GK INDUSTRIES, INC.
RESELLER LICENSE AND DISTRIBUTION AGREEMENT
This re-seller agreement made this day of March, 2000, (the "Effective Date')
is an agreement between VISCOM PRODUCTS, INC. ("Viscom" or "Reseller"), 000
Xxxxxxx Xxxxxx, #X0, Xxxxxx Xxxxx, XX 00000, a company incorporated under the
laws of Delaware, and GK INDUSTRIES, INC., 000 Xxxxx Xxxx, Xxxxxxxx 00X,
Xxxxxxxxxx, Xxxxxxxx, 00000, ("GKI"), a company incorporated under the laws of
the State of Illinois, and is recognized as the Master Agent and Distributor for
the DiSS line of digital recording products manufactured by Sungjin C&C Co. Ltd.
of South Korea ("Sungjin"). By signing in the place indicated below, both
parties are agreeing to become legally bound by the terms and conditions
contained in this Agreement. This agreement is for a period of two years from
the above date and is renewable yearly thereafter once all parties agree to
changes to the agreement as well as any modification or change of the sales
projections referred to below.
1. GRANT OF LICENSE GKI hereby grants two licenses to Viscom so it can use,
remarket, and resell the Product listed in Schedule 1 by granting end-user
licenses under the terms stated in this Agreement. One license shall be
non-exclusive and covers the non-mobile applications of the Product; the
other license is exclusive and encompasses all mobile applications of the
Product, such as -- installations for buses, police cars, armored trucks or
other transportation-related purposes. It is understood the Product
contains Sungjin's proprietary software programs (the "Software") and
documentation and may also include third-party software licenses. Viscom
will purchase the Product from GKI and both GKI and Sungjin retain all
title and ownership of the Software and documentation. Any special
arrangements modifying this clause may also be found in Schedule 1.
2. MARKETING Viscom and its authorized representatives will use their best
efforts to promote and market the Product to, and in, the Territory listed
in Schedule 2. This includes providing training, marketing, and support
personnel to promote, sell, train, install and maintain the Product. At its
expense, GKI will provide technical training to Reseller's headquarters
staff in accordance with its established policies, as well as at Viscom's
Japanese office. Reseller is authorized to market the Product in the form
and packaging delivered by GKI. Viscom is not authorized to market the
product directly or indirectly outside of the territory listed as found in
Schedule 2. No use of GKI's, Sungjin, or DiSS Technology named trademarks
are authorized except to display the trademarks to identify and market the
Product.
Viscom will provide GKI with a six (6) month rolling forecast setting forth
estimated requirements for the Product by month for both exclusive and non-
exclusive applications. These forecasts are for planning purposes only and
will
not be binding on either party. Viscom will also provide GKI with a monthly
sales call activity and project report from its various offices that
operate in the Territory listed in Schedule 2. These reports would indicate
progress in the promotion of the various DiSS products as well as any major
projects that are forthcoming in order to better assist the factory in
planning production runs. It is expected that Viscom's organization's staff
and local sales offices are trained in selling the product, and that each
distribution outlet has a permanent demonstration unit at their disposal
for office and field demonstrations of DiSS technology. This report will be
faxed to the Sales and Marketing Manager at (000) 000-0000. Viscom
represents and warrants that it has made a full disclosure (by name and
capability) of the items it currently sells. If Viscom chooses to market,
promote or distribute additional items that compete with the Product, it
will notify GKI of its intent at least sixty (60) days prior to the
commencement of such activity, and GKI will have the right to terminate
this Agreement on ninety days (90) notice to Viscom without any liability
to GKI. A competing item provides substantial overlap of functionality of
the Product listed in Schedule 1.
3. DEMONSTRATION SYSTEM ORDERS & QUOTAS
A. Reseller shall make an initial stocking order for the Product(s) as
set forth in Schedule 3. (Opening Order)
B. Reseller shall employ sufficient efforts to promote and distribute the
Product in the Territory so that GKI receives orders from Reseller for
the Product, deliverable directly by GKI in the aggregate minimum USD
amount set forth as Schedule 3 ("Quota"). Reseller acknowledges that,
beginning on the Effective Date, failure to achieve such volumes
shall, at GKI's sole option, result in the termination of this
Agreement; provided, however, that Viscom will be given another
opportunity for the next time period to meet or exceed its Quota.
C. Viscom will fax a monthly sales report to GKI on its standard
reporting sheet which will be supplied by GKI to the Reseller. Failure
to provide this monthly activity report shall, at GKI's sole option,
result in the termination of this Agreement; provided, however, Viscom
will be given 30 days to cure such failure.
D. The Reseller will always maintain adequate inventory of GKI's
Products.
4. PRODUCT ORDERS AND SHIPMENT Viscom will order the Product (by fax or
otherwise) using a written purchase order. All orders are subject to
acceptance by GKI. GKI will ship the Product F.O.B. place of origin, within
the then current lead-times, to the location specified by Reseller, at its
expense, using the carrier of its choice. Current delivery lead times are
at maximum of 45 to 60 days after receipt of order.
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5. PRICE & PAYMENT GKI's Product Price Schedule is set out in Schedule 1. GKI
may adjust the Price Schedule with prior notice to Reseller of sixty (60)
days. Payment for the Product will be due via letter of credit prior, or
cash with each purchase order, unless otherwise indicated by GKI in
writing. Viscom will pay all applicable taxes, whether levied by
International, Federal, State or local governmental authority, and pay for
all shipping, freight and insurance charges. Equipment is shipped F.O.B.
Northbrook, I11.
6. COPYRIGHTS GKI represents and warrants that the software and documentation
involving the Product are owned (or, in the case of third-party software,
licensed) by Sungjin and are protected by United States copyright laws,
international treaty provisions and all other applicable national laws.
Except as provided in this Agreement, Viscom have not been granted any
right, title, or interest to any intellectual property rights in the
Software and documentation.
7. OTHER RESTRICTIONS -- Viscom may not copy the Software, modify, reverse
engineer, decompile, or disassemble the Software, or loan, rent or provide
access to the Software and documentation for a fee or otherwise, to any
third party for the purpose of unauthorized copying. However, nothing
herein will prevent Viscom from incorporating the Product and modifying it
for closed circuit television and for access control systems that it
designs, fabricates, markets or sells. All purchases under this Agreement
will be done through GKI, any deviation will be grounds for legal action.
During the term of this Agreement, the Reseller shall have access to and
may become familiar with proprietary information owned or controlled by GKI
consisting of, but not limited to, process, computer programs, compilation
of information, records, sales procedures, customer requirements, pricing
techniques, customer lists, methods of doing business and other
confidential information ("Information"), which are owned by GKI and which
are used in the operation of its business. Reseller shall not use in any
way or disclose any information, directly or indirectly, either during the
term of this Agreement or at any time thereafter. All files, records,
documents, information, data and similar items relating to the business of
GKI whether prepared by Reseller or otherwise coming into its possession,
shall remain exclusive property of GKI and shall be delivered to it upon
termination of this Agreement.
8. END-USER SOFTWARE LICENSE AND LIMITED WARRANTY GKI licenses and warrants
the Product under the terms and conditions set forth in the DiSS Technology
product's End-User Software License Agreement and Limited Warranty attached
as Schedule 4.
9. LIMITATIONS EXCEPT AS SPECIFICALLY SET IN THE SOFTWARE LICENSE AGREEMENT
AND LIMITED WARRANTY, GKI DISCLAIMS ANY AND ALL WARRANTIES, WHETHER
EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS
FOR A
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PARTICULAR PURPOSE OR MERCHANTABILITY. IN NO EVENT WILL GKI OR SUNGJIN BE
LIABLE FOR ANY DAMAGES, DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
(INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS,
BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY
LOSS), ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT AND
DOCUMENTATION, EVEN IF GKI HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH
DAMAGES, OR ANY CLAIM BY ANY OTHER PARTY. Some countries do not allow the
exclusion or limitation of implied warranties or liability for incidental
or consequential damages, so the above limitations or exclusions may not
apply to Viscom. In no event will the liability of GKI or Sungjin for
damages to Viscom or any other person ever exceed the amount of a Product's
most current suggested retail list price in effect at the time of a claim
for such damages. Regardless of any claims by Viscom against GKI or
Sungjin, GKI and Sungjin will not be liable to Viscom for any loss of
profits or damages in connection with any claims brought against Viscom by
any third party unless a court of competent jurisdiction so orders.
10. INDEMNIFICATION Viscom will indemnify and hold GKI and Sungjin harmless
against any and all claims or actions and any costs, liabilities, or losses
arising out of any statements or representations made by Reseller's
employees, representatives or agents with respect to the Product, except
for statements that are directly quoted from the documentation. This
indemnification provision will survive the termination of this Agreement.
11. CONFIDENTIALITY Viscom agrees to the terms and conditions contained in the
Mutual Non-Disclosure Agreement attached as Schedule 5.
12. TERMINATION GKI or Viscom may terminate this Agreement at any time, with
cause, by giving ninety (90) days written notice. If Viscom clearly has
violated any material of the terms of this Agreement, GKI may immediately
terminate this Agreement at its sole election as long as it gives Viscom
prior notice that it will terminate this Agreement and an opportunity to
cure such breach within thirty (30) days of such notice. Upon termination
of this Agreement, Viscom will cease holding itself out as an authorized
GKI reseller, and immediately make payment of any amounts due to GKI prior
to the date of termination, including reimbursement of reasonable and
verifiable costs incurred by GKI in connection with such termination. Under
no circumstances, will GKI, Sungjin or any of its agents, representatives,
employees, dealers or other resellers circumvent Viscom to sell, market, or
license the Product to any prior or current Viscom customers. This
non-circumvention pledge shall survive the termination of this Agreement.
In the event such circumventing occurs, Viscom shall be entitled to treble
damages. In the event of termination, any orders regarding unshipped
Product may be cancelled by Viscom; but if not so cancelled by it, such
orders shall be delivered by GKI on a timely basis as long as payment
therefor has been made or arranged as is customary hereunder.
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13. NOTICES All notices pertaining to this Agreement will be in writing and
sent to the addresses set forth below. Notices will be deemed given when
delivered personally or five (5) business days after having been sent by
certified or registered mail, commercial courier or similar reliable means
of delivery, or by facsimile transmission (the receipt of which
transmission is acknowledged within 24 hours of the receipt thereof) to the
other party at the addresses contained herein.
14. ADDITIONAL OBLIGATIONS OF RESELLER
A. BEST EFFORTS Reseller shall use its best efforts (at least equal to
its other products) to advertise and promote the sale of the Product
in Territory by:
1. Identifying End-Users that may benefit from use of the Product and are
capable of paying the fees associated therewith;
2. Arranging for and conducting competent and effective product
demonstrations and presentations relating to the Product;
3. Providing marketing and support services of a depth and magnitude
reasonably satisfactory to GKI;
4. Conducting, at all times, its business in a manner that will reflect,
favorably on GKI and the Product, and not engage in any deceptive,
misleading, illegal or unethical business practice;
5. Providing training to all Dealers and End-Users purchasing the Product
through Reseller's distribution channels; and
6. Reseller's distributors must, in order to sell the product, have on
hand one unit for their demonstration purposes at their branch
location.
B. DEALER TRAINING At GKI's expense Reseller will ensure that all of its
sales staff, employees and/or installers of the Product will be
trained, prior to any Product installations, either by Reseller or
upon request by Reseller, by GKI directly.
C. BUSINESS PLAN Reseller shall develop and provide to GKI within sixty
(60) days of the Effective Date a business plan for the Product to be
marketed and licensed in the Territory, with estimations provided on
global sales per market country covered.
D. INTELLECTUAL PROPERTY PROTECTION Reseller shall notify GKI of any
unauthorized use or infringement in the Territory of any of the
intellectual property rights (insofar as it becomes aware), and shall
at the request of GKI take part in or give assistance in respect of
any legal proceedings and execute any documents and do any things
reasonably necessary to protect the intellectual property rights in
the Territory. Reseller may, at its sole option and expense, elect to
participate in, but not control, any prosecution initiated by GKI to
protect the intellectual property rights in the Territory.
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X. XXXXX In any instance where any GKI or DiSS Technology, or Sungjin
xxxx is contemplated for use in any advertising promotion news release
or other publication of any kind whatsoever, Reseller shall first
submit such matters to GKI for prior written approval prior to
release, publication or other dissemination. GKI shall have the right
to require, at its discretion, the correction or deletion of any
misleading, false, or objectionable material from such advertising,
promotion or publicity. Such approval shall not be unreasonably
withheld and, when given, shall be given on a timely basis.
F. PRIVATE LABEL The Reseller has the right to have future products,
other than the opening stock order, be private-labeled with the
Reseller's logo on the front of the recorder. In addition, the
Reseller has the right to create their own literature and marketing
materials. GKI shall offer private labeling at no additional charge on
the Product. Any new literature to be done will be at the Reseller's
own cost.
G. INSPECTION With at least ten days (10) prior written notice, Reseller
shall permit GKI or its authorized representatives, at all reasonable
times on any mutually convenient business day, to enter Reseller's
facilities to conduct audits of Reseller's maintenance, support and
training activities.
H. Reseller will abide by all rules, regulations and laws of the United
States Government regarding exports.
15. MISCELLANEOUS Viscom's status under this Agreement is that of an
independent contractor and nothing will be construed in this Agreement to
create a partnership, joint venture, or agency relationship with GKI.
Viscom may not assign this Agreement without the prior written consent of
GKI. This Agreement constitutes the entire agreement between GKI and Viscom
and supersedes all prior agreements and communications, whether oral or in
writing, with respect to the subject matter of this Agreement. In the event
of any conflict between a purchase order and this Agreement, the terms of
this Agreement will control. No amendment or notification of this Agreement
will be effective unless made in writing and signed by both parties. This
agreement and all amendments, modifications, alterations or supplements
hereto are to be governed and construed as to both substantive and
procedural matters in accordance with the laws of the State of Illinois.
16. ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS OF GKI
A. That Viscom and Vicon Industries, Inc. will be the only two resellers
of the Product in the Territory specified in Schedule 2 hereto during
the term of this Agreement and no additional resellers of the Product
will be appointed or licensed without Viscom's express written
consent.
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B. That Sungjin holds and maintains all rights, title and interest to the
Product and its underlying technology and that a master
distributorship agreement exists between GKI and Sungjin covering the
Product and the Territory included in this Agreement whereby GKI has
full authority and power to enter into this Agreement to resell the
Product in the Territory specified therein and that Master
Distributorship Agreement extends through the full term of this
Agreement and that GKI and Sungjin have both complied to the full
extent with the terms and conditions thereof and that neither party
has breached or is in default under such agreement and no legal or
administrative actions, suits, litigation, hearings or orders are in
effect or threatened thereunder or in regard thereto.
C. That GKI shall on a timely basis cooperate with Viscom in the sale,
marketing and modification of the Product by sharing information on
projects and prices quoted sufficiently in advance, by providing
notice and information in regard to any upgrades, improvements or new
related developments, by furnishing demonstrations and prototypes of
any such upgrades, improvements or development at GKI's expense.
IN WITNESS WHEREOF, GK Industries, Inc. and Viscom Products, Inc. have caused
this Agreement to be executed by their duly authorized corporate officers as of
the day, month, and year first above written.
GK INDUSTRIES, INC. VISCOM PRODUCTS, INC.
By:___________________________________ By:_____________________________________
Name (in print):______________________ Name (in print):________________________
Title:________________________________ Title:__________________________________
Date:_________________________________ Date:___________________________________
Address: 000 Xxxxx Xxxx Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxx 00-X Xxxxxx Xxxxx, XX 00000
Northbrook, Illinois Phone: (000) 000-0000
XXX 00000 Fax: (000) 000-0000
Phone: (000) 000-0000
Fax: (000) 000-0000
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SCHEDULE 2
TERRITORY
With present product labeled under the Viscom brand name, Xxxxx Xxxxxxx,
Xxxxx Xxxxxxx, Xxxxxxx Xxxxxxx (including Mexico) and Japan.
SCHEDULE 3
INITIAL OPENING EQUIPMENT ORDER*
Quantity Description Unit Price Extension
-------- ----------- ---------- ---------
33 Model DiSS Guardian w/25.2 GB Hard $7,800.00 $257,400.00
Disk Drive, w/LAN, Modem, Quad
W/internal SCSI card for Reseller
supplied DVD
23 Model DiSS NetMaster networked recording $8,940.00 $205,620.00
system
2 Model DiSS NetAgent Review Station $6,600.00 $ 13,200.00
Software
2 Model DiSS NetAgent Review Station $3,900.00 $ 7,800.00
complete w/monitor
Total Opening Order $484,020.00
TARGET QUOTA (WORLDWIDE)
RECORDERS, MIX AND MATCH
To be determined under mutual agreement, revised as needed by both
parties.
* To be purchased at time of signature of the agreement.
SCHEDULE 4
SOFTWARE LICENSE & LIMITED WARRANTY
IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT OPEN THE DiSS
PRODUCT CARTON AND POWER UP OR USE THE PRODUCT, RETURN ALL HARDWARE, WRITTEN
USER DOCUMENTATION, ACCESSORIES AND ALL PERIPHERAL COMPONENTS (IF ANY) WITHIN 30
DAYS OF PURCHASE TO GK INDUSTRIES, INC. OR ITS AUTHORIZED DISTRIBUTOR OR DEALER,
AS APPLICABLE. A RESTOCKING CHARGE FEE WILL BE APPLIED.
GRANT OF RIGHTS: GK Industries, Inc. ("GKI") warrants you (an entity or person)
the right to use the product and DiSS digital recording software as installed
in its products ("Software"), on a non-exclusive basis for non-mobile
applications and exclusive basis for mobile applications, under the
circumstances and configurations described in the purchase order or contract
agreement between GKI and you.
TITLE: Title to any hardware, peripheral components and accessories thereof
("Hardware"), physical copies of the user documentation and magnetic or other
physical media acquired for the use with the Software and DiSS recording system,
transfers upon the acquisitions thereof, but GKI and Sungjin C&C Co. Ltd.
("Sungjin") retains all title to an ownership of the Software. The term
"Software", includes third party software GKI licenses for use in the Hardware
and/or Software. "System" means the Software, Hardware, user documentation,
magnetic media or other physical embodiment of the Software.
COPYRIGHT: All intellectual property rights in the Software, System and user
documentation are owned or licensed by GKI/Sungjin and are protected by United
States copyright laws, other applicable copyright and national and
international laws and international treaty provisions. GKI and Sungjin retains
all rights not expressly granted.
RESTRICTIONS: You may not alter, merge, modify, or adapt this Software and/or
hardware in any way, including reverse engineering, disassembling, decompiling
or creating derivative works. You may not loan, rent, lease, provide access to,
or license the Software and/or Hardware. Nothing herein, however, prevents you
from incorporating, modifying and/or selling this Software and/or as part of
your CCTV or access control systems.
UPDATES (NEW RELEASES AND MODIFICATIONS): At its option, GKI may, from time to
time, (i) issue a New Release obtainable by paying the stipulated license fee
or, (ii) issue a modification during the warranty period. "New Release" means
any improved or enhanced version of the Software and/or Hardware adding new
features or functions not addressed or contemplated by the user documentation.
"Modification" means any alteration to the Software of Hardware which corrects
defects preventing the
code or system from functioning in material conformity with the user
documentation, but which does not change the form, fit or function of the
Software and Hardware.
LIMITED WARRANTY: Subject to the limitations described below, GKI warrants as
follows: Software: The Software is free of material reproducible programming
errors and substantially conforms to the applicable user documentation and
specifications (if any). When properly installed, the Product works efficiently
and effectively as indicated in product literature, in demonstrations, and
conversations between GKI and Viscom personnel. USER DOCUMENTATION: The User
Documentation is free from material defects in materials and workmanship.
EXCEPT AS PROVIDED HEREIN, GKI MAKES NO WARRANTY, REPRESENTATION, PROMISE, OR
GUARANTEE, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE
SOFTWARE AND/OR HARDWARE, USER DOCUMENTATION, OR RELATED TECHNICAL SUPPORT,
INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
EXCLUSIVE REMEDY: The warranty and remedy set forth herein are exclusive and
in lieu of all others, oral or written, express or implied. No GKI dealer,
distributor, agent or employee is authorized to make modification or addition
to this warranty. This warranty gives you specific legal rights and you may
also have rights which vary from state to state. After expiration of the
Warranty period (the "Warranty Period"), you or your customer, and not GKI or
its dealers, distributors, agents, or employees, assume the entire cost of all
necessary service, repair or correction. SOFTWARE AND USER DOCUMENTATION: GKI
will, at its option, repair the defect or replace the Software at no charge
provided the defective item(s) is (are) returned to GKI within one (1) year
from the date of retail purchase.
ADDITIONAL LIMITATIONS: The foregoing warranty is null and void and of no force
and effect if (i) you fail to operate the System in substantial conformity with
the operations and maintenance procedures described in the user documentation or
published environmental and electrical parameters; (ii) identification markings
on any component of the System have been defaced, altered, or removed; (iii) any
component of the System is altered or modified without the approval or knowledge
of GKI; (iv) the System has been tampered with in an unprofessional manner such
as the Hardware Cabinet being opened without the express written consent of GKI.
WARRANTY WITH RESPECT TO ANY HARDWARE COMPRISING THE SYSTEM: GKI warrants the
Hardware is free from defective materials and workmanship from the date of the
retail purchase for a period of one (1) year and operates efficiently and
effectively as indicated in product literatures, demonstrations, and
conversations between GKI and Viscom personnel. During the Warranty Period, GKI
will, at its sole option and discretion, replace or repair the defective
Hardware at no charge providing the defective Hardware is returned to GKI by
using first calling the Customer Care Service Center for a Return Materials
Authorization Number. Should the equipment received be modified, scratched, or
be damaged, GKI will at its sole discretion, apply a reasonable refurbishing
charge to materials that may not be used as in-
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warranty replacements. This shall be communicated to the dealer or applicable
party once an incoming inspection report has been completed.
NOTICE OF WARRANTY CLAIM: In the event of any defect or suspected defect in the
System, promptly communicate via Fax GKI Customer Care Department at (847)
000-0000 or call (000) 000-0000. If, after reasonable investigation, the
defect or suspected defect is not covered by warranty, GKI at its sole
discretion, may charge for services rendered at its customary rates. All
equipment being returned for repair/replacement whether under warranty or not
will only be accepted at GKI if Return Materials Authorization Number has been
issued previous to receiving any equipment.
LIMITATION OF LIABILITY: In no event will GKI and Sungjin be liable for
indirect, special, incidental, economic, cover, or consequential damages arising
out of the use of or inability to use the Software, Hardware, user
documentation, or related technical support, including, without limitation,
damages or costs relating to loss of profits, business, goodwill, data or
computer programs, even if advised of the possibility of such damages unless GKI
or Sungjin is guilty of an intentional act or omission or gross negligence. In
no other case shall GKI's liability exceed the amount paid by you for the
Software and/or Hardware. Some states do not allow the exclusion or limitation
of implied warranties or limitation for incidental or consequential damages, so
the above exclusion or limitation may not apply to you.
GENERAL: This agreement constitutes the entire agreement between GKI and you,
and supercedes all prior agreements and communications, whether oral and in
writing, with respect to the subject matter of this Agreement. In the even of
any conflict between a purchase order and this Agreement, the terms of this
Agreement will control. No amendment or modification of this agreement will be
effective unless made in writing and signed by both parties. This Agreement and
all amendments, modifications, alterations and supplements hereto is governed
and construed as to both substantive and procedural matters in accordance with
Illinois State Law. If any provision of this Agreement is found to be unlawful,
void or unenforceable, then that provision is severed from this Agreement and
will not affect the validity and enforceability of any of the remaining
provisions.
CUSTOMER SUPPORT: Subject always to its support polices, GKI will attempt to
answer your technical support questions concerning the System; however, this
service is offered on a reasonable efforts basis only, and GKI may not be able
to resolve every support request. GKI supports the system for the usage which
the System is designed. Support policies may change from time to time without
notice.
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SCHEDULE 5
MUTUAL NON-DISCLOSURE AGREEMENT
THIS AGREEMENT is between the Reseller and GK Industries, Inc. (the "Parties").
WHEREAS, the Parties have entered into a Reseller Agreement and agree that
certain business and trade information proprietary to the Parties, and which
the disclosing party considers confidential, may be provided or disclosed to
the receiving party during the term of the Reseller Agreement.
NOW, THEREFORE, in consideration of these premises, it is agreed as follows:
ARTICLE 1. DEFINITIONS
As used herein, the following terms shall have the following respective
meaning:
(a) "Confidential Information" shall mean any information, technical data or
know-how which relates to the business, services, or products of the
Parties or its Affiliate (as defined hereinafter), including, without
limitation any research, product, service, development, invention, process,
technique, design, distribution, engineering, marketing, merchandising
and/or sales information which is disclosed by the Parties of by any
Affiliate on its behalf, before or after the date hereof, to the receiving
party or its employees in writing, orally, or by drawing or inspection of
parts or equipment.
(b) "Affiliate" shall mean any company or entity that directly controls or
is directly or indirectly controlled by, or is under common control
with one of the Parties. The term "control" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction
of management of company or entity in question whether through the
ownership of voting shares, by contract, or otherwise.
ARTICLE 2. MARKETING OF INFORMATION
Any confidential information provided by the disclosing party to the receiving
party and entitled to protection hereunder shall be identified as such by an
appropriate stamp or marking on each document provided, and if oral, promptly,
but no later than thirty (30) days thereafter, reduced to a writing transmitted
to the receiving party.
ARTICLE 3. TREATMENT IN CONFIDENCE
Except as provided in Article 5 hereof, the receiving party agrees to the
following:
(a) the receiving party shall not disclose the Confidential Information to
any other person other than the disclosing party's or its Affiliate
employees having a reasonable need-to-know of the Confidential
Information.
(b) the receiving party shall cause all its employees or its Affiliates to
whom such Confidential Information shall be disclosed to treat such
Confidential Information with the same degree of care, to avoid
disclosure to any third party, as is used with respect to the
receiving party's own information of like importance which is to be
kept secret;
(c) the receiving party shall take reasonable security measures and use care
to preserve and protect the security of and to avoid disclosure or use of
the Confidential Information; and
(d) the receiving party shall promptly advise the disclosing party in
writing of any misappropriation or misuse of Confidential Information
which may come to its attention.
ARTICLE 4. RETURN OF DOCUMENTS
All equipment, documentation and other information which has been furnished by
the disclosing party to the receiving party shall be promptly returned by the
receiving party to the disclosing party, accompanied by all copies and
translations of such documentation and information made by the receiving party
upon termination of this Agreement.
ARTICLE 5. EXCLUSION OF DOCUMENTS
Confidential Information shall not be afforded the protection of this Agreement
if such information:
(a) had, at the time of disclosure, been previously made
public;
(b) is made public after its disclosure, unless such publication is a
breach of this Agreement or any other agreement between the parties hereto;
(c) was, prior to disclosure to the receiving party, obtained from a third
party who is lawfully in possession of such information and is free to
disclose such information to the receiving party; and
(d) is before or after disclosure, independently developed by the
receiving party without reference to any information furnished
pursuant to this agreement and written documentation is available to
prove that such development pre-dated this agreement.
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ARTICLE 6. NO RIGHTS GRANTED
Nothing herein contained or the termination hereof shall be construed as
granting or conferring any rights on the receiving party by license or
otherwise, expressly or implied by, to any Confidential Information of the
disclosing party or to any patent of copyright covering such information.
ARTICLE 7. COMPENSATION
The parties hereto shall not be obligated to compensate each other for
exchanging any information under this Agreement as well as any use thereof,
except as otherwise expressly provided for herein.
ARTICLE 8. TERMINATION
This Agreement shall be effective as of the effective date of the Reseller
Agreement and shall terminate when said Reseller Agreement terminates. The
rights and obligations accruing prior to termination as set forth herein shall,
however, survive the termination as specified in this Agreement for a period of
one year.
ARTICLE 9. AUTHORITY
Each party warrants and represents that it possesses all necessary powers,
rights and authority to lawfully make the disclosures subject to this
Agreement.
3
