLE AND RISK OF LOSS
6.1. Delivery shall be F.O.B. WLI's facility in Lyndhurst, New Jersey. WLI shall
use its reasonable efforts to deliver Products to Power2Ship on the date of
delivery specified by Power2Ship. WLI will use its reasonable efforts to notify
Power2Ship of any delays in scheduled delivery dates.
6.2. Title to the Products and the risk of loss or damage shall pass to
Power2Ship upon delivery of the Products to Power2Ship or its shipping company
of choice. In the event of any loss of or damage to the Products following
delivery to the carrier, WLI shall, upon request, cooperate with Power2Ship in
connection with the proof of loss claim presented by Power2Ship to the carrier
and/or insurer.
6.3. Power2Ship shall bear the entire risk of loss or damage to the Units and
any other equipment purchased from WLI (collectively the "Equipment") after
installation of the Equipment in the customers' vehicles. The occurrence of any
such loss or damage shall not permit Power2Ship to delay or reduce the payment
of any fees prescribed under this agreement unless Power2Ship presents WLI with
proof of a claim to an insurance company and, in such case, Power2Ship should
replace the lost or damaged Equipment within a maximum of 60 days and resume the
payment of monthly License Fees to WLI. Power2Ship is advised to obtain and
maintain property and casualty insurance for the Equipment against all risks of
loss or damage. The amount of such insurance shall not be less than the
replacement cost of the Equipment.
6.4. Power2Ship is responsible for maintaining and storing in a safe and secure
location backup copies of all data files Power2Ship may place in the System. In
no event shall WLI be liable for loss or destruction of Power2Ship's data files
for any reason.
7. PAYMENT
7.1. Power2Ship must pay WLI for the Products in full on the day it submits a PO
(i.e., the PO is not valid unless accompanied by payment in full).
7.2. The payment of the optional antenna is 50% with the purchase order and 50%
when the antennas are ready to be shipped to Power2Ship.
7.3. Monthly License Fees must be paid no later then the 7th of the month for
all Units active during the previous month. For example, on the 7th of July
Power2Ship will pay for Units that were active in June.
7.4. The purchase price for the Unit does not include repair beyond the first
year limited warranty. The renewal of the limited warranty after the first year
is at the option of the customer, but in any case, Unit failure does not relieve
Power2Ship of its obligation to pay the monthly License Fees to WLI for that
Unit. The first year limited warranty starts on the day of the activation of the
Unit on a wireless network. As a distributor, Power2Ship should keep a minimum
number of Units in stock for immediate replacement for its customers.
7.5. This Agreement is separate and apart from the contract between Power2Ship
and its customer. Failure of the customer to pay Power2Ship, for whatever
reason, does not affect the obligation of Power2Ship to pay its contractual
obligations to WLI.
7.6. If an invoice is past due by more than 30 days, WLI may discontinue
providing technical support to Power2Ship until the invoice is paid. If
Power2Ship does not make payment of any amount due and payable hereunder within
60 days of the date of invoice, WLI (without prejudice to any other remedy)
shall be entitled to interest on all past due amounts at the lower of eighteen
percent (18%) per annum or the highest rate permitted by law, plus reimbursement
of all costs incurred in collecting such amounts, including court costs and
reasonable attorney fees.
8. LICENSED SOFTWARE ACCESS AND AUDIT
8.1. Should a dispute occur concerning the number of Units that Power2Ship has
activated with its customer, WLI may designate an independent certified public
accountant who may audit Power2Ship's books and records concerning sales of
Units and of Licensed Software under this Agreement. Said examination shall be
at WLI's sole cost and expense during normal business hours and upon reasonable
notice, and may not be conducted more than once annually; provided, however,
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that if such audit reveals an underpayment by Power2Ship of more than 10% for
the period audited, Power2Ship shall pay WLI's actual costs and expenses for
performing such audit.
8.2. WLI, at its own discretion, may visit Power2Ship's warehouse at normal
business hours to verify the actual number of Units in inventory and/or the
number of Units suspended.
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RH JS Page 3
8.3. Power2Ship commits to allow WLI free access to its MidLink software via the
Internet for ongoing maintenance and updates.
9. PRODUCT INFORMATION OBLIGATIONS
9.1. Product Descriptions and Technical Support Requirements. WLI shall provide
Power2Ship with integration documentation and programming information for its
Unit.
9.2. Warranty Return Procedure. WLI's warranty return procedure is set forth in
Exhibit A.
10. TECHNICAL INFORMATION AND SERVICES
10.1. WLI shall provide, at no cost to Power2Ship, reasonable training,
including but not limited to, training of Power2Ship's sales and technical
personnel, to enable Power2Ship to meets its obligations under this Agreement,
including its obligation to provide service or support to end-users following
termination of this Agreement.
10.2. Power2Ship is committed to provide technical support and service for WLI's
Products sold by Power2Ship to its customers.
10.3. Power2Ship will receive the first customer call and will have to maintain
a minimum inventory level of spare Units to service its customers within 48
hours. WLI will support an end-user only upon Power2Ship's request and only
after Power2Ship has tried to provide the support and has failed to fix the
problem. WLI will not be involved in any end-user training.
10.4. Power2Ship will maintain a minimum level of inventory of the Product for
service purposes, which the parties estimate to be 1% of the aggregate number of
Units active on any wireless network at any given time.
11. WARRANTY AND INDEMNIFICATION
11.1. WLI warrants the Products pursuant to the terms of its hardware limited
warranty and limited software warranty set forth in Exhibit B hereto. Subject to
the terms and conditions of Exhibit A, WLI agrees, in its sole discretion, to
repair or replace at its sole cost and expense, any defective Products or parts
thereof which are returned to it within the applicable warranty period, provided
that the Products have not been altered or repaired other than with
authorization from WLI and by its approved procedures; that the Products have
not been subjected to misuse, improper maintenance, negligence or accident; that
the Products have not been damaged by excessive physical or electrical stress;
and that the Products have not had their serial number or any part thereof
altered, defaced or removed.
11.2. The warranty and remedies set forth in Exhibit B are exclusive and in lieu
of any other warranties or remedies, express or implied, including the implied
warranties of merchantability and fitness for intended or particular purpose.
The liability of WLI to Power2Ship for any claim whatsoever related to the
Products or the Licensed Programs or this Agreement, including any cause of
action in contract, tort, or strict liability, shall not exceed the total amount
payable under this Agreement by Power2Ship to WLI within the most recent
six-month period for the Licensed Programs (if such claim relates to the
Licensed Programs), or for the WLI Products (if such claim relates to the WLI
Products). Under no circumstances shall WLI be liable to Power2Ship or to any
other person or entity for any incidental, special or consequential damages
whether arising out of breach of warranty, breach of contract or otherwise even
if WLI has been advised of the possibility of such claims or demands.
11.3. To the extent not otherwise provided herein, WLI agrees to defend,
indemnify and hold harmless Power2Ship from and against (a) any claim by a third
party that a Product supplied hereunder did not conform to WLI's warranty when
received by Power2Ship or that WLI failed on request to provide warranty service
in accordance with WLI's applicable warranty statement or (b) any claim arising
under Section 14 of this Agreement. Power2Ship shall be reimbursed for any
actual loss, liability or damage suffered or incurred by Power2Ship and for all
reasonable costs and expenses (including reasonable attorneys' fees) incurred by
Power2Ship in connection with any action, suit, proceeding, demand, assessment
or judgment incident to any of the matters indemnified against in this provision
provided that Power2Ship immediately notifies WLI as to the institution of such
suit, gives or obtains for WLI such authority as may be necessary for WLI to
defend same, and supplies WLI such further information and assistance for the
defense thereof as WLI may reasonably require and request. WLI shall have no
obligation under this section, and shall have no liability to Power2Ship, if
such claim arises due to the alteration or modification of any Product without
the prior written consent of WLI.
11.4. Power2Ship shall defend, indemnify and hold harmless WLI from all
liability and claims whatsoever for any injury to persons or property or for any
loss, expense, or damage incurred by any of Power2Ship's personnel or invitees
or by any other person or party (except agents or employees of WLI) arising as a
result of or in connection with Power2Ship's acquisition or use of the Products
and Licensed Programs or WLI 's performance of its obligations or exercise of
its rights hereunder except for those claims which are the result of the willful
acts or gross negligence of WLI.
12. INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION
12.1. WLI represents and warrants that: (i) it owns all right, title and
interest in and to the Products necessary to enter into and perform its
obligations to Power2Ship hereunder, and (ii) no Product or Licensed Programs
sold to Power2Ship during the term of this Agreement, nor the use of any such
Product or Licensed Program, nor anything in or contemplated by this Agreement,
infringes upon the Intellectual Rights (as defined herein) of any other person
or entity, and no suit or proceeding is pending or threatened alleging that any
Product or Licensed program, or the use thereof, infringes upon any Intellectual
Rights. As used herein, the term "Intellectual Right" means any rights relating
to any trademark, trade name, service xxxx, copyright, patent, trade secret or
other proprietary right.
13. USE OF TRADEMARKS
13.1. Power2Ship shall not acquire any right to or interest in any trademark or
trade name owned or used by WLI. Power2Ship may use for purposes of this
Agreement such trademarks and trade names as appear on the Products and on
promotional materials therefore when received by Power2Ship from WLI.
13.2. Power2Ship acknowledges that WLI and its affiliates are the owners and/or
licensees of the trademarks, service marks, commercial symbols and trade names
used by WLI. Power2Ship shall not contest the right of WLI and its affiliates to
the use of any trademarks, service marks, commercial symbols or trade names used
or claimed by WLI.
13.3. All WLI's use of Power2Ship's company name, logos, trademarks or other
registered identifiers must meet Power2Ship's corporate communications standards
and must have Power2Ship's written approval prior to such use by WLI. All
Power2Ship's use of WLI's company name, logos, trademarks or other registered
identifiers must meet WLI's corporate communications standards and must have
WLI's written approval prior to such use by WLI.
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RH JS Page 4
13.4. Power2Ship shall have the right to place its trademarks on the Products
but shall not obscure any WLI trademarks.
14. TERMINATION
14.1. Termination for Cause by WLI WLI may, upon written notice, terminate this
Agreement at any time in the event that (a) Power2Ship defaults or otherwise
fails to perform any obligation, warranty, duty, responsibility or other term or
condition of this Agreement, including failure to make a payment when due and
such default or failure continues unremedied for a period fifteen (15) days
after such notice; (b) Power2Ship ceases permanently to carry on its present
business, except as a result of a bona fide reorganization in the course of
which the Agreement is transferred to a successor company of equal or greater
financial resources carrying on substantially the same business; (c) Power2Ship
makes an assignment for the benefit of creditors; or admits in writing its
inability to pay debts as they mature; or a trustee or receiver of Power2Ship,
or of any substantial part of Power2Ship's assets, is appointed by any court; or
a proceeding is instituted by or against Power2Ship under any provision of the
United States Bankruptcy Code or any other law affecting the rights of creditors
and such proceeding is acquiesced in or is not dismissed within sixty (60) days;
or (d) WLI's continued performance under this Agreement would cause it to be in
violation of (i) any order of any court or regulatory agency having jurisdiction
over WLI, or (ii) any law, statute, ordinance or regulation to which WLI is
subject.
14.2. Termination for Cause by Power2Ship. Power2Ship may, upon written notice,
terminate this Agreement at any time in the event that (a) WLI defaults or
otherwise fails to perform any obligation, warranty, duty, responsibility or
other term or condition of this Agreement, including failure to pay a refund
when due and such default or failure continues unremedied for a period fifteen
(15) days after such notice; (b) WLI ceases permanently to carry on its present
business, except as a result of a bona fide reorganization in the course of
which the Agreement is transferred to a successor company of equal or greater
financial resources carrying on substantially the same business; (c) WLI makes
an assignment for the benefit of creditors; or admits in writing its inability
to pay debts as they mature; or a trustee or receiver of WLI, or of any
substantial part of WLI's assets, is appointed by any court; or a proceeding is
instituted by or against WLI under any provision of the United States Bankruptcy
Code or any other law affecting the rights of creditors and such proceeding is
acquiesced in or is not dismissed within sixty (60) days; or (d) Power2Ship's
continued performance under this Agreement would cause it to be in violation of
(i) any order of any court or regulatory agency having jurisdiction over
Power2Ship, or (ii) any law, statute, ordinance or regulation to which
Power2Ship is subject.
14.3. Termination of this Agreement shall not release either party from the
obligation to pay any sums to the other party whether then or thereafter due or
operate to discharge any liability which has been incurred prior to the
effective date of such termination.
14.4. Upon expiration of this Agreement or termination by either party,
Power2Ship may sell off any remaining inventory of the Products or Licensed
Software acquired prior to termination.
14.5. Neither party shall be liable to the other party for any special,
incidental, or consequential damages arising in connection with, or out of
termination of, this agreement.
15. NOTICES
Any notice or communication given pursuant to this Agreement shall be in
writing, delivered in person or may be telegraphed, telexed, sent by facsimile
transmission or United States certified, registered or express mail, Federal
Express or other private courier, postage prepaid, return receipt requested in
the event of delivery by mail. In the event notice shall be given by facsimile
transmission an original of such notice shall simultaneously be deposited in
United States mail, postage prepaid, or sent by Federal Express or other private
courier, addressed as hereinafter required. Notices shall be given to the
parties addressed as set forth in the first paragraph of the Agreement or at
such other address as the parties may from time to time designate by notice
hereunder. Notices shall be given when delivered personally, or when
telegraphed, telexed or sent by facsimile transmission if sent during regular
business hours of the recipient and if not, on the next following business day
or if mailed, at midnight on the third business day after the date of mailing or
if sent by Federal Express or by other private courier on the next following
business day.
If to WLI: Wireless Links, Inc.
Attention: Xxx Shayovitch
0000 Xxxx Xxxxxx Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Facsimile No. 000-000-0000
If to Power2Ship: Freight Rate, Inc.
Attention: Xxxxxxx Xxxxx
00000 Xxxxxxx Xx., Xxxxx 000
Xx. Xxxxxxxxxx, XX 00000
16. GENERAL
16.1. This Agreement, its interpretation and construction, and the remedies for
its enforcement or breach are to be applied in accordance with the laws of the
State of New Jersey.
16.2. Failure on any occasion by WLI or Power2Ship to enforce any term or
condition of this Agreement shall not prevent or bar enforcement on any other
occasion.
16.3. Neither party shall be deemed to be in default of any provision hereof or
be liable for any delay, failure in performance or interruption of service
resulting directly or indirectly from act of war, act of God, act of civil or
military authority, civil disturbance or any other cause beyond its reasonable
control.
16.4. The relationship between WLI and Power2Ship is that of independent
contractors. Neither party, nor its agents or its employees shall be deemed to
be the agent of the other party. Neither party shall have the right to bind the
other party, transact any business in the other party's name or in its behalf or
incur any liability for or on behalf of the other party.
16.5. Neither WLI nor Power2Ship shall intentionally disclose, and each party
shall use reasonable efforts to prohibit, the unintentional disclosure to any
third party of any confidential or proprietary information of the other party
during the term of this Agreement and for a period of one (1) year thereafter.
16.6. The headings to the paragraphs of this Agreement are included merely for
convenience of reference and shall not affect the meaning of the language
included therein.
16.7. No provisions of this Agreement may be altered or amended unless such
alteration or amendment is in writing and executed by duly authorized officers
of both parties, except where otherwise specifically provided for in this
Agreement.
16.8. The covenants contained in this Agreement which, by their terms, require
or contemplate performance by the parties after the expiration or termination of
this Agreement shall be enforceable notwithstanding said expiration or
termination.
16.9. This Agreement (including all Exhibits hereto), constitutes the entire
Agreement and understanding between the parties relating to the subject matter
hereof, supersedes all other agreements, oral or written, heretofore made
between the parties with respect to such subject matter, supersedes the standard
terms and conditions in Power2Ship's purchase order form and WLI's quotation,
invoice or acknowledgment form, and supersedes any other terms or conditions of
purchase proposed by Power2Ship or WLI. This Agreement may not be assigned by
either party without the prior written consent of the other party. If any
provision in this Agreement should be held illegal or unenforceable, no other
provision of this Agreement shall be affected.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first written above.
Wireless Links, Inc. Jaguar Investments, Inc.
By: By:
------------------------- -----------------------------
Its: Its: Chief Executive Officer
------------------------ ----------------------------
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RH JS Page 6
EXHIBIT A
PRODUCT WARRANTY INFORMATION
WARRANTY
A) HARDWARE LIMITED WARRANTY - WLI will provide a one year limited warranty
for its hardware products as per the terms and conditions described in
"Attachment B". The first year warranty starts with the date of shipment
and terminates on the anniversary of the first year.
B) Extended limited warranty beyond the first year is available at the same
terms and conditions described in "Attachment B ". The second year Limited
warranty price will be determined between the parties based on the total
number of units to be under warranty in a particular year.
- The Warranty is a limited warranty that does not cover damage caused by
improper use, abuse or use for other than intended purposes. The Warranty
does not cover LCD screen or batteries. See Attachment B, Limited Warranty
for the Acknowledger(TM) and related accessories.
- The parties understand and agree that WLI does not warrant any part of the
Peripheral equipment that is not sold directly by WLI
- Within 14 days from discovery of a defect, the Integrator shall notify WLI
in writing of said defect. Said notice of defect shall contain a reasonably
detailed description of the defect as determinable by the Integrator. Said
notice shall also indicate the serial numbers of all Acknowledgers and the
release levels of software in which the defect was discovered.
C) DEFECTIVE EQUIPMENT RETURN. Defective equipment will be returned promptly
to WLI's repair centre at the Power2Ship cost. The integrator will return
for repair products under warranty and will pay the shipping cost to WLI
and will carry the risk of loss until the package has been delivered to
WLI. WLI will pay the shipping cost back via standard "UPS ground" and will
carry the risk of loss until the package is delivered to the integrator.
For each unit, prior to return Power2Ship must send WLI a description of
the problem including the serial number and date of shipping and date of
purchase. Every return must have a Return Merchandise Authorisation number
(RMA) as issued by WLI. Replacement or repaired units will be returned to
the Integrator within 14 working days of receipt of a defective unit at
WLI's cost.
D) LIMITED WARRANTY OF LICENSED PROGRAMS.
WLI warrants, for the benefit of the Integrator only, that at the time
Integrator's license of Licensed Programs commences, WLI has the right and
authority to license the Licensed Programs to Integrator, and the Licensed
Programs conform in all material respects to any specifications supplied to
Integrator in writing by WLI. WLI does not warrant that the Licensed
Programs can be used without interruption or that they are error-free.
Any implied warranties of the Licensed Software are LIMITED to one year
starting from the date it was shipped to the integrator or starting with
the date specified as the starting date in the leasing and / or purchase
agreement with the Integrator. If the date is different then the shipping
date to the integrator the integrator has to provide a copy of the
agreement with the Integrator to verify the start of warranty.
E) CORRECTIONS AND UPDATES OF LICENSED PROGRAMS.
WLI shall maintain the accuracy of the Licensed Programs by making a
reasonable attempt to correct any programming or database errors that
Integrator brings to WLI attention. In addition, WLI from time to time may
furnish Integrator with further releases of the Licensed Programs to
provide corrections of significant programming or database errors and
updates of database information. WLI obtains the information contained in
the database of the Licensed Programs from established outside sources, and
WLI makes every effort to keep the information up-to-date, but it cannot
guarantee absolute accuracy and timeliness. After the expiration of the
initial term of this Agreement, WLI shall provide any correction and update
assistance only on mutually acceptable terms at WLI's customary rates then
in effect. WLI reserves the right to make modifications and enhancements of
the Licensed Programs (other than simple corrections and updates
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RH JS Page 7
EXHIBIT B
End User Warranty
LIMITED WARRANTY FOR THE ACKNOWLEDGER(TM) AND RELATED ACCESSORIES
-----------------------------------------------------------------
Wireless Links (WLI) warrants to the original end user purchaser ("You") that
the Equipment will be free from defects in workmanship and materials ("Limited
Warranty") for a period of one (1) year from the date of the purchase of the
Equipment (the "Warranty Period"). This limited warranty does not apply to
normal wear and tear and does not cover repair or replacement of Equipment
damaged by misuse, accident, abuse, neglect, misapplication, alteration of any
kind (including upgrades and expansions)' disaster or defects due to repairs or
modifications made by anyone other than the Manufacturer or its authorized
service representative. In addition, this limited warranty does not apply to
physical damage of any nature whatsoever to the surface of the display, to the
surface of the signature pad of the Equipment or to any data stored within the
Equipment. WLI shall not have any liability whatsoever with respect to any data
stored within the Equipment. Before returning any Equipment under this limited
warranty, call WLI and request a return merchandise authorization number (RMA -
number)' then ship the Equipment in the original packaging or its equivalent to
the location designated by WLI accompanied by proof of purchase, a brief written
explanation of the defects, the RMA Number and a return shipment address. WLI at
its discretion will repair or replace the Equipment in accordance with the terms
of this limited warranty and send it back to you. You are responsible for the
cost of shipping the Equipment to the location designated by WLI and the risk of
loss or damage in transit. WLI will bear the cost of return shipment to you and
the risk of loss or damage during such return shipment.
REPAIR OR REPLACEMENT BY WLI AS PROVIDED IN THIS LIMITED WARRANTY IS YOUR
EXCLUSIVE REMEDY UNDER THIS LIMITED WARRANTY. WLI SHALL NOT BE LIABLE FOR ANY
SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES. WLI DISCLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO,
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION OR SAMPLE. ANY SOFTWARE
PROVIDED WITH THE EQUIPMENT IS PROVIDED UNDER A SEPARATE SOFTWARE LICENSE
AGREEMENT.
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EXHIBIT C-2
END-USER PROGRAM LICENSE AGREEMENT
WIRELESS LINKS (WLI) SOFTWARE LICENSE AGREEMENT
----------------------------------------------------
Licensed Programs are provided solely in executable files and consist of the
following programs: MidLink (WLI's middleware), MapLink, and all G3001 related
programming tools,
1. RESERVATION OF TITLE. This Agreement does not provide the Power2Ship (you)
with title or ownership of the Licensed Programs, but only a right of limited
use of one copy per software package per license. The Licensed Programs are, and
shall remain, the property of Wireless Links and certain third-party licensers
who have authorized Wireless Links to incorporate their software into the
System. Subject to a distribution agreement the Power2Ship (you) can
redistribute the licensed products but you can't reproduce the Licensed
Programs.
2. COPYRIGHT PROTECTION. Power2Ship acknowledges that the programs, software
information, and user materials included in the Licensed Programs contain
confidential information and trade secrets, which WLI(TM) has entrusted to
Power2Ship in confidence to use only as expressly permitted by this Agreement.
Power2Ship acknowledges that Wireless Links claims and reserves all rights and
benefits afforded under federal law in the programs, database information, and
user materials included in the Licensed Programs as copyrighted works.
3. PRESERVATION OF SECRECY AND CONFIDENTIALITY. Power2Ship shall protect the
programs, database information, and user materials include din the Licensed
Programs as confidential information and trade secrets. Power2Ship shall not, at
any time, disclose such confidential information and trade secrets to any other
person, firm, organization, or employee that does not (consistent with
Power2Ship's right of use hereunder) need to obtain access to the Licensed
Programs. Power2Ship shall devote its best efforts to ensure that all
Power2Ship's personnel and all other persons afforded access to the Licensed
Programs by Power2Ship protect the Licensed Programs as trade secrets and
confidential information and refrain from any use of disclosure in any manner
not expressly permitted by this Agreement. These restrictions shall not apply to
information (1) generally know to the public of obtainable from public sources;
(2) readily apparent from the keyboard operation, visual display, or output
reports of the Licensed Program; (3) previously in the possession of Power2Ship
or subsequently developed or acquired without reliance on the Licensed programs;
or (4) approved by WLI for release without restriction.
4. RESTRICTIONS ON USE OF LICENSED PROGRAMS. The programs, software information,
and user materials included in the Licensed Programs may not be decompiled,
reverse engineered, reprinted, transcribed, extracted, or reproduced, in whole
or in part, without the prior written consent of WLI. Power2Ship shall not in
any way modify or alter the Licensed Programs without the prior written consent
of WLI.
5. SURVIVALS OF OBLIGATIONS; RETURN OF PROGRAMS. Power2Ship's obligations under
this Agreement shall remain in effect for as long as Power2Ship continues to use
the Licensed Programs. Power2Ship shall promptly return all materials and
documentation relating to the Licensed Programs provided by WLI upon (1)
termination of either this Agreement of Power2Ship's license of the Licensed
Programs, for any reason, or (2) discontinuance or abandonment of Power2Ship's
use or control of the Licensed Programs.
6. POWER2SHIP'S DATA FILES. Power2Ship is responsible for maintaining and
storing in a safe and secure location backup copies of all data files Power2Ship
may place in the System. In no event shall WLI(TM) be liable for loss or
destruction of Power2Ship's data files for any reason.
7. LIMITED WARRANTY ON LICENSED PROGRAMS. WLI(TM) warrants, for the benefit of
Power2Ship only, that at the time Power2Ship's license of Licensed Programs
commences, WLI(TM) has the right and authority to license the Licensed Programs
to Power2Ship, and the Licensed Programs conform in all material respects to any
specification supplied to Power2Ship in writing by WLI(TM). WLI(TM) does not
warrant that the Licensed Programs can be used without interruption or that they
are error-free. Any implied warranties of the Licensed Software are LIMITED to
one year starting from the date of purchase or for the period described in the
contractual agreement with the Power2Ship. For best and fast service WLI
recommends to Power2Ship to install on the server NT computer a modem fax with
PC-Anywhere software and a dedicated phone line to allow WLI to dial in for
routine maintenance.
8. CORRECTIONS AND UPDATES OF LICENSED PROGRAMS. WLI shall maintain the accuracy
of the Licensed Programs by using its best endeavors to correct any programming
or database errors that Power2Ship brings to WLI(TM)'s attention. In addition,
during the warranty period and/or duration of this agreement WLI from time to
time may furnish Power2Ship with further releases of the Licensed Programs to
provide corrections of significant programming or software errors. After the
expiration of this agreement, WLI shall provide any correction and update
assistance only on mutually acceptable terms at WLI's customary rates then in
effect. WLI(TM) reserves the right to make optional modifications and
enhancements of the Licensed Programs (other than simple corrections and
updates) available only at additional charges.
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