JOINT VENTURE AGREEMENT
THIS
AGREEMENT (the "Agreement") is made as of this March 29, 2005 (the “Effective
Date”), by and between ESPRE Solutions Inc., having offices at 0000 Xxxx Xxxxx
Xxxxxxx, Xxxxx 0000, Xxxxx, XX 00000, ("ESPRE") and GreatTraX LLC a company
duly
organized and existing under the laws of Kansas, having its principal place
of
business at 0000 Xxxxxxxxx Xxxx, Xxxxxxx XX 00000 ("GreaTraX"). Both ESPRE
and
GreaTrax are hereinafter referred to as the "Joint Venturers".
WHEREAS
ESPRE is engaged in the business of producing certain computer software programs
and hardware; and
WHEREAS
GreaTraX is engaged in the business of marketing broadband services to the
wholesale and retail consumer market; and
NOW,
THEREFORE, it is mutually agreed by and between the Joint Venturers as
follows:
| 1. |
NAME
OF JOINT VENTURE.
|
|
The
name of the Joint Venture shall be "StreamTraX Media Group, LLC"
('StreamTraX"). Upon execution of this Agreement, the Joint Venturers
shall sign and cause to be filed and published in the state of Kansas
a
certificate of authority to do business or other appropriate similar
document indicating that the Joint Venture will be conducting business
under such name. Such a certificate or other document shall also
be
recorded by the Joint Venture, if required, under the laws of any
other
jurisdiction in which it plans to conduct business or own property
as the
Joint Venturers may determine, from time to
time.
|
| 2. |
PURPOSE
OF JOINT VENTURE.
|
| The Joint Venturers hereby enter into a joint venture (the "Joint Venture") for the term set forth herein for the purpose of jointly creating and developing enhanced, secure Internet video communications and content delivery products and services, which can then be marketed and sold both, jointly or severally by the Joint Venturers on a global basis. (The above referred to concept is hereinafter sometimes collectively referred to as the "Project" and the items which are produced are hereinafter sometimes collectively referred to as the “Property”). |
| 3. |
PRINCIPAL
OFFICES OF THE JOINT VENTURE.
|
| The location of the principal office of the Joint Venture shall be 0000 Xxxxxxxxx Xx., Xxxxxxx, XX 00000, or shall be at such other place or places in the state of Kansas as the Joint Venturers shall from time to time designate. |
| 4. |
NAME
AND DOMICLE OF EACH JOINT VENTURER.
|
The
name
and address of each of the Joint Venturers is as set out below:
| GreaTraX, LLC | ESPRE Solutions, Inc. | |
| 0000 Xxxxxxxxx Xxxx | 0000 X. Xxxxx Xxxxxxx | |
| Xxxxxxx, XX 00000 | Xxxxx 0000 | |
| Xxxxx, XX 00000 |
| 5. |
TERM
OF JOINT VENTURE.
|
|
The
term of the Joint Venture shall commence as of the date first above
written, and unless terminated earlier in accordance with the provisions
of this Agreement, shall continue for the longer of (i) the duration
of
any and all copyrights or patents owned by the Joint Venture in
connection
with the Property, (ii) the aggregate term of any and all agreements
relating to the Property or (iii) upon termination as provided
for in
Section 20 below (the
"'Term").
|
| 6. |
DEFINITIONS.
|
6.1 Software.
Unless
otherwise noted, the term “Software” shall mean (i) the object code version of
the computer programs listed on the price list attached hereto as Addendum
B
“Retail Price List” and (ii) the object code version of any updates,
modifications or revisions to such computer programs.
6.2 Hardware.
The
term “Hardware” shall mean (i) any equipment manufactured by and/or for Joint
Venture as listed on Addendum B, and (ii) any OEM, third party or private
labeled equipment customized by and/or for Joint Venture which is designed,
built or modified to contain any of the Software set forth in Section 6.1,
above.
6.3 New
Product.
The
term “New Product” shall mean any new Software, Hardware and/or Service which
the Joint Venture may introduce for resale by Joint Venturers which is not
currently produced or currently included in Addendum B.
6.4 Documentation.
The
term “Documentation” shall mean the users’ manuals and other documentation
provided by Joint Venture for use with the Software and/or Hardware. Unless
expressly excluded, the terms “Software” and “Hardware” as used herein shall
include the applicable Documentation.
6.5 Products.
The
term “Products” shall mean any Software, Hardware, or Documentation as set forth
in Sections 6.1, 6.2, 6.3 or 6.4.
6.6 Certified
Sales & Service Personnel.
The
term “Certified StreamTraX Professional” shall mean any individual who has
successfully completed the minimum sales, engineering and customer
service/support training program provided by Joint venture at a location
determined by Joint Venture and who has received an officially authenticated
certificate from the Project recognizing such training program completion,
unless such certification is waived by Joint Venturers in writing.
6.7 General
Reseller.
The
term “General Reseller” shall mean any Reseller who, as an Independent
Contractor, shall receive an appointment to represent StreamTraX for the purpose
of marketing and sales of the Products to end users in the territory specified
in their Reseller Agreement.
6.8 Master
Reseller.
The
term “Master Reseller” shall mean any Reseller who is vested with the authority
to appoint, hire or otherwise engage General Resellers in addition to such
Master Reseller’s efforts. Said Independent Contractor shall be deemed a General
Reseller of StreamTraX Products and shall therefore be required to execute
a
General Reseller Agreement prior to his/her appointment.
6.9 Corporate
Reseller.
The
term “Corporate Reseller” shall mean any Reseller who is appointed with the
authority to appoint, hire or otherwise engage Independent Contractors as Master
Resellers or General Resellers to their own Corporate Reseller Agreement with
StreamTraX, in addition to their own efforts, for the purpose of marketing,
sales and distribution of StreamTraX Products. Said sub-dealer to the Corporate
Reseller shall be deemed a direct Master Reseller or direct General Reseller
of
the Products as stipulated and set forth by the Corporate Reseller Agreement
and
shall therefore be required to execute the Master Reseller Agreement or General
Reseller Agreement, respectively.
6.10 Addendum.
The
term Addendum means one of the following documents attached hereby and
incorporated by reference into this Agreement for all purposes.
Addendum
A - Products For Resale By Joint Venture
Addendum
B - Retail Price List
Addendum
C - Schedule of Protected Contacts
| 7. |
TITLE
TO THE PROPERTY.
|
Any
and
all Property and assets of the Joint Venture as well as all intangible rights,
including, without limitation, all patents, copyrights, trade names and
trademarks, in and to the Project, and all other forms of exploitation of the
Property, and all ancillary, merchandising, music, video and book publishing
rights, shall be owned and title shall be held in the name of the Joint
Venture.
| 8. |
MANAGEMENT
AND JOINT VENTURER
RESPONSIBILITIES.
|
The
Joint
Venturers shall have equal power, authority and control over all creative,
business, financial and legal matters in connection with the Joint Venture
and
the development, packaging, production and exploitation of the Property, and
all
subsidiary and ancillary rights thereto and all exploitation thereof including,
without limitation, decisions regarding the budget, and the consideration for
any rights granted or services rendered hereunder by the Joint Venturers and
others, and all decisions regarding the foregoing shall be made only by the
unanimous agreement of the Joint Venturers.
| 9. |
TIME
COMMITMENT AND EXCLUSIVITY.
|
The
Joint
Venturers hereby agree that each Joint Venturer shall devote as much time as
shall be reasonably necessary to fulfill in its duties and obligations in
connection with the Joint Venture and their ability. The Joint Venturers and
the
time, skill and effort of their respective principals shall not be exclusive
to
the Joint Venture and each Joint Venturer may develop other properties and
engage in other activities separate and apart from the Joint Venture and the
other Joint Venturer.
| 10. |
CAPITAL
CONTRIBUTIONS.
|
10.1 The
Joint
Venturer ESPRE shall make no initial cash contribution to the Joint Venture.
Its
contribution to the Joint Venture shall consist of its assignment to the Joint
Venture certain, specific rights to its proprietary intellectual properties
and
products as outlined in Section 11 of this agreement.
10.2 The
Joint
Venturer GreaTraX shall make a cash contribution of One Thousand Dollars
($1,000.00) to the Joint Venture upon signing this Agreement and shall bear
all
true costs to private labeling of the ESPRE technology into products and
services, which can then be marketed by the Joint Venture or by GreaTraX and
will bear all true costs to identify, research and develop new products and
services to be marketed by the Joint Venture and both ESPRE and
XxxxXxxX.
| 00. |
SUPPLY
AGREEMENT/INTELLECTUAL PROPERTY
CONTRIBUTIONS.
|
11.1 Grant
to Resale.
Subject
to the terms of this Agreement and the limitations set forth below, Joint
Venturers hereby grant each other a non-transferable, non-exclusive right to
market and distribute each other’s Products and Services in private labeled from
and the Joint Venture hereby grants each Joint Venturer a non-transferable,
non-exclusive right to market and distribute its Property with such Products,
Services and Property set forth in Addendum A “Products for Resale by Joint
Venture” and by this reference such exhibit is incorporated herein and made a
part hereof. (The above referred to concept may hereinafter sometimes
collectively be referred to the Joint Venturers as “Resellers”).
11.2 Territory.
By
virtue of this agreement, ESPRE, the Joint Venture and GreaTraX have the
authority to resale each other’s Products and Services in a private labeled form
on a global, world-wide basis unless otherwise noted and specifically restricted
in other parts of this agreement
11.3 Title
and Ownership.
Joint
Venturers hereby acknowledges that all right, title and interest in and to
each
other’s original Software, Hardware and Documentation which each bring to the
Joint Venture shall at all times remain that of the originating party, including
all rights in the nature of patent, copyright and other proprietary rights
with
respect to the Software, Hardware and Documentation. Neither Joint Venturer,
nor
the Project itself, shall have right, title or interest therein nor shall they
have the authorization to grant any right or license with respect thereto except
as expressly set forth herein.
11.4 Assignment
of Interest.
In
furtherance of Section 11.3 above and notwithstanding Section 7, the Joint
Venturers hereby assign, transfer and convey to the Joint Venture, all of their
respective rights, title and interest including patents, copyrights and all
extensions and renewals thereof, in and to (i) any certain original concept
developed by the Joint Venture, and (ii) any customization of either Joint
Venturer’s original source code, engineering drawings, schematics, Software,
Hardware and Documentation by the Joint Venture into a new, unique Product
or
Service, which accompanies this Agreement as Addendum “A” and by this reference
such exhibit is incorporated herein and made a part hereof.
11.5
No
Copying, Reverse Engineering, Etc.
The
Joint Ventuerers agree that they will obtain or keep record of all copies and/or
pieces of each other’s original Products and shall not copy or duplicate each
other’s original products for any reason. The Joint Venturers are not permitted
under any circumstances to use, market or distribute each other's original
Products other than as provided herein. The Joint Venturers agree not to (i)
disassemble, decompile or otherwise reverse engineer the Software, Hardware
and/or Documentation or otherwise attempt to team the source code, structure,
algorithms or ideas underlying each other's original Products, (ii) rent, lease
or otherwise provide temporary access to each other's original Products, (iii)
tape any action contrary to each other's end-user license agreements except
as
expressly and unambiguously allowed under this Agreement, (iv) copy, alter
or
modify each other's original Products, (v) attempt to disable any security
devices or codes incorporated in each other's original Products, or (vi) allow
others to do any of the foregoing. Notwithstanding anything in this Section
11.5
to the contrary, in the event of a breach of this Agreement by either Joint
Venturer the terms of this Section 11.5 shall survive the expiration and/or
termination of this Agreement.
11.6 The
Joint
Venturers agree to comply with all export laws and restrictions and regulations
of the Department of Commerce or other United States or foreign agency or
authority and not to export, or allow the export or re-export of any Software,
Hardware, New Product and/or Documentation or any direct product thereof in
violation of any such restrictions, laws or regulations.
11.7 Joint
Venturers agree if either party is a contractor which will or may supply
Software or Hardware to a unit or agency of the U.S. Government (whether such
a
transaction is permitted by, or takes place in violation of this Agreement),
Joint Venturers acknowledge that (i) the Software and Hardware has been
developed at private expense and is commercially available at published prices,
(ii) all Software arid Hardware supplied to the Department of Defense ("DOD")
is
classified as "Commercial Computer Software" or "Commercial Off-The-Shelf
Hardware”. and the U. S. Government acquires only "restricted rights" in the
Software or Hardware as such rights are defined in clause 252.227-7013I(1)(ii)
of the DFARS (or any successor regulations), (iii) all Software or Hardware
supplied to any unit or agency of the U.S. Government other than the DOD, shall
be governed by clause 52.227-19(c) of the FAR (or any successor regulations)
or,
in the case of NASA, in clause 48 CFR 1827.4105(a) (or any successor
regulations) and, in any such case, the U.S. Government acquires only
"restricted rights" in the Software or Hardware.
11.8 The
Joint
Venture may from time to time purchase non-competitive goods and services from
other parties. The purchase of such goods and services will be agreed up by
the
Joint Venturers in writing.
| 12. |
PRICES,
REVENUE SHARE AND PAYMENT TERMS.
|
12.1 Prices.
Attached hereto as Addendum B "Retail Price List' is the Joint Venture's
products to be provided to each Joint Venturer and to various and sundry
marketing channels for distribution hereunder if (i) a "'Special Case Basis"
volume pricing is not applied, (ii) a revenue share model is not applied. Prices
shall be subject to change by the Joint Venture from time to time by ninety
(90)
days prior notice to the Joint Venturers and to the marketing channels,
provided, however, that no such price change shall affect orders accepted by
Joint Venture prior to notifying Resellers of such price change.
12.2 Revenue
Share.
The
Joint Venturers will share revenue on each sale of product which is marketing,
sold or otherwise transferred to a distribution channel or end-user on the
following basis: The Joint Venturer directly responsible for the initiation
and
completion of the sales effort sad who will be responsible for the ongoing
tier-one support and service of the client will receive a seventy-five percent
(75%) share of the gross revenues generated from the sale and the other Joint
Venturer will receive the balance of twenty-five percent (25%) of the gross
revenue from the sale.
12.3 Non-Recurring
Engineering (NRE).
Each
Joint Venturer may request the other to develop or customize New Products or
Services for the Project and each Joint Venturer will make best efforts to
comply. In situations where a Joint Venturer agrees to develop said New Product
as defined by the Project, the requesting Joint Venturer shall be assessed
an
NRE charge for such work. The NRE charge will be an aggregate total of cost
plus
20% in the case of NRE charges under $100,000 and cost plus 15% in cases where
the NRE charge exceeds $100,000. In either case the revenue share agreement
allowed for in Section 122 above, shall be modified to give the Joint Venturer
which was assessed the NRE charge the ability to take an override, preferential,
first-place commission (the "NRE Override”) of ten percent (10%) of the gross
revenue of ALL sales of said New Product or Service until such time the total
NRE charge paid to the other Joint Venturer is completely recovered, at which
time the NRE Override shall cease to exist for that specific New Product or
Service and the provisions set forth in Section 12.2 shall be in effect without
change.
12.4 Taxes.
The
prices set forth herein are exclusive of all government excise, sales, service,
use, occupational, withholding, or like taxes and accordingly, are subject
to an
increase equal in amount to any tax each Joint Venturer may be required to
collect or pay upon the licensing, delivery or installation of the Software,
Hardware or Services marketed hereunder. A Reseller or entity within the sales
and marketing channel may provide a tax exempt form showing its wholesaler
status.
12.5 Terms
of Payment_ Each
Joint Venturer will be responsible for payment of all charges as reflected
ors
any invoice or billing statement sent to Reseller for Software, Hardware or
New
Product ordered by Reseller. Any dispute of invoices or billing statements
must
be made in good faith and in writing within thirty (30) days of the invoice
date
and shall include detailed documentation to establish the basis for any
adjustment. Notification to either Joint Venturer of any contested or disputed
amount must be in writing and sent to the address set forth above in Section
4
of this agreement.
Written
notification must be accompanied with detailed written support and each Joint
Venturer will promptly address and attempt to resolve the claim. All undisputed
payments due to each Joint Venturer or to the Project hereunder, including
but
not limited to payments for Software, Hardware, New Product and Documentation,
shall be paid in U.S. Dollars drawn on a U.S bank without deduction for taxes,
the delivery costs or other charges of any nature whatsoever. For invoices
relating to direct cost as stipulated in Section 12.4 above, such payments
must
be paid to the Joint Venturer within thirty (30) days after receipt of invoice.
For revenue share, payments must be paid within ten (10) days after payment
is
received by Reseller.
12.6 Risk
of Loss.
All
risk of loss or damage to Software, Hardware, New Product and/or Documentation
after delivery F.O.B. Origin by either Joint Venturer or the Project to a
carrier for shipment to Reseller shall be borne by Reseller.
12.7 Inspection.
Software, Hardware, New Product and/or Documentation furnished by StreamTraX
shall be deemed accepted when they conform to StreamTraX published
specifications at the time of shipment to Reseller or its customer. Reseller,
or
its customer or designated agent, shall inspect all Software, Hardware, New
Products and/or Documentation it receives immediately upon arrival at
destination and shall, within ten (10) calendar days of arrival give written
notice to the freight forwarder and StreamTraX of any claim for damages or
shortages. Should Reseller fail to give such notice, or fail to obtain an
extension from StreamTraX, StreamTraX may be unable to assist Reseller in its
claims for damages or shortages.
| 13. |
ALLOCATION
OF PROFITS, LOSSES AND
TAXES.
|
13.1
The
net profits or net losses of the Joint Venture shall be allocated, credited
or
charged, as the case may be, to the Joint Venturers in equal shares of fifty
percent (50%) each. The terms "net profits" and "net losses," as used in this
Agreement shall be defined as gross receipts received by the Joint Venture
from
any and all sources in connection with the Property and all uses thereof and
ancillary rights thereto, less the aggregate of all costs, charges, fees and
expenses of the Joint Venture including, without limitation, third party gross
of net profit participations. For purposes of computing the Joint Venture's
net
profits and net losses, only the costs and expenses approved by both of the
Joint Venturers and incurred by either Joint Venturer directly on behalf of
the
Property or the Joint Venture shall be a charge against and shall reduce the
gross receipts of the Joint Venture in calculating the Joint Venturer’s net
profits or net losses.
13.2
Any
and all tax credits and/or deductions to which the Joint Venture shall become
entitled shall be allocated equally between the Joint Venturers in shares of
fifty, percent (50%) each.
| 14. |
BOOKS,
RECORDS AND BANK ACCOUNTS.
|
14.1
The
Joint Venture shall at all times throughout its existence, keep or cause to
be
kept, at the principal place of business of the Joint Venture or at such other
place as the Joint Venture may determine, books and accounting records for
the
business and operations of the Joint Venture. Such books shall be open to
inspection by the Joint Venturers, or their authorized representatives, during
reasonable working hours. The accounting for Joint Venture purposes, including
the determination of the Joint Venture's net profits and net losses shall be
in
accordance with generally accepted accounting principles consistently applied.
The Joint Venture shall engage the services of a Certified Public Accountant
who
shall be selected with the mutual approval of both Joint Venturers.
14.2 There
shall be maintained for each Joint Venturer a capital account and an income
account. Each Joint Ventures s distributive share of profits and losses, and
monthly and end-of-year withdrawals not previously posted shall be credited
or
debited to the respective Joint Venturer's income account as of the close of
the
calendar year. Thereafter, any debit or credit balance remaining in the income
account of a Joint Venturer shall be debited, or credited, as the case may
be,
to its respective capital account.
14.3 The
Joint
Venture shall be on a calendar year basis for accounting purposes (the Joint
Venture's "Fiscal Year'). As soon after the close of each Fiscal Year as is
reasonably practicable, a full and accurate accounting shall be made of the
financial affairs of the Joint Venture as of the close of each such Fiscal
Year.
When such accounting and accounting statement is made and provided to the Joint
Venturers, the net profit or the net loss sustained by the Joint Venture during
such Fiscal Year shall be ascertained and credited or charged, as the case
may
be, in the books of account of the Joint Venture in the proportions hereinabove
specified.
14.4 From
time
to time, but no less than annually, the Joint Venture shall make distributions
from the capital of the Joint Venture which shall be in excess of the reasonable
needs of the Joint Venture for working capital and reserves as mutually
determined by the Joint Venturers in accordance with Section 21 herein,
provided, however, that so long as any Joint Venturer has any indebtedness
or
other outstanding obligations to the Joint Venture, any distribution that would
otherwise be made shall first be applied toward any such indebtedness or other
obligations.
14.5 All
funds
of the Joint Venture shall be deposited into any account or accounts in the
name
of the Joint Venture at such bank or banks as may from time to time be selected
by the Joint Venture. A11 withdrawals from any such account or accounts shall
be
made by check or other written instrument which shall require the signature
of a
representative of each Joint Venturer.
|
15.
|
CONTRACTS
AND AGREEMENTS.
|
15.1 All
contracts or agreements to be entered into by, on behalf of, or for the benefit
of the Joint Venture must be signed by each of the Joint Venturers hereto,
it
being understood that no Joint Venturer shall have the right to bind the Joint
Venture with respect to the Property without the express written consent of
the
other Joint Venturers. If any contract or agreement is entered into by a Joint
Venturer without the express written consent of the other Joint Venturer, the
Joint Venturer purporting to enter into such unauthorized contract or agreement
on behalf of the Joint Venture shall indemnify and hold harmless the
non-contracting Joint Venturer from all claims, liabilities, damages and costs
(including attorneys’ fees and court costs) arising out of or pertaining to such
unauthorized contract or agreement.
15.2
The
proceeds of any contracts entered into by either Joint Venturer hereto for
the
personal services of a principal of such Joint Venturer must be completely
separate from the Joint Venture and in no way be a conflict with the Joint
Venture-
| 16. |
ORDERS
AND DELIVERY.
|
16.1
Orders
and Shipment.
The
Project or ether Joint Venturer shall place orders for products with each other
on their standard order form setting forth the name and address of each
Customer. No order shall be binding unless acknowledged and accepted in writing
by the receiving party. Each Joint Venturer shall confirm its acceptance or
rejection of an order within five (5) days after its actual receipt of such
order. The terms and conditions of this Agreement, as set forth herein, shall
prevail over any inconsistent or additional terms set forth in Reseller's
order.
16.2 Forecasts.
Joint
Venturers shall work closely with each other to maintain a working environment
that will attempt on a quarterly, non-binding, good faith basis to forecast
their anticipated requirements and shipping and delivery dates for the three
(3)
month periods following such forecasts- Each Joint Venturer shall also provide
each other backorder and inventory, which are customary for each to dispense
to
its vendors.
16.3 Deliverv.
Each
Joint Venturer shall use reasonable commercial efforts to have the products
delivered in the quantity and by the desired delivery date set forth in any
accepted order.
| 17. |
QUALITY
ASSURANCE.
|
17.1 The
Joint
Venture agrees to use its best efforts to support (including installation,
training and other support) the Software and Hardware on a continuing basis
to
the satisfaction of each Joint Venturer and to comply with good business
practices and all laws and regulations relevant to this Agreement or the subject
matter hereof.
17.2 Each
Joint Venturer agrees to keep each other informed as to any problems encountered
with the Software Hardware and/or New Products and any resolutions arrived
at
for those problems, and to communicate promptly to each other any and all
modifications, design changes or improvements of the Software, Hardware and/or
New Product suggested by any customer, employee or agent. Each Joint Venturer
further agrees that, subject to the terms set forth in Sections 7, 11.3 and
11.4, the owner of the intellectual property for said Product being improved,
changed or modified shall have any and all right, title and interest in and
to
any such suggested modifications, design changes or improvements of the
Software, Hardware and/or New Product without the payment of any additional
consideration therefore either to Reseller, or its employs, agents or
customers.
17.3 Each
Joint Venturer agrees not to advertise, promote or take other action or use
any
medium of advertising or promotion with respect to Software, Hardware, and/or
New Product that is not directed primarily to the Territory without the prior
written approval of contributing Joint Venturer, which such approval shall
not
be unreasonably withheld. It is understood that this Section 17.3 shall not
apply to customers of Project or either Joint Venturer.
17.4 Each
Joint Venturer shall assure that each copy of the Software, Hardware and/or
New
Product distributed by or through the Joint Venture to Customers shall include
all components of the Software, Hardware and/or New Product as prepackaged
by
contributing Joint Venturer or by the Project itself; such components shall
include, without limitation, disks or other media bearing labels, each Joint
Venturer's end user manuals and documentation.
17.5 Each
Joint Venturer agrees to keep for two (?) years after termination of this
Agreement records of all Software. Hardware and/or New Product sales and
Customers sufficient to adequately administer a recall of any Software, Hardware
and/or New Product and to fully cooperate in any decision by the Joint Venture
or either Joint Venturer, individually, to recall, retrieve and/or replace
any
Software, Hardware and/or New Product.
17.6 Each
Joint Venturer agrees to promptly notify each other of any infringement of
any
copyrights, Trademarks (as defined in Section 26) or other proprietary rights
relating to the Software, Hardware and/or New Product. Either Joint Venturer
may, in its sole discretion, take or not take whatever action it believes is
appropriate in connection with any such infringement. If either Joint Venturer
elects to take action, each Joint Venturer agrees to fully cooperate in
connection therewith. If a Joint Venturer initiates and prosecutes any action
under this Section 17.6, all legal expenses (including court costs and
attorneys’ fees) shall be for initiating party’s account and said initiating
party shall be entitled to all amounts awarded by way of judgment, settlement
or
compromise.
17.7 Each
Joint Venturer agrees to ascertain and comply with all applicable laws and
regulations and standards of industry or professional conduct, including,
without limitation, those applicable to product claims, labeling, approvals,
registrations and notifications, and also to obtain each other's prior written
consent to claims, labels, instructions, packaging or the like, which consent
shall not be unreasonably withheld.
17.8 Each
Joint Venturer agrees to keep and maintain sufficient numbers of trained
customer service representatives to adequately manage StreamTraX's products
as
they are presented in combination with each other's products or services for
purposes of customer service, and for a professional working environment between
the technical staffs of each Joint Venturer and the Project.
| 18 |
WARRANTIES.
|
| 18.1 |
Each
Joint Venturer hereby warrants and represents to the other that
it:
|
| a.) | Has the right and capacity to enter into this Agreement; |
| b.) |
Shall not encumber or sell any property, assets
or
intangible rights of the
Joint Venture without the written consent of
the other
Joint Venturer,
|
| c.) |
Shall not assign, transfer, mortgage, hypothecate,
encumber or otherwise
dispose its interest in the Joint Venture in
whole or in
part to any individual,
corporation or other entity without the written
consent
of the other Joint Venturer,
|
| d.) |
Shall not loan any funds or extend the credit
of the
Joint Venture to any
person or
entity without the written consent of the other Joint
Venturer;
|
| e.) |
Shall not incur any cost, expense, liability
or
obligation in the name or on the
credit of the Joint Venture without the written
consent
of the other Joint Venturer.
|
18.2 Limited
Warrantv of Performance.
Each
Joint Venturer warrants to other that each copy of the Software or piece of
Hardware will, under normal use, conform to the limited warranty contained
in
Joint Ventu'er's then-current form of Software or Hardware License Agreement
applicable to such Software or Hardware during the warranty period set forth
in
such Agreement (the "Warranty Period"). The foregoing warranty will apply only
to the most current version of the Software or Hardware issued by the Joint
Venturer from time to time. Each Joint Venturer assumes no responsibility for
claims resulting from the distribution of superseded, outdated, or uncorrected
versions of the Software or Hardware. In the event either Joint Venturer grants
a warranty to any Customer exceeding the foregoing limited warranty (the “Excess
Warranty''), the granting Joint Venturer shall indemnify the other Joint
Venturer and hold the other Joint Venturer harmless from and against any
judgment, damage, liability, or expenses, including reasonable attorney’s fees,
arising out of any claim with respect to the breach or alleged breach of such
Excess Warranty by the ranting Joint Venturer.
18.3 Exclusive
Remedy.
If a
Customer contacts either Joint Venturer during the Warranty Period claiming
a
breach of the warranty provided in the then-current Software or Hardware License
Agreement provided by Reseller to that Customer, the Joint Venturer will use
reasonable efforts to resolve the claim directly with such Customer by
correcting or replacing such Software or Hardware. If a Customer contacts
Reseller during the Warranty Period claiming any such breach of warranty,
Reseller shall promptly refer the matter to the manufacturing Joint Venturer.
If
the Joint Venturer is unable to correct or replace any nonconforming Software
or
Hardware, it will so notify the Customer, and Reseller agrees to accept for
a
full refund any such defective Software or Hardware that the Joint Venturer
has
been unable to correct or replace. In such event, the Joint Venturer shall
refund to Reseller any amounts paid by the Reseller to the Joint Venture for
the
nonconforming Software or Hardware. Reseller's sole and exclusive remedy in
the
event of any such claim, if verified, is expressly limited to (i) the correction
or replacement of such defective Software, Hardware and/or Documentation by
Joint Venturer at its election and sole expense; or (ii) the refund to Reseller
of the amounts paid to the Joint Venture for such software.
18.4 Disclaimer.
No
representation or other affirmation of fact not set forth herein, including
but
not limited to statements regarding capacity, suitability for use, or
performance of the Software or Hardware, shall be or be deemed to be a warranty
or representation by the Joint Venturers for any purpose, nor give rise to
any
liability or obligation of the Joint Venturers whatsoever. Except as
specifically provided in this agreement, there are no other warranties express
or implied including but not limited to any implied warranties of
merchantability, fitness for a particular purpose or
non-infringement.
18.5
Survival.
The
provisions of this Section 18 shall survive the expiration and/or termination
of
this Agreement.
| 19. |
INDENIIIFICATION.
|
Each
Joint Venturer hereby agrees to mutually indemnify, defend and hold harmless
each others affiliates, officers, directors and employees from and against
any
liability, loss, damage, cost and expense (including attorneys' fees and cost
of
litigation) arising out of or in connection with any claim or action which
any
person or entity may file or threaten to file against the Parties or its
officers, directors, employees or agents relating to the acts of omissions
of
the Parties under this Agreement or the provision of Services hereunder. The
indemnification provided herein shall survive the termination of this Agreement
and the termination of any services provided pursuant to this Agreement.
Notwithstanding any other provisions of this Agreement, the officers, directors,
employees and agents of the Parties shall have no liability to the other, under
this Agreement or in conjunction with the Services to be provided
hereunder.
| 20. |
DISSOLUTION
AND TERMINATION.
|
20.1 The
Joint
Venture shall be dissolved and terminated and its business wound up upon the
first to occur of the following:
a.) The
expiration of the term referred to in Section 5 above;
b.) The
mutual agreement of the Joint Venturers;
c.) The
operation of law; or
d.) A
material breach of this Agreement by either Joint Venturer, if such breach
is
not cured
within
ten (10) days after written notice thereof has been prolvzded to the breaching
Joint
Venturer
by the non-defaulting Joint Venturer. Only the non-defaulting Joint Venturer
shall
have
the
right to terminate the Joint Venture pursuant to this paragraph. Such
termination shall
not
release the defaulting Joint Venturer from any obligations or liabilities to
the
other Joint
Venturer,
whether pursuant to the provisions of this Agreement or at law or in
equity.
20.2 Upon
termination of the Joint Venture, the business of the Joint Venture shall be
closed out and assets and properties of the Joint Venture shall be liquidated.
Upon the happening of any one of the events of dissolution mentioned above,
the
Joint Venture shall engage in no further business, other than that necessary
to
protect the assets of the Joint Venture, close out its business and distribute
its assets as provided for herein.
| 21. |
DISTRIBUTIONS.
|
21.1 Distributions
Other than Upon Liquidation.
Distributions of available cash shall be made at such tithes and in such amounts
as in the discretion of the Joint Venturers, the business, the affairs and
the
financial circumstances of the Joint Venture permit.
21.2 Distributions
of Assets on Dissolution and Liquidation.
Upon
dissolution and liquidation of the Joint Venture, the assets of the Joint
Venture shall be liquidated in an orderly manner (subject, however, to the
terms
of Section 21.4, hereof), with a view toward maximizing the proceeds from such
liquidation, and the proceeds thereof shall be distributed in the following
order of priority
a.) The
expenses of liquidation and the debts of the Joint Venture, other than debts
owing to
the
Joint Venturers, shall be paid;
b.) Debts
owing to the Joint Venturers, if any, shall be paid;
c.) Distributions
shall be made to the Joint Venturers of amounts equal to their respective
capital
account
balances, if any, which shall be made in the ratio of their respective
capital
account balances;
d.) Any
funds
remaining after the amounts described in the foregoing Sections 21.2 (a.),
(b.)
and
(c.) have been paid shall be distributed to the Joint Venturers in the
proportion
in
which
the Joint Venturers share the net profits of the Joint Venture at the time
of
such
distribution.
21.3 If
the
Joint Venturers have not sold the assets of the Joint Venture, except as
otherwise provided in Section 21.4 hereof, within two (2) years following
dissolution, then there shall be distributed to the Joint Venturers as tenants
in common, subject to the foregoing Sections 21.2. (a.), (b.), (c.) and (d.)
of
this Section 21, undivided interests in the assets of the Joint Venture, as
valued and constituted on that date.
21.4
Tenants
In Common.
If all
of the rights in the Property have not been disposed of by the Joint Venture
prior to such dissolution, the Joint Venturers hereby agree that upon
dissolution of the Joint Venture any and all patents, copyrights and other
intellectual property held by the Joint Venture shall be promptly transferred
to
and belong, in shares of fifty percent
(50%) to each Joint Venturer respectively, as tenants in common, and in
furtherance thereof the Joint Venturers agree to promptly execute all necessary
and proper assignments and/or other documents to effectuate such
transfers.
| 22. |
GAIN
OR LOSS DURING
DISSOLUTION.
|
Any
gain
or loss arising out of the disposition of assets of the Joint Venture during
the
course of dissolution shall be borne by the Joint Venturers in the sane
proportion as such gain or loss was shared by the Joint Venturers pursuant
to
this Agreement immediately prior to dissolution.
| 23. |
BUSINESS
OPPORTUNITTIES AND CONFLICTS OF
INTEREST.
|
23.1 Either
of
the Joint Venturers may engage in or possess an interest in any other business
venture of every kind, nature and description, including ventures or enterprises
which may compete with the Joint Venture, and neither the Joint Venture nor
either of its Joint Venturers shall have any rights in and to said business
ventures, or to the income or profits derived there from-
23.2 No
Joint
Venturer shall be obligated to offer any investment or business opportunities
to
the other Joint Venturer or to the Joint Venture. Any Joint Venturer may invest
or otherwise participate in such opportunities without notice to the Joint
Venture or to the other Joint Venturer, without affording the Joint Venture
or
the other Joint Venturer any opportunity of participating in such business
opportunity and without any liability whatsoever to the Joint Venture or to
the
other Joint Venturer. Each Joint Venturer hereby waives any right it may have
against the other Joint Venturer for capitalizing on information learned as
a
consequence of its connection with the affairs of the Joint
Venture.
23.3 Protected
Contacts.
Each
Joint Venturer shall provide to Project a mutually agreed upon list of
individuals and business entities (the "Contacts"), which shall be included
in
this Agreement as Addendum C "Schedule of Protected Contacts" to which each
Joint Venturer, in their Corporate Reseller status and relationship with the
Project, is entitled to receive compensation as referenced in Section 12.2
above. This list shall be comprised of but not limited to the following
information: Business Name, Contact Person, :Address, Phone Number and Joint
Venture Product and/or Service, which Reseller is representing to said Contact.
This list shall be updated on a quarterly basis and the Reseller shall be
granted an exclusive right to represent StreamTraX's Products and/or Services
to
said Contacts for a period equal to the term of this agreement with the
exception of the following: If a Contact does not contract or start negotiations
of a contract with the Joint Venture within a period of one hundred and eighty
(180) days from the time said Contact is listed on Addendum C referenced above,
then the Joint Venturers shall have the right to, but not necessarily the
obligation to declare themselves free from any requirement of exclusivity or
protected contact status as set forth above. Each Joint Venturer further
warrants and agrees to (i) not to circumvent or attempt to circumvent or permit
another, directly or indirectly, to circumvent the proprietary rights or
contacts of each other in their relationship with the Contacts listed on
Addendum C, (ii) not to use any proprietary information disclosed by each other
or the Contact listed on Addendum C for anything except the intended purpose,
nor to use such proprietary information for independent development, nor to
use
it directly or indirectly with any third party or parties, all of which
non-circumvention obligations shall survive for the term of this Agreement
or
for two (2) years thereafter if the agreement is terminated by either Joint
Venturer for any cause other than criminal, ethical or misrepresentation
reasons.
| 24. |
MARKETING
AND ADVERTISTNG.
|
24.1 Reseller's
Undertaking-
Each
Joint Venturer, as a Reseller, shall exert its best efforts to promote and
market the products in the Territory and to develop a market demand for the
same
in the Territory. The Joint Venturers shall advertise the products throughout
the Territory in appropriate advertising media and in a manner insuring proper
and adequate publicity for the products. Each Joint Venturer represents that
all
advertising and marketing materials relating to the products of the Joint
Venture or of each other shall be accurate in all respects. Each Joint Venturer
shall maintain a well -staffed marketing organization which can be appropriately
utilized for the promotion of the products in the Territory- Each Joint Venturer
agrees to participate in fairs and Exhibitions to market the products in the
Territory. Each Joint Venturer agrees to maintain such numbers of trained
personnel in the other's products and the Products and Services of the Joint
Venture as to adequately facilitate sales and marketing efforts relative to
those products. Such personnel at each Joint Venturer's expense are invited
to
attend each other's training sessions to be established and reasonably published
prior to such sessions.
24.2 Use
of
Sub Dealers.
Other
than the Joint Venturer's Wholesale customers. Each Joint Venturer shall not
appoint, hire or otherwise engage sub dealers as set forth in Sections 6. (7),
(8),(9) to market or distribute the Joint Venture's Software, Hardware or New
Products without the express written consent of each Joint Venturer and such
approval shall not be unreasonably withheld.
24.3 Promotional
Materials.
The
Joint Venturers agree to provide each other, at no cost to the other, such
promotional materials for the Software and/or Hardware in camera ready or
electronic format as each Joint Venturer generally makes available to its
resellers, including technical specifications, prices, drawings, and each Joint
Venturer may reproduce such materials as reasonably required in connection
with
its promotional, advertising and/or marketing activities, provided that all
copyright, trademark and other property markings are reproduced. Each Joint
Venturer may also purchase hard copies of such materials at each Joint
Venturer's published prices. Such materials, including all copies and
reproductions made by each Joint Venturer, remain the property of the other
Joint Venturer and, except insofar as they are distributed by each Joint
Venturer in the course of its performance of its duties under this Agreement,
must be promptly returned to the Joint Venturer upon the expiration or
termination of this Agreement.
24.4 Distribution
of Software in Each Joint Venturer's Packaging.
If
applicable, each Joint Venturer hereby agrees to advertise, market, sell and
distribute the Software and/or Hardware solely in the packaging provided by
each
Joint Venturer in that Joint Venturer's sole discretion. In its distribution
efforts, each Joint Venturer will use the then current names, marks and
designations used by each Joint Venturer for the Software or Hardware
(`'Trademarks") but will not represent or imply that it is the other Joint
Venturer or is a par: of the other Joint Venturer, provided that all
advertisements and promotional materials, packaging and anything else bearing
a
Trademark shall identify each Joint Venturer as the Trademark owner and Software
or Hardware manufacturer, further provided that any use of the Trademarks shall
be governed by Section 26.3.
| 25. |
MAINTENANCE
AND OTHER SUPPORT.
|
Each
Joint Venturers agree to make available to each other and Customers second
tier
support and maintenance. Each Joint Venturer will provide the training needed
to
each other and to the Joint Venture so they may provide tier one
support.
| 26. |
PROTECTION
OF PROPRIETARY RIGHTS.
|
26.1 Acknowledgement
of Proprietary Materials.
Each
Joint Venturer hereby acknowledges that the Software, Hardware and Documentation
offered for resale by the other Joint Venturer are protected by the patent
and
copyright laws of the United States and other countries and that the Software,
Hardware and Documentation embody valuable confidential and trade secret
information of that Joint Venturer, the development of which required the
expenditure of considerable time and money by the Joint Venturer. Each Joint
Venturer hereby agrees to hold the Software, Hardware and Documentation,
together with any other confidential information and data made available to
it
or the Project by each Joint Venturer, in confidence and agrees not to use,
copy, or disclose, nor permit any of its personnel to use, copy, or disclose
the
same for any purpose that is not specifically authorized herein. For the
purposes of this Section 26.1, the terms and conditions of this Agreement are
confidential information of each of the Joint Venturers.
26.2 Proprietary
Markings.
Each
Joint Venturer hereby agrees to ensure that all copyright. trademark and other
proprietary notices of the Joint Venture or of each other affixed to or
displayed on the Software, Hardware, New Product and Documentation will not
be
removed or modified.
26.3 Trademarks.
(a.)
Acknowledgement
of Rights in Trademarks.
Each
Joint Venturer acknowledges that the Joint Venture and each Joint Venturer
individually are the owner of all right, title and interest in and to their
Trademarks, together with any new or revised names, designs or designations
which each may adopt to identify it or any Software and/or Hardware during
the
Term, and each Joint Venturer agrees not to adopt or use any of the Trademarks
in any manner whatsoever except as expressly provided in this
Agreement.
(b.)
License
to use Trademarks.
The
Joint Venture and each Joint Venturer hereby grant
to each
other a license during the Term to use the Trademarks in the Territory, provided
that they are used solely in connection with the marketing, and distribution
of
the Software, Hardware and/or New Product and in accordance with each Joint
Ventu'er's specifications as to style, color and typeface and such use shall
be
subject to prior written approval of the Joint Venture or each Joint Venturer,
which approval shall not be unreasonably withheld, and, provided further, that
no other right to use any name or designation is granted by this Agreement.
Upon
expiration or termination of this Agreement, each Joint Venturer will take
all
action necessary to transfer and assign to the parent Joint Venturer, or its
nominee, any right, title or interest in or to any of the Trademarks, and the
goodwill related thereto, which Joint Venturer may have acquired in any manner
as a result of the marketing and distribution of Software or Hardware under
this
Agreement and each Joint Venturer shall cease to use any Trademark of other
Joint Venturer. Each Joint Venturer hereby agrees to notify each other
immediately upon Joint Venturer having knowledge of any infringement or
potential infringement of any Trademark in the Territory.
(c.)
Registration.
Each
Joint Venturer agrees not to apply for registration of any Trademarks in the
Territory for like or similar Products or for any xxxx confusingly similar
thereto unless agreed upon by each Joint Venturer- Each Joint Venturer may
elect
to apply for registration of one or more of the Trademarks in the Territory
at
its expense, and, in such event, the Joint Venturer shall so notify the other
and each Joint Venturer shall assist and cooperate with each other in connection
therewith. Reseller also agrees not to use or contest, during or after the
term
of this Agreement, any Trademark, name, xxxx or designation used by the Joint
Venturer anywhere in the world (or any name, xxxx or designation similar
thereto). Each Joint Venturer acknowledges and agrees that all use of the
Trademarks by each other shall inure to the benefit of the parent or owner
Joint
Venture.
26.4
Survival.
The
provisions of this Section 26 shall survive the expiration and/or termination
of
this Agreement.
| 27. |
LIMITATION
OF LIABILITY; INJUNCTIVE RELIEF.
|
27.1 No
Consequential Damages; Limitation of Liability.
In no
event shall either Joint Venturer be liable with respect to any subject matter
of this Agreement for loss of profits or incidental, indirect, special,
consequential or other similar damages under any contract, negligence, strict
liability or other legal or equitable theory. Except as provided in Section
28
below, the liability of each Joint Venturer for any claim arising out of or
in
connection with this Agreement shall not exceed the amount paid to each Joint
V
enturer by the Project or fine other Joint Venturer with respect to the specific
items of Software or Hardware giving rise to such claim.
27.2 Injunctive
Relief.
Each
Joint Venturer acknowledges that any breach of its obligations under this
Agreement with respect to the proprietary rights or confidential information
of
the Joint Venture or the other Joint Venture will cause the Project or the
individual Joint Venturer irreparable injury for which there are inadequate
remedies at law, and therefore each Joint Venturer will be entitled to
injunctive relief in addition to all other remedies provided by this Agreement
or available at law.
27.3 Survival.
The
provisions of this Section 27 shall survive the expiration and/or termination
of
this Agreement.
| 28. |
DEFENSE
OF INTELLECTUAL PROPERTY
CLAIMS.
|
If
notified promptly in writing of any action (and all prior claims relating to
such action) against a Joint Venturer based on a claim that the Joint Venturer's
distribution and/or use of the Software or Hardware infringes a United States
patent, copyright or other U.S. intellectual property right, and if given access
by Joint Venturer to any information Joint Venturer has regarding such alleged
infringement, each Joint Venturer agrees to defend the other in such action
at
its expense and will pay any costs or damages finally awarded against the Joint
Venturer in any such action, provided each Joint Venturer shall have had sole
control of the defense of any such action and all negotiations for its
settlement or compromise. In the event that a final injunction shall be obtained
against the Joint Venturers distribution and/or use of the Software or Hardware,
or any part thereof, by reason of infringement of a United States patent or
other United States intellectual property right, each Joint Venturer will,
at
its option and at its expense, either procure for the other the right to
continue using the Software or Hardware, modify the same so it becomes
non-infringing or grant the Joint Venturer a credit for such Software or
Hardware and accept its return. Each Joint Venturer shall not have any liability
to each other under any provision of this clause if any infringement, or claim
thereof, occurs outside of the United States or is based upon: (i) the use
of
the Software or Hardware in combination with other computer hardware or software
programs which are not made by the Joint Venturer or (ii) the Software or
Hardware has been modified by other Joint Venturer without authorization. Each
Joint Venturer shall indemnify the other and hold it harmless against any
expense, judgment or loss for infringement of any patent or other intellectual
property right which results from the exceptions set forth in the immediately
preceding sentence of this Section 28. No costs or expenses shall be incurred
for the account of each Joint Venturer without the written consent of that
Joint
Venturer. The foregoing states the entire liability of each Joint Venturer
with
respect to infringement of patents or other intellectual property right by
the
Software, Hardware or any part thereof, or by its operation.
| 29. |
REPORTS
AND RECORDS.
|
Records.
Each
Joint Venturer agrees to maintain copies of all documentation relating to the
distribution of Software or Hardware under this Agreement. If requested in
writing by each other, each Joint Venturer shall permit the other to have access
to such documentation at Joint Ventu'er's place of business during ordinary
business hours.
| 30. |
RELATIONSHIP
OF PARTIES.
|
Independent
Contractor Status.
Nothing
contained in this Agreement shall be construed to constitute each Joint Venturer
as a partner, employee or agent of each other, nor shall each Joint Venturer
hold himself out as such except as set forth herein this Agreement as Joint
Venturers in this Project. Each Joint Venturer has no right or authority to
incur, assume or create, in writing or otherwise, any warranty, liability or
other obligation of any kind, express or implied, in the name of or on behalf
of
each other, it being intended by both Joint Venturers that each shall remain
an
independent contractor responsible for its own actions. Each Joint Venturer
agrees to indemnify and hold the other harmless from and against any damage
or
expenses, including reasonable attorney's fees, arising out of a breach of
the
provisions of this Section 30.
|
30.
|
MISCELLANEOUS.
|
30.1 Force
Majeure.
If the
performance of any obligation (other than for payment) under this Agreement
is
prevented, restricted or interfered with by reason of war, revolution. civil
commotion, acts of public enemies, blockade, embargo, strikes, any law, order,
proclamation, regulation, ordinance, demand, or requirement having a legal
effect of any government or any judicial authority or representative of any
such
government, or any other act whatsoever, whether similar or dissimilar to those
referred to in this Section 30.1, which is beyond the reasonable control of
the
party affected, then the party so affected shall, upon giving prior written
notice to the other party, be excused from such performance to the extent of
such prevention, restriction, or interference, provided that the party so
affected shall use reasonable commercial efforts to avoid or remove such causes
of nonperformance, and shall continue performance hereunder with reasonable
dispatch whenever such causes are removed.
30.2 Insolvencv
or Sale of Business Entity. Product or Service.
Concurrent with this Agreement, the Joint Venturers shall severally and jointly
agree that if either Joint Venturer shall become insolvent or shall enter into
an agreement to liquidate assets or shall exercise any form of exit strategy
whereby the full right, control and use of any, or all products or services
contributed to the Joint Venture shall change, then at such time one original
code copy of the Software and Hardware specifications, plans, and agreements
shall become the property of the Joint Venture without limitation to continue
to
enjoy the sole and exclusive rights thereto as specified in Section I l
hereof.
30.3 Applicable
Law.
Any
claim or controversy relating in any way to this Agreement shall be governed
and
interpreted exclusively in accordance with the laws of the State of Kansas
and
the United States without regard to the United Nations Convention on Contracts
for the International Sale of Goods.
30.4 Arbitration.
All
disputes arising in connection with this Agreement shall be finally settled
by
arbitration before the American Arbitration Association in accordance with
its
then-effective Commercial Dispute Resolution rules, before one (1) arbitrator
appointed in accordance with said rules. The place of arbitration shall be
the
County of Sedgwick, m the State of Kansas. The arbitrator shall determine the
matters in dispute in accordance with the laws of Kansas pursuant to Section
30.3 of this Agreement. Notwithstanding the above, each Joint Venturer has
the
right to bring suit in a court of competent jurisdiction against each other
for
(i) any breach of the Joint Venturer's duties of confidentiality pursuant to
Section 26 of this Agreement, and (ii) any infringement by each Joint Venturer
of the other's proprietary rights; and each Joint Venturer hereby agrees that
all such suits may in the suing Joint Venturer's sole discretion be initiated
in
a state or federal court located in the State of Kansas and, accordingly,
irrevocably consents to the jurisdiction and to the service of process,
pleadings and notices in connection with any and all actions and processes
initiated in the state or federal court located in Kansas. This provision shall
survive the expiration and/or termination of this Agreement.
30.5 Statute
of Limitations.
Any
action by either Joint Venturer for breach of these terms and conditions must
be
commenced within one (1) year after the cause of action has
accrued.
30.6 Partial
Illegality.
If any
provision of this Agreement or the application thereof to any party or
circumstances shall be declared void, illegal or unenforceable, the remainder
of
this Agreement shall be valid and enforceable to the extent permitted by
applicable law. In such event, the parties shall use their best efforts to
replace the invalid or unenforceable provisions by a provision that, to the
extent permitted by the applicable law, achieves the purposes intended under
the
invalid or unenforceable provision. Any deviation by either party from the
terms
and provisions of this Agreement in order to comply with applicable laws, rules
or regulations shall not be considered a breach of this Agreement.
30.7 Waiver
of Compliance.
Any
failure by each Joint Venturer hereto to enforce at any time any term or
condition under this Agreement shall not be considered a waiver of that party's
right thereafter to enforce each and every item and condition of this
Agreement-8 Notices.
All
notices and other communications in connection with this Agreement shall be
in
writing and shall be sent to the respective parties at the following addresses,
or to such other addresses as may he designated by the parties in writing from
time to time in accordance with this Section 30.8, by registered or certified
air mail, postage prepaid, or by express courier service, service fee prepaid,
or by telefax with a hard copy to follow via air mail or express courier service
in accordance with this Section 30.8.
| To ESPRE: | 0000 Xxxx Xxxxx Xxxxxxx | |
| Xxxxx 0000 | ||
| Xxxxx, XX 00000 | ||
| Attention: Xxx Loan | ||
| With copyto: File | ||
| To Reseller. | 0000 Xxxxxxxxx Xx | |
| Xxxxxxx XX 00000 | ||
| Attention: Xxxx Xxxxx | ||
All
notices shall be deemed received (i) if liven by hand, immediately, (ii) if
liven by air mail, five (5) business days after posting, (iii) if given by
express courier service, three (3) business days after delivery to courier
service, or (iv) if given by telefax, upon receipt thereof by the recipient's
telefax machine as indicated either in the sender's identification line produced
by the recipient's telefax machine or in the sender's transmission confirmation
report as produced electronically by the sender's telefax machine.
30.9 Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed to
be
an original and all of which together shall be deemed to be one and the same
instrument. The parties have caused this Agreement to be executed by their
respective duty authorized representative as of the Effective Date.
30.10 Remedies.
The
remedies provided for herein or otherwise available to the Joint Venturers
shall
be cumulative and no one such remedy shall be exclusive of any other and the
exercise of any one shall not preclude the exercise or be deemed a waiver of
any
other remedy nor shall the specification of any remedy exclude or be deemed
to
be a waiver of any right or remedy at law or in equity which may be available
to
a Joint Venturer including any rights to damages or injunctive
relief.
30.11 Consents.
Any and
all consents and agreements provided for or permitted by this Agreement shall
be
in writing and a signed copy thereof shall be filed and kept with the books
of
the Joint Venture.
30.12 Written
Amendment.
This
Agreement may not be amended or changed except by a written instrument duly
executed by each of the Joint Venturers.
30.13 Additional
Documents.
Each
Joint Venturer shall execute and deliver any and all additional papers,
documents and other instruments and shall do any and all further acts and things
reasonably necessary in connection with the performance of its obligations
hereunder to carry out the intent of the Joint Venture.
30.14 Entire
Agreement.
This
Joint Venture Agreement and its associated Reseller provisions between ESPRE
and
GreaTraX constitutes the entire agreement between the parties hereto and
supersedes all previous negotiations, agreements and commitments with respect
thereto, and shall not be released, discharged, changed or modified in any
manner except by instruments signed by duly authorized officers or
representatives of each of the parties hereto. No course of prior dealing
between the parties and no usage of the trade shall be relevant to supplement
or
explain any term used herein. Acceptance or acquiescence in a course of
performance rendered hereunder shall not be relevant to determine the meaning
of
these terms and conditions even though the
accepting or acquiescing party has knowledge of the performance and opportunity
for objection.
IN
WITNESS WHEREOF, this
Agreement is executed as of the date and year first above written.
| ESPRE Solutions, Inc. | GreaTraX, LLC | |
| /s/ Xxxxx Xxxxxx | Authorized Signature | |
| Authorized Signature | ||
| Xxxxx Xxxxxx | ||
| Printed Name | Printed Name | |
|
5/17/05
|
||
| Date | Date |
Addendum
A
Products
for Resale by Joint Venture
ESPRE
Solutions Inc. Products
eViewMail
eViewMail is a is a total email marketing system. With eViewMail a customer
will
be able to record a professional quality video email message while online or
upload pre-recorded videos and encode the messages in the exclusive eViewMail
format. ESPRE Solutions provides a total turnkey solution including hosting,
video services and private labeling options.
eViewStream
eViewStream is wavelet based video encoding technology that delivers unsurpassed
video streaming quality over the internet even at low bandwidths.
eViewLink
eViewLink is a wireless, portable, hands free video conferencing system that
puts the power of expert assistance, command and control and job monitoring
into
a PDA. The system was designed to communicate over a WiFi (802.11 b) network
to
anywhere in the word an expert resides. All the expert needs is an internet
connection and they cast see, hear and obtain telemetry information from
anywhere the portable is activated.
eViewChat
eViewChat is a Multipoint (PC to PC) Video Conferencing system designed to
work
without the add of a conference bridge and can handle up to eight simultaneous
video conference calls right from the desktop. eViewChat is standards compliant
and supports a wide range of image sizes, frame rates and bit rates to optimizes
conferencing bandwidth requirements.
GreaTraX
LLC Products
TBD
Addendum
B
Retail
Price Lists
To
be
filled in at a later time.
Addendum
C
Schedule
of Protected Contacts
To
be
filled in at a later time.
