SALES AGREEMENT
THIS AGREEMENT made and entered into this _____ day of _________, 2004, by and
between SERVICES BY DESIGNWISE, LTD., an Illinois Corporation, (hereinafter
referred to as "Seller") and TECHALT, INC., a Nevada Corporation, (hereinafter
referred to as "TechAlt" or "Buyer"). Seller and Buyer collectively shall be
referred to as the "Parties."
For consideration given, the receipt and sufficiency of which is hereby
acknowledged, IT IS AGREED:
l. Sale and Purchase.
Subject to the terms and conditions of this Agreement, Seller shall sell
and deliver, and Buyer shall purchase and accept delivery of a minimum
purchase requirement of $1,250,000.00 ("Exclusive Purchase Requirement")
per year as a non-exclusive manufacturing agreement during each year of
the term of "Directly Supplied Goods." "Directly Supplied Goods" shall be
defined as (i) cameras, portable camera systems and stands, fixed
communication modules, mobile VHS, recording and camera systems with
viewing consoles and without viewing consoles, camera systems, (ii) any
and all goods specified in the TechAlt / IBM contract relating to the Xxxx
County project dated on or about September 7, 2004 ("IBM Contract") as it
relates to the items set forth in subparagraph (i) hereinabove, and (iii)
other potential new TechAlt products that may be developed and assigned to
the Seller for production, with Seller's consent which will not be
unreasonably withheld, for production during the term of this Agreement.
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In addition, the Seller shall receive a royalty ("Royalty") as described
in Section 3.b. on all of Buyer's requirements of third party supplied
goods not purchased from Seller, ("Third Party Supplied Goods") including
goods produced directly by Buyer as standardized products to be sold to
end user customers. For purpose of this Agreement, the term "Third Party
Supplied Goods" shall be defined as all equipment and/or systems purchased
or produced directly by Buyer (except for Directly Supplied Goods
purchased from Seller), including without limitation, (i) TechAlt supplied
vehicle mounted equipment and all customized camera systems, i.e.,
portable camera stands, and all "combination fixed systems," i.e., fixed
communication modules, (ii) all goods related to the IBM Contract, (iii)
all mobile communications modules, involving integration of multiple
wireless protocols into a single delivery systems for mobile IP data
communications that encrypts and authenticates data, streams video and
selects the strongest communication channel, and mobile digital video
recording and camera systems including document capture and data storage
capabilities and any combination of these products, other camera systems,
and (iv) other potential new TechAlt products that may be developed for
production by third parties during the term of this Agreement.
2. Quantity of Directly Supplied Goods.
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Pursuant to this Agreement and pursuant to a written blanket purchase
order to be submitted by Buyer to Seller, Buyer shall purchase from Seller on a
monthly basis a minimum requirement of Directly Supplied Goods in the amount of
$104,167 per month ("Monthly Purchase Requirement"), i.e., $1,250,000 of
Directly Supplied Goods on a yearly basis. The Buyer shall supply on a monthly
basis a forecast of Directly Supplied Goods for the following three (3) months
which will be a non-binding best estimate. During any year of the term, Buyer's
purchases in excess of the Monthly Purchase Requirement may be offset by Buyer
against shortfalls of purchases during a subsequent month; provided however,
there shall be no offset allowed from one "Year" of the term to the next. For
purpose of this Agreement, the term "Year" shall mean the twelve-month period
beginning on the first day of this Agreement and every twelve-month period
thereafter beginning on the anniversary of the first day of this Agreement.
3. Price.
a. The pricing for the Directly Supplied Goods shall be as reasonably
determined by Seller consistent with fair market cost and the pricing
Seller has previously charged the Seller for Directly Supplied Goods.
Seller agrees that the cost of the material components contained in the
Directly Supplied Goods which are supplied to Seller from third-parties
(excluding all other elements of the purchase price, including without
limitation, reasonable profit margin, labor, shipping, taxes and overhead)
shall not exceed the cost of said material components paid by Seller
multiplied by fifteen percent (15%). Upon written request, Seller shall
provide Buyer a xxxx of materials (BOM) for Directly Supplied Goods
produced for the Buyer that itemizes the cost of each component and all
materials and Seller shall acknowledge that the BOM is factually true and
accurate to the best of its knowledge.
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b. For Third Party Supplied Goods, Seller shall be entitled to, and Buyer
shall pay to Seller, a Royalty on all Third Party Supplied Goods purchased
and/or used by Buyer. For purpose of this subparagraph, the Parties agree
that the computation of the Royalty shall be based on the purchase price
of the Third Party Supplied Goods actually paid by Buyer to third party
non-affiliated suppliers ("Third Party Suppliers), or that would be paid
by Buyer if purchased from a Third Party Supplier ("Purchase Price"), and
not on quantity or any other computation. Buyer agrees that in calculating
the Royalty, the Parties shall include in the definition of Third Party
Supplied Goods, goods supplied by Third Party Suppliers, and Buyer's
requirements that are produced directly by Buyer or an affiliate of Buyer
(other than prototype products used as models for a product research and
development process or a manufacturing planning process). During the term
of this Agreement, the Royalty shall be a percentage of the Purchase Price
as follows:
Year 1 6.25%
Year 2 6.50%
Year 3 and thereafter 6.75%
4. Payments.
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Payments shall be due as follows:
a. Payment shall be due within thirty (30) days from the date of
delivery to Buyer of the Directly Supplied Goods or Third Party
Supplied Goods;
b. Buyer shall receive a one percent (1%) credit for any payments made
for Directly Supplied Goods within ten (10) days of delivery of said
Directly Supplied Goods;
c. All sums remaining due and owing after expiration of the due date
for payment shall accumulate interest at an annualized rate of
twelve percent (12%).
d. In the event a purchase order given from Buyer to Seller would cause
the amounts owed hereunder from Buyer to Seller to exceed Two
Hundred Twenty Five Thousand Dollars ($225,000.00), Seller shall not
be obligated to deliver said order or subsequent orders to Buyer
unless Buyer delivers to Seller an irrevocable and unconditional
letter of credit from a source acceptable to Seller, which
acceptance shall not be unreasonably withheld, for any amount owed
from Buyer to Seller in excess of Two Hundred Twenty Five Thousand
Dollars ($225,000.00).
e. Buyer shall pay all sales taxes attributable to the purchases
hereunder, if any, costs of insurance during transportation and
transportation and delivery costs.
f. Buyer agrees to provide or provide payment for any fixturing or
specialized equipment necessary for the manufacturing and testing of
the Directly Supplied Goods.
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g. Buyer does hereby grant to Seller a purchase money security in the
Directly Supplied Goods and in Buyer's inventory and accounts
receivable attributable to such Directly Supplied Goods which
security interest shall be released as the Directly Supplied Goods
are paid by Buyer.
5. Place of Delivery.
The Directly Supplied Goods shall be delivered F.O.B. Seller. The place
for delivery of Directly Supplied Goods is at Buyer's place of business
presently located at 0000 X. Xxxxxxxxx Xxx, Xxxxxxxxx Xxxxxxx, XX 00000,
unless Buyer directs in the written purchase order a different delivery
location or locations as determined in Buyer's sole discretion.
6. Right to Inspection.
Buyer shall have the right to inspect all Directly Supplied Goods tendered
for delivery before delivery is considered complete under this Agreement.
Such inspection may take place only at the place of delivery or at
Seller's location if Buyer provides twenty four (24) hours advance notice.
If Buyer rejects any Directly Supplied Goods, such Directly Supplied Goods
shall be returned to Seller within a commercially reasonable time but in
no event more than ten (10) business days following tender. Buyer shall
not be charged for Directly Supplied Goods properly rejected as being
"Nonconforming." The term "Nonconforming" shall mean not conforming as the
term "conforming" is defined by 810 ILCS 5/2-166(2), i.e., not in
accordance with the obligations under the "contract". The "contract" shall
include this Agreement and any purchase order submitted pursuant hereto;
provided, however, in the event of a conflict between the purchase order
and this Agreement, the terms of this Agreement shall control. In the
event Buyer is to be charged for Directly Supplied Goods not properly
rejected, Buyer shall be notified in writing to arrange a new shipping
date. The expenses of inspection shall be borne by Buyer except in any
instance in which the Directly Supplied Goods have been properly rejected.
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7. Rejection of Nonconforming Directly Supplied Goods.
Any rejection of Directly Supplied Goods for being Nonconforming must be
made by Buyer by sending written notice to Seller of the rejection within
fifteen (15) business days after physical delivery ("Rejection Notice").
Such notice shall state the basis of the alleged nonconformity of the
Directly Supplied Goods, and the description of that portion of the
shipment being rejected. In the event Buyer fails to timely and properly
provide Seller the Rejection Notice, Buyer shall be deemed to have
accepted the Directly Supplied Goods and to have waived all claims, debts,
liabilities or cause of action against Seller for nonconformity related to
the Directly Supplied Goods except for the limited warranty provided in
paragraph 10.b. of this Agreement.
8. Procedure as to Rejected Directly Supplied Goods.
On receipt of a Rejection Notice, Seller shall arrange for shipment and
return of the Directly Supplied Goods. Within ten (10) business days after
of Seller's receipt of the returned Directly Supplied Goods, Seller may
inspect such Directly Supplied Goods for nonconformity. If Seller
acquiesces in the Directly Supplied Goods as being nonconforming, Seller
shall ship conforming Directly Supplied Goods within a commercially
reasonable time after receipt of a Rejection Notice but no longer than
forty-five (45) days. If Seller is unable to provide said Directly
Supplied Goods within said time, Buyer may obtain said Directly Supplied
Goods from another supplier; provided, however, except as set forth in
Section 13. c., such right shall apply only to said order and this
Agreement shall remain in full force and effect for all subsequent orders.
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9. Allocation of Risk.
Any risk associated with the Directly Supplied Goods being sold hereunder
rests with Seller up to the time of receipt of the Directly Supplied Goods
by the Buyer at the place of delivery, and a proper and timely inspection
has been completed by the Buyer without rejection of the Directly Supplied
Goods. Thereafter, such risk is with the Buyer, including any risk
associated with any Directly Supplied Goods thereafter returned to Seller;
provided, however, that after the Buyer has returned such Directly
Supplied Goods to Seller, and Seller has received such Directly Supplied
Goods, any risk associated with those Directly Supplied Goods reverts to
Seller.
10. Representations and Warranties of Seller. Seller hereby represents and
warrants to Buyer as follows:
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a. Seller is a corporation duly organized and existing under the laws
of the State of Illinois, is authorized to do business in the State
of Illinois and has all existing power and authority to carry on
business as now conducted.
b. The Directly Supplied Goods sold by Seller hereunder will be
manufactured and assembled in substantial conformity with the design
specifications provided by Buyer. In the event the Directly Supplied
Goods are not in substantial conformance with the design
specifications provided by Buyer, Buyer shall notify Seller of same
in writing within fourteen (14) days from the date Buyer becomes
aware of said deficiency; provided, however, any notice of
deficiency under this provision must be served upon Seller within
ninety (90) days from the date of delivery of the Directly Supplied
Goods to Buyer's end customer but in no event, more than 180 days
following Seller's delivery of the Directly Supplied Goods to Buyer.
Buyer's sole remedy under this warranty provision is rework or
replacement of said defective Directly Supplied Goods by Seller at
Seller's discretion within thirty (30) days from the date of receipt
of notice by Seller of such defect. If Seller fails to repair or
replace said defective Directly Supplied Goods with conforming goods
within the thirty (30) day period, Buyer may order said Directly
Supplied Goods from another supplier and Buyer shall be entitled to
return of all monies previously paid Seller as payment for said
defective Directly Supplied Goods. IN CONNECTION WITH DIRECTLY
SUPPLIED GOODS, IN NO EVENT, REGARDLESS OF THE FORM OF THE ACTION,
SHALL SELLER BE LIABLE FOR INCIDENTAL DAMAGES, PUNITIVE DAMAGES,
SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES OR LOST PROFITS
NOTWITHSTANDING SELLER MAY HAVE BEEN ADVISED OF SUCH DAMAGES.
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c. The parties acknowledge and agree that Buyer shall provide Seller
all specifications for the Directly Supplied Goods. Accordingly,
SELLER HEREBY DISCLAIMS ANY AND ALL WARRANTIES NOT OTHERWISE
EXPRESSLY SET FORTH IN THIS DOCUMENT, WHETHER EXPRESS OR IMPLIED,
INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, WARRANTIES OF
RESULTS, COMMERCIAL PRACTICALITY, DESIGN, SCALABILITY,
FUNCTIONALITY, CUSTOMER REQUIREMENTS AND/OR RESULTS, MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE. WITH RESPECT TO ALL THIRD PARTY
COMPONENT PARTS SPECIFIED BY BUYER TO SELLER FOR THE GOODS, SELLER
HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO SUCH THIRD PARTY
COMPONENT PARTS, WHETHER EXPRESS OR IMPLIED, INCLUDING BY WAY OF
EXAMPLE AND NOT LIMITATION, WARRANTIES OF RESULTS, PERFORMANCE,
FUNCTIONALITY, COMMERCIAL PRACTICABILITY, SUITABILITY, CUSTOMER
REQUIREMENTS AND/OR RESULTS, DESIGN, SCALABILITY, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, SELLER SHALL HAVE NO LIABILITY FOR DAMAGES OR INDEMNITY IN
ANY AMOUNT EXCEEDING THE CHARGES PAID BY BUYER TO SELLER HEREUNDER.
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d. Seller represents and warrants to Buyer that to Seller's knowledge,
Seller has all requisite skill, knowledge, experience, expertise,
facilities, equipment, inventory and staffing to perform under this
Agreement as contemplated by the parties as of the date of this
Agreement and to supply the Directly Supplied Goods requirements, as
are heretofore defined in this Agreement, in a timely and
workmanlike manner and manufactured and assembled in substantial
conformity with the design specifications provided by Buyer.
e. Seller has full power and authority to execute, deliver, and perform
this Agreement and all other documents, instruments, and agreements
to be executed, delivered and performed by Seller in connection
herewith and has taken all action required by law, the Articles of
Incorporation and the By-Laws of Seller, or otherwise, to authorize
the execution and delivery of this Agreement and all other
documents, instruments, and agreements to be executed, delivered and
performed by Seller.
f. This Agreement and all other documents, instruments, and agreements
to be executed, delivered, and performed by Seller in connection
herewith constitute the valid and binding Agreement of Seller,
enforceable against Seller in accordance with their respective
terms.
11. Representations and Warranties of Buyer. Buyer hereby represents and
warrants to Seller as follows:
a. Buyer is a corporation duly organized and existing under the laws of
the State of Nevada, upon Closing as defined in the Settlement
Agreement ("Closing Date") will be authorized to do business in
Illinois, and has all necessary power to own (or hold under lease or
license) its properties and assets and to carry on its business as
now conducted.
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b. Buyer has full power and authority to execute, deliver, and perform
this Agreement and all other documents, instruments, and agreements
to be executed, delivered and performed by Buyer in connection
herewith and has taken all action required by law, the Articles of
Incorporation and the By-Laws of Buyer, or otherwise, to authorize
the execution and delivery of this Agreement and all other
documents, instruments, and agreements to be executed, delivered and
performed by Buyer.
c. This Agreement and all other documents, instruments, and agreements
to be executed, delivered, and performed by Buyer in connection
herewith constitute the valid and binding Agreement of Buyer,
enforceable against Buyer in accordance with their respective terms.
d. Buyer represents and warrants it is the owner of the design
specifications to be used to produce the Directly Supplied Goods,
that Buyer has full title and authority to use said design
specifications, and that use of said design specifications by Seller
in manufacturing the Directly Supplied Goods hereunder will not
cause Buyer or Seller to be in breach of any agreement or be in
violation of any law, ordinance, judgment, or governmental agency
determination including any law or determination relating to patents
or other intellectual property rights.
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12. Default.
For purpose of this Paragraph, the term "Event of Default" shall mean:
a. either Party shall make an assignment for the benefit of creditors
or admit in writing its inability to pay its debts generally as they
become due or fail to generally pay its debts as they become due; an
order, judgment or decree shall be entered for relief in respect of
or adjudicating such Party or any of its subsidiaries bankrupt or
insolvent; either Party or any of its subsidiaries shall petition or
apply to any tribunal for the appointment of, or taking of
possession by, a trustee, receiver, custodian, or liquidator or
other similar official of such Party or any subsidiary or of any
substantial part of any of their respective assets; either Party or
any of its subsidiaries shall commence any proceeding relating to
such Party or any subsidiary under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction, or any such petition or
application is filed or any such proceeding is commenced against
such Party or any of its subsidiaries and such petition, application
or proceeding is not dismissed within sixty (60) days; and
b. either party shall be in breach of any representation, warranty,
obligation, undertaking or covenant made or entered into under this
Agreement.
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13. Remedies. In case of an Event of Default, the Parties shall be entitled to
the following remedies:
a. Except as otherwise provided herein, in case of an Event of Default
by either Party, the non-breaching Party shall be entitled to any
and all rights and remedies provided by Federal and Illinois laws,
regulations, statutes and case law, including, but not limited to
the Illinois Uniform Commercial Code; provided, however, TechAlt's
Liabilities as defined in the Settlement Agreement shall be absolute
and unconditional, and the Buyer shall pay and/or fulfill TechAlt's
Liabilities, as it relates to the Related Agreements, without
abatement, diminution or deduction regardless of any costs or
circumstances whatsoever including, without limitation, any defense,
setoff, recruitment, claim or counterclaim which the Buyer may have
or assert against the Seller under this Agreement. To the extent the
terms of this Agreement conflict with said Code, the terms hereof
shall prevail.
b. In addition to the rights and remedies provided by the Illinois
Uniform Commercial Code, the Party prevailing in any litigation
resulting from any alleged breach will be entitled to reasonable
attorney's fees and court costs.
c. Except as set forth in this subparagraph, in the event of Seller's
breach of Paragraph 10.b, Buyer's sole remedy shall be that set
forth in Paragraph 10.b. Notwithstanding any other provision herein
regarding the term of this Agreement, this Agreement may be
cancelled by Buyer if within any twelve (12) month period on six (6)
separate occasions (i.e., pursuant to six different purchase orders)
Seller shall have breached the warranty set forth in Section 10.b.
of this Agreement. Buyer shall give Seller ninety (90) days written
notice of cancellation of this Agreement under this subparagraph.
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d. Seller shall have a right to an accounting of Buyer's purchase
orders and any other documentation reasonably requested by Seller to
confirm Buyer's compliance with the purchase requirements of this
Agreement. Seller may request an accounting not more than two (2)
times per year, and such accounting shall be at Seller's expense,
unless the accounting reveals a discrepancy in Buyer's order
requirements by more than three percent (3%) in which case Buyer
shall pay for the cost of the accounting. The accounting shall be
conducted by a certified public accountant or other licensed
financial advisor selected by Seller, and the accounting shall be
limited to any and all actions and review of any and all documents
necessary to enable the accountant or financial advisor to verify
Buyer's purchase or other acquisition of Directly Supplied Goods and
Third Party Supplied Goods and corresponding amounts owed and
actually paid to Seller attributable thereto. e. The Parties shall
indemnify and hold each other and their affiliates harmless from and
against any and all claims, liability, costs and expenses (including
legal fees) arising out of (i) any violation by the Parties of any
of the material provisions of this Agreement; and (ii) any
warranties regarding the products sold by the Buyer to third party
customers that were not expressly authorized by the Parties in
writing.
f. In the event of an Event of Default attributable to the Buyer under
this Agreement or in the event of any "Change of Control" as defined
in the Note from TechAlt, Inc. to Xxxx Xxxxxxx of even date (but
specifically excluding the anticipated Merger between Technology
Alternatives, Inc. and Buyer ("Permitted Merger")), Seller shall
have the option, in lieu of its other remedies available hereunder,
to terminate this Agreement upon written notice to Buyer.
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(i) In the event of such termination, the Parties agree
Seller's initial damages shall be equal to the sum of the following:
(y) for the year of termination (the "Termination Year"),
thirty-five percent (35%) of the difference of $1,250,000 less
Buyer's actual orders of Directly Supplied Goods, if such difference
is a positive number; and (z) for each year of the remaining Term of
this Agreement (exclusive of the Termination Year), the sum of
$437,500.00, discounted at the rate of five percent (5%) per annum.
Buyer shall pay Seller's damages under this subsection (i) within
thirty (30) days following Seller's termination.
(ii) In addition to the foregoing, Seller shall have a
reserved claim in the amount of the following: (y) for the
Termination Year, the Royalty (less the actual Royalty paid by Buyer
to Seller during the Termination Year); and (z) for each remaining
year of the then-current term following the Termination Year (and
exclusive of the Termination Year), the Royalty that would be owed
Seller had this Agreement not been terminated. Buyer shall pay
Seller's damages under this subsection (ii) within thirty (30) days
following Seller's written notification to Buyer of such claim.
Seller shall make such claim at any time after such claim can be
calculated and prior to the expiration of four years following the
termination of this Agreement. At Seller's option, if more than one
(1) year remains to the expected date of termination following the
year of actual termination under this subparagraph (g), Seller may
make its reserved claim in part following the end of each successive
year without waiving any right to recover for remaining years.
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g. Notwithstanding anything to the contrary contained herein, in the
event Buyer's sole default at any time hereunder is failure to place
orders at least equal to the Monthly Purchase Requirement, Seller's
sole remedy shall be either of the following at Buyer's discretion:
(i) Buyer shall place an order within thirty (30) days from the end
of the Monthly Purchase sufficient to satisfy the Monthly Purchase
Requirements; or (ii) Buyer shall pay to Seller within thirty days
following the end of the monthly of the deficiency in question the
amount resulting from multiplying (y) the deficiency between the
Monthly Purchase Requirement and Buyer's actual order amount and (z)
thirty-five percent (35%) (the product of (y) and (z) shall be
referred to herein as the "Contingent Credit"). In the event of
Buyer's payment of a Contingent Credit during any Year of the term,
Buyer shall be entitled to offset in any subsequent month of such
Year, thirty-five percent of the purchase price of Directly Supplied
Goods in excess of the Monthly Purchase Requirement until the
Contingent Credit has been fully offset. Any offset of the
Contingent Credit must occur against purchases made in the same Year
of the term as the Contingent Credit was incurred. In no event shall
any Contingent Credit extend beyond the end of the Year of the term
in which it was incurred.
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14. Term of Agreement.
a. The minimum term of this Agreement shall be three years. The term
shall begin on the Closing Date.
b. At Buyer's option and provided Buyer gives Seller written notice of
election of such option prior to August 1, 2007, this Agreement
shall remain in effect until and including December 31, 2010.
15. Confidentiality.
Each Party shall safeguard, protect and keep confidential the proprietary
information of the other Party as if it were its own proprietary
information. Upon termination of this Agreement, all rights to the
proprietary information of the other shall terminate, and each Party shall
return to the other Party any proprietary or confidential information of
the other in its possession or control unless directed in writing by the
other Party to destroy such confidential or proprietary information.
16. Assignment of Seller's Warranties.
Seller agrees that Seller shall assign all product warranties in Seller's
possession with respect to the components constituting the Directly
Supplied Goods, if any, to the extent such warranties are assignable.
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17. General Conditions.
a. Except for the Permitted Merger, Buyer may not assign or otherwise
transfer its obligations under this Agreement except with the
written consent of Seller. Any prohibited assignment shall be null
and void.
b. This Agreement supercedes all prior oral or written proposals and
communications between the Parties related to this Agreement.
c. This Agreement shall not be modified, amended, rescinded, cancelled
or waived, in whole or in part, except by written amendment signed
by authorized representatives of the Parties.
d. The waiver by any Party of any provision of this Agreement shall not
constitute a waiver by that Party of the same or other provision of
this Agreement on any subsequent occasion.
e. This Agreement shall be construed in accordance with, governed by
and enforced under the laws of the State of Illinois; the Parties
acknowledging that this Agreement has been executed and performed in
Xxxx County, Illinois. Any paragraph, subparagraph, sentence or
phrase of this Agreement which is contrary to the laws of the State
of Illinois and/or unenforceable shall not affect the validity or
enforceability of any other paragraph, subparagraph, sentence, or
phrase of this Agreement and shall be modified or deleted to conform
with the applicable laws of the State of Illinois.
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f. The Parties agree that the Circuit Court of Xxxx County, Illinois,
or the U.S. District Court for the Northern District of Illinois,
Chicago, Illinois, shall have exclusive jurisdiction and venue over
any dispute relating to or arising from this matter, and proper
venue shall lie in said Court.
g. Any notice, consent, waiver, or other communication that is required
or permitted hereunder shall be sufficient if it is in writing,
signed by or on behalf of the Party giving such notice, consent,
waiver, or other communication, and delivered personally, by mail or
by Federal Express or similar overnight courier, postage prepaid,
and if by mail, certified or registered, to the addresses set forth
below, or to such other addressee or address as shall be set forth
in a notice given in the same manner:
If to Seller: SERVICES BY DESIGNWISE, LTD.
Attn: Xxxx Xxxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: Xxxxxxxx, Xxxxxx & Associates, Ltd.
Attn: Xx. Xxxxxxx X. Xxxxxx
000X Xxxxx Xxxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
If to Buyer: TECHALT, INC.
Attn: Xxxxx X. Xxxxxxx
0000 X. Xxxxxxxxx Xxx., Xxxxx X
Xxxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to: The Xxxx Law Group
Attn: Xxxxx Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
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Notice shall be deemed given upon delivery if delivered personally,
on the next day if delivered by an overnight carrier, or three (3)
days after the date of postmark if deposited in the U.S. Mail for
delivery by certified or registered mail, return receipt requested,
postage prepaid, addressed, or upon transmission if it has been
given by facsimile between 9:00 a.m. and 5:00 p.m. central time,
Monday through Friday.
h. Each Party is an independent contractor under this Agreement and
nothing herein shall be construed to create a partnership, joint
venture, or agency relationship between the Parties hereto. None of
the Parties shall have authority to enter into agreements of any
kind on behalf of the other Party, other than in strict accordance
with the terms of this Agreement and neither Party shall have power
or authority to bind or obligate the other Party in any matter to
any third Party.
i. This Agreement may be executed in two or more counterparts, all of
which together shall constitute one and the same instrument.
j. Facsimile signatures shall be sufficient for the purpose of
executing this Agreement.
k. To the extent that Seller's performance hereunder is prevented,
hindered or delayed by reason of any cause beyond Seller's
reasonable control, including, by way of example and not limitation,
any labor dispute, lock-outs, strikes, weather, terrorism, act of
God, regulation or order of government authority, unavoidable
accidents, inability to obtain on a timely basis necessary material
or services on reasonable terms, the dates or times by which Seller
is required to make performance hereunder shall be postponed until
the cause for such delay is abated. Neither party shall be liable
for any damages arising out of any such delay, hindrance or
prevention. Notwithstanding the foregoing, in the event any of the
aforementioned occurrences causes Seller to not deliver to Buyer the
Directly Supplied Goods within forty five (45) days of the due date
pursuant to the applicable purchase order, Buyer may order said
Directly Supplied Goods from another supplier but only to the extent
to satisfy said purchase order.
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This Agreement executed this _________ day of _____________, 2004.
BUYER: SELLER:
TECHALT, INC. SERVICES BY DESIGNWISE, LTD.
By:______________________ By:_________________________
Its _____________________ Its: _________________________
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