NON-EXCLUSIVE RESELLER AGREEMENT
This
Non-Exclusive Reseller Agreement for purchase and sale of remote monitoring
products (hereinafter
this “Agreement”) is made effective as of this 26 day of May 2006 (“Effective
Date”)
by
and between
Xxxxxx Corporation, a Delaware corporation, operating through its Broadcast
Communications Division
with offices located at 0000 Xxxxxxx Xxx, Xxxxx, Xxxx 00000 (hereinafter
“Xxxxxx”), and
Statmon Technologies Corp., a Nevada corporation, with offices located at 000
X.
Xxxxx Xxxxx, Xxxxx
000, Xxxxxxx Xxxxx,
XX
00000 (hereinafter “Statmon”).
WHEREAS
Statmon
manufactures and supplies the Products (as hereinafter defined);
and
WHEREAS,
Xxxxxx
manufactures, markets and promotes digital, AM, FM, IBOC and Television
broadcast
systems and finished products which integrate among other products, network
interface and system controllers, other broadcast and data products and
components; and
WHEREAS,
Xxxxxx
wishes to engage in the manufacture, marketing, and sale of
digital, AM, FM,
IBOC
and Television broadcast systems which integrate Statmon’s products and to
market, distribute
and
resell Statmon’s Products worldwide on a non-exclusive basis; and
WHEREAS,
Xxxxxx
and Statmon entered into a Memorandum of Understanding on November 18, 2005
which has since expired (see copy in Exhibit G) to negotiate the formation
of an agreement whereby
Xxxxxx may place purchase orders from time to time with Statmon for the purchase
of the Products
which Statmon may accept and complete in accordance with the terms of this
Agreement.
NOW
THEREFORE, in
consideration of the premises and mutual covenants herein set forth and
other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged,
the parties hereby agree as follows:
ARTICLE
1 –DEFINITIONS
For
purposes of this Agreement, the following terms and their definitions shall
apply:
“Affiliate” with
respect to any Person, shall mean any other Person directly or indirectly
controlling, controlled by, or under the direct or indirect common control
with-such Person, including without limitation a corporation’s Subsidiaries, any
company of which it is a Subsidiary, and other Subsidiaries of such
company.
“ATSC
Transport Stream” shall
mean a bit stream that is compliant with the Advanced Television
Systems Committee Standard.
“Conformance
Testing” shall
mean the testing and acceptance procedures for the Products as agreed
to
by the parties and incorporated into an Appendix from time to time.
“Days” shall
mean calendar days unless otherwise noted.
“Designated
Processors” shall
mean the microprocessor units upon which Xxxxxx may run the Statmon Product
for
uses in accordance with Article 17 of this Agreement..
“End
User” shall
mean: (i) with respect to Software and Related Documentation, any third party
to
whom a
sub-license to Use Licensed Materials is granted by Xxxxxx hereunder in
connection
with the purchase
of Products by such third party from Xxxxxx for use by such third party and
not
for resale, and
(ii)
with
respect to Products purchased by Xxxxxx hereunder, a third party who purchases
Products for use by such
third party and not for resale.
Proprietary
1
“Statmon
Product” shall
mean, Statmon software packages and remote terminal units including those listed
in Appendix A, any upgrades, software revisions and any product extensions
manufactured
by Statmon for Xxxxxx.
“General
Release Date” means
the
time at which Statmon notifies Xxxxxx that Statmon is ready to
ship
to Xxxxxx a specific Product or set of products previously under
development.
“Hardware” shall
mean remote terminal units, punch down blocks and associated
connections.
“Licensed
Materials” shall
mean any Software and Related Documentation offered under this Agreement
for which a license to Use is granted under the terms and conditions of this
Agreement.
“New
Products” shall
mean Products which are added from time to time to Appendix A and designated
as “New Products” by the mutual agreement of the Parties.
“Object
Code” shall
mean that representation of Software in binary form intended to be readily
usable
by
a processor.
“Order” shall
mean an order submitted by Xxxxxx in writing to Statmon for the purchase of
Products
in accordance with this Agreement.
“Person” means
any
individual, corporation, partnership, limited liability company, joint
venture,
association, trust, unincorporated association, entity, governmental body,
or
any other entity or organization.
“Price
Schedules” shall
mean Statmon’s official listings and explanations, in written or electronic
form, for Products, Licensed Materials, prices, discount plans, discount rates,
special price conditions and terms as listed in Appendix A, Products and Prices
attached hereto and made a part of this Agreement.
“Products” shall
collectively mean the Hardware and Software which comprises the Statmon
Products
and New Products.
“Related
Documentation” shall
mean materials in
any
form
useful in connection with Software and/or
its use and Products including, but not limited to, flowcharts, logic diagrams
and listings, and program
descriptions, Specifications and Product manuals.
“Return
Material Authorization (RMA) Number” means
the
authorization number provided by
Statmon’s customer service department to Xxxxxx after Xxxxxx or its End User has
notified Statmon’s customer
service department of a deficiency or malfunction in a Product.
“Software” shall
mean a computer program in Object Code consisting of a set of logical
instructions
and tables of information that guide the functioning of a processor. Such
program may be contained
in any medium whatsoever, including firmware containing a pattern of bits,
representing such program. However, the term “Software” does not mean or include
such medium.
“Source
Code” shall
mean the most current representation of Software (as updated from time to
time
)
incorporating high-level or assembly language that generally is not directly
executable by a processor.
Proprietary
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“Specifications” shall
mean Statmon’s or its vendor’s technical specifications for particular
Products
or Software furnished hereunder.
“Subsidiary” of
a
Person means a Person the majority of whose shares or other securities or
ownership
interests entitled to vote for election of directors or other governing body
is
now or hereafter owned
or
controlled by such Person either directly or indirectly, but a Person shall
be
deemed to be a Subsidiary
of such Person only as long as such ownership or control exists.
“Use” with
respect to Licensed Materials means loading the Licensed Materials, or any
portion thereof,
into a Designated Processor for execution of the instructions and tables
contained in such Licensed
Materials.
Appendices: The
following Appendices are incorporated by reference hereunto and form a part
of
this Agreement:
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(a)
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Appendix
A - Products
and Prices
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(b)
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Appendix
B -
Escrow
Agreement
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(c)
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Appendix
C - Specifications
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(d)
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Appendix
D
- ReCon
Inventory transferred to Axess Inventory
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(e)
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Appendix
E -
End
User License Agreement
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(f)
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Appendix
F - Confidentiality
Agreement
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(g)
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Appendix
G -
Memorandum
of Understanding (expired and superseded by this Agreement)
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ARTICLE
2 –
TERM
This
Agreement shall commence on the Effective Date and, except as otherwise provided
in Article
24 -
Termination,
shall continue in effect for a period of three (3) years from the Effective
Date
of this
Agreement (the “Term”). The modification, termination or expiration of this
Agreement shall not affect
the rights or obligations of either party under any Order or any outstanding
Xxxxxx quotation(s) to an End
User
which Statmon has approved in writing before the effective date of the
modification, termination
or expiration, which outstanding quotation shall not extend more than ninety
(90) days following
any such modification, termination, or expiration.
ARTICLE
3 –
SCOPE
3.1
The
terms
and conditions set forth in this Agreement shall govern any Orders placed by
Xxxxxx during
the Term for Statmon Products and Licensed Materials set forth in Appendix
A
-
Products.
Xxxxxx shall have the right to procure Statmon Products and Licensed Materials
under this Agreement with respect
to Products, to market and resell (subject to the license terms stated herein)
the same on a non-exclusive,
world-wide basis. Statmon shall remain free to market and sell all Statmon
Products and Licensed
Materials as it, in its sole discretion, deems appropriate to any
customer.
3.2
The
Parties may add to Appendix A -
at any
time, provided that the addition of new Products or Licensed
Materials shall not create any purchase obligation on Xxxxxx’ part. The parties
may delete any Statmon
Product from Appendix A only upon mutual written agreement between Xxxxxx and
Statmon.
ARTICLE 4
– NON-EXCLUSIVE
RIGHTS
4.1
The
term
of all non-exclusive rights and non-exclusive licenses granted to Xxxxxx’
hereunder shall be
for
the Term of this Agreement unless this Agreement is terminated pursuant to
the
provisions of Article 24.
Proprietary
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4.2
Both
parties shall meet on a quarterly basis to have general discussions including,
but not limited to,
the
review of current market conditions, product features, regulatory and
competitive climate including pricing,
technical features and improvements to new products.
ARTICLE
5 –
RESPONSIBILITIES
OF THE PARTIES
5.1 In
addition to all other obligations of Xxxxxx under this Agreement, Xxxxxx
shall:
(a) where
appropriate, train its End Users in the effective use of the Products and
Licensed
Materials, including providing any instructional material furnished by
Statmon;
(b)
inform
its customers, of service and maintenance options available from
Statmon
(c)
report
in
writing within thirty (30) business days
to
Statmon all suspected Products and Licensed Materials defects or safety problems
and keep Statmon
informed of customer complaints.
(d)
comply
with all applicable requirements of
federal, state and local laws, ordinances,
administrative rules and regulations.
(e)
offer
to
its End User a warranty for such Products and Licensed Materials on the
same
terms as the warranty granted to Xxxxxx from Statmon.
(f)
be
responsible for all other expenses associated with its personnel’s attendance at
training
including, but not limited to, travel, lodging and meals. In
addition, Xxxxxx shall be responsible for
all
travel, lodging and meals expenses associated with the attendance of
Statmon personnel at any training
session.
(g)
pass
on
sales leads for the Products to Statmon.
5.2 In
addition to all other obligations of Statmon under this Agreement, Statmon
shall:
(a)
review
Xxxxxx’ written reports referred to in Section 5.1 (c) and respond with
a
remedy
or
proposed remedy to such reports within 14 business days from Statmon’s receipt
thereof;
(b)
develop
and manufacture the Products in compliance, with the Specifications and
provide
Xxxxxx with service or replacement for Products in accordance with the
terms
and
conditions of this Agreement.
(c)
comply
with all applicable requirements of
federal, state and local laws,
ordinances, administrative rules and regulations including.
(d)
provide
Xxxxxx with instructional materials in mutually agreed upon quantities
relating
to the Products and Licensed Materials for training and educational purposes
as
needed; and
(e)
provide
Xxxxxx with training for the Products and for major Software revisions
free
of
charge at least once a year. In the event Xxxxxx desires additional training,
such shall be provided by
Statmon at $150.00 per hour or $1,200 per day.
(f)
be
responsible for configuration, installation and homologation requirements
for
the
Products worldwide, including all costs, expenses and fees
associated with such installation and homologation.
(g)
Provide
pre-sales support and “first tier” support, after
successful software installation,
to all End Users that have purchased a support contract from
Statmon either directly or through
Xxxxxx. First tier is defined as direct technical support to the End User per
the terms of the then current
support packages provided by Statmon at the time, details of which are available
on Statmon’s website
xxxx://xxx.xxxxxxx.xxx/Xxxxxx/Xxxxxxx.xxxx
Proprietary
4
h)
Pay
Xxxxxx a 10% referral fee for sales leads under 5.1 (g) above on qualified
opportunities
as defined herein (the “Referral Fee”). A Qualified Opportunity shall be defined
as a sales lead
communicated by Xxxxxx to Statmon in writing and accepted as such by Statmon
in
writing. Statmon can
reject a sales lead upon presentation to Xxxxxx of substantive documentation
that it was aware of the sales
lead prior to the Xxxxxx written communication of such lead. The parties
will
review
the Qualified Opportunities
periodically and may agree to different terms and conditions on substantial
Qualified Opportunities on a case-by-case basis.
ARTICLE
6 –
ORDERS
6.1
All
Orders submitted by Xxxxxx for Products and Licensed Materials shall incorporate
and be subject
to the terms and conditions of this Agreement. To the extent that any terms
contained within this Agreement
are in conflict with those referenced in any particular Order, the terms set
forth herein shall take
precedence and control. Xxxxxx shall issue an Order to Statmon to procure
Products hereunder. Any Order
submitted pursuant to a firm price quotation shall include such firm price
quotation number. All Orders,
including electronic Orders, shall contain the information as detailed
below:
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(i)
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Complete
and correct ship to and xxxx to address;
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(ii)
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The
quantity and type of Products and Licensed Materials being
ordered;
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(iii)
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The
price;
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(iv)
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The
requested delivery date in accordance with Statmon’s standard interval for
the Products and
Licensed Materials being ordered, or, in the event a non-standard
interval
has been agreed to by the parties, reference shall be made to the
specific
document agreeing to the interval;
and
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(v)
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Reference
to this Agreement.
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(vi)
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End-User
information, including End User’s name, address, telephone number, contact
and call
sign.
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6.2
Xxxxxx
shall have the right to cancel any Order without liability in the event Statmon
does not deliver
any Products within the then delivery time of the Order except when such a
delay
is caused by a force
majeure event which continues for less than 30 days, or as the parties may
agree
otherwise in writing.
ARTICLE
7 –
PRICES,
INVOICES AND TERMS OF PAYMENT
7.1
Statmon
will invoice Xxxxxx all
amounts
due for Products and Licensed Materials upon shipment or
in
either event, as soon as practical thereafter in accordance with prices set
forth in
Appendix A. The Parties
agree to review the prices and discuss decreases based on sales volumes. Unless
otherwise agreed in writing,
Xxxxxx may elect to pay all such invoiced amounts, less any disputed amounts
for
receipt by Statmon
2% 10 days or within (30) days of the invoice date.
ARTICLE
8 –
DELIVERY;
INSPECTION AND TESTING; ACCEPTANCE
8.1
Delivery
of Units: Statmon
shall deliver the Products to Xxxxxx or designated End User at the address
and according to the respective delivery schedules specified in the
Orders.
8.2
Testing
of Products by Statmon; Quality Control: Statmon
shall have no obligation to develop
any New Products. However, should Statmon desire to develop a New Product and
seek to have it included within the terms of this Agreement, the following
guidelines shall govern the development of such
New
Product: Statmon shall provide and maintain a quality control, inspection and
test system for all
Products in accordance with the Specifications and, upon Xxxxxx’ request, issue
to Xxxxxx a certificate as
to the
compliance of Products with applicable Specifications pursuant to each Product
shipment. Statmon shall configure and assemble all Products in accordance with
the Orders. Except as specified in Section
8.3 Statmon shall not ship any Product to Xxxxxx until such Product has
satisfied the Conformance Testing.
Xxxxxx shall have the right to inspect and witness Statmon’s testing of the
Products at Statmon’s manufacturing
facility and Xxxxxx shall provide all reasonable facilities and assistance
for
such inspection if
at
Xxxxxx’ request the testing is to be done at a Xxxxxx facility. In the event
that Xxxxxx witnesses the Conformance Testing of a New Product at Statmon’s
manufacturing facility and determines that the Product
satisfies all requirements of the Conformance Testing and otherwise conforms
to
all applicable Specifications,
Xxxxxx will so notify Statmon. Statmon’s quality control procedures will include
a mechanism
by which Products may be traced back to a particular lot. Complete and accurate
records relating
to such tests shall be maintained by Statmon at all times during the term of
this Agreement and for
a
period of three (3) years thereafter and shall be made available to Xxxxxx
upon
Xxxxxx request.
Proprietary
5
8.3
Acceptance
of New Products: All
New
Products not accepted by Xxxxxx shall be subject to inspection
and testing by Xxxxxx in accordance with the Conformance Testing within thirty
(30) days after Xxxxxx’
receipt of such Products at the site of Xxxxxx specified in the Order to
determine conformity with the
Order
and Specifications. Statmon shall have the right to witness all such inspections
and testing by Xxxxxx.
8.4
Acceptance
of Products (Other than New Products: If
any
Products (other than New Products) delivered
do not conform to the Accepted Order or the Specifications, Xxxxxx shall have
the right to reject such
Products within thirty (30) days after Xxxxxx’ receipt of such Products at the
site of Xxxxxx specified in
the
Order. Statmon
shall bear the costs and expenses, including, without limitation, storage,
transportation, shipping, recalling, repackaging, reshipping, and the like
associated with repair and/or replacement
of nonconforming Products or lots.
8.5
Statmon’s
Obligations With Respect to Rejected Products: In
the
event that any Product is rejected by Xxxxxx following the Conformance Testing
procedures set forth in Sections 8.2, 8.3 and 8.4 due
to
failure of the Products to perform in accordance with the Specifications,
Statmon shall promptly inspect
and test such Product at Xxxxxx’ facility (or, at the election of either party,
at Statmon’s
facility) in accordance with the Conformance Testing to determine whether the
Product conforms to all Specifications
applicable to such Product. Xxxxxx shall have the right to be present at
all
inspections
and tests
conducted by Statmon. In the event that a rejected Product does not satisfy
the
Conformance Testing,
Statmon shall, as soon as possible but no later than within thirty (30) days
after its receipt of Xxxxxx’
notice of rejection and without expense to Xxxxxx, correct defects in any
nonconforming Product or,
at
its option, replace the nonconforming Product so that such Product or
replacement Product satisfies the
Conformance Testing. If Statmon is unable to correct defects in the
nonconforming Product or replace the
Products Statmon will so notify Xxxxxx. Xxxxxx shall have the option to have
Statmon provide a credit for
such
Products.
8.6
In
the
event Statmon promptly inspects and tests a rejected Product at a Xxxxxx
facility (or, at the election
of either party, at Statmon’s facility) in accordance with the Conformance
Testing and satisfies all
such
test included therein, such Product shall be deemed to be accepted for all
purposes of this Agreement,
effective upon Xxxxxx’ receipt of Statmon’s written certification of such test
results or, if later, upon the subsequent return of such Product to
Xxxxxx.
ARTICLE
9 –
DISPOSITION
OF RECON INVENTORY
9.1
The
Parties acknowledge and agree that the inventory of all Products purchased
and
pre-paid by Xxxxxx
under the Agreement for Purchase & Sale of Remote Monitoring Products
entered into by and between
the Parties on February 25, 2003 (the “Exclusive OEM Agreement”) under the ReCon
brand is attached hereto as Appendix D (hereinafter referred to as the “ReCon
Inventory”) and forms part of this Agreement.
Proprietary
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9.2
The
Parties agree that the ReCon Inventory will be allocated against future
shipments of Products under
the
Axess brand at the rate of 100% through March 31, 2006, at the rate of 75%
from
April 1,
2006
through
June 30, 2006 and at the rate of 50% thereafter until such inventory is
exhausted.
ARTICLE
10 – DOCUMENTATION
10.1
Statmon
shall furnish Xxxxxx with an electronic master copy
of
source
documentation, including but not
limited to instruction and technical manuals (“Product Information”) relating
to
the
Products. Xxxxxx shall use such Product Information in sales promotion and
training of Xxxxxx personnel and
customers only with
respect to the Products purchased under this Agreement.
10.2
For
Products listed in Appendix A -
Products, Statmon shall provide to Xxxxxx the following product documentation
in
electronic format:
Operations
and Maintenance Manuals
Product
pictures in the highest resolution possible
Application
Guide Brochures
Xxxxxx
shall use such information in sales promotion, marketing activity and for End
Users only
with
respect to
the
Products purchased under this Agreement and in accordance with the terms of
this
Agreement.
ARTICLE
11 – DISCONTINUED
AVAILIBILTIY/SPARE PARTS
11.1
Statmon
shall not discontinue making any Products available to Xxxxxx without providing
Xxxxxx
with at least 90 days prior written notice of such discontinuance and an
opportunity to purchase such quantities of the Products as Xxxxxx estimates
it
may need to support the Products
sold to Xxxxxx’ End Users.
ARTICLE
12
–EXPORT
CONTROL
The
parties acknowledge that any Products, Software, and technical information
(including, but not
limited to, services and training) provided under this Agreement are subject
to
U.S. export
laws and regulations
and any use or transfer of such Products, Software,
and technical information must be authorized
under those regulations. Xxxxxx agrees that it will not use, distribute,
transfer, or transmit the Products,
Software, or technical information (even
if
incorporated into other products) except in
compliance
with U.S. export regulations.
ARTICLE
13 –
SALES
OR USE TAXES
Xxxxxx
shall provide Statmon with a valid tax exempt certificate, in which case Xxxxxx
shall
not
be liable
for all sales taxes and related charges exempted under such certificate, however
designated, imposed
upon or based upon the provision, sale, license or use of Products, and Licensed
Materials
levied upon
the
sale.
ARTICLE
14 -
TRANSPORTATION
AND PACKING
Statmon
will arrange for prepaid transportation (from a list of carriers pre-approved
by
Xxxxxx) to
destinations in the contiguous United States and invoice transportation charges
to
Xxxxxx, which Xxxxxx agrees
to
pay in accordance with Article 7. When
possible, Statmon shall utilize Xxxxxx’ accounts with DHL,
Federal Express or UPS and Xxxxxx will be billed for such charges directly
by
the carrier. Premium
transportation
will be used only at Xxxxxx’
request.
Statmon shall pack Products for delivery in the contiguous
United States, in accordance with its standard practices for domestic
shipments.
Where, in order
to
meet Xxxxxx’ requests, Statmon packs Products in other than its normal manner or
for destinations outside the contiguous United States, Statmon may xxxx Xxxxxx
for the additional charges for such packing and
transportation.
Proprietary
7
ARTICLE
15 –
TITLE
AND RISK OF LOSS
Risk
of
loss to Products and Licensed Materials shall pass to Xxxxxx upon delivery
to a
common carrier,
Xxxxxx or its designated carrier or agent. Title to the Products shall pass
to
Xxxxxx upon delivery to Xxxxxx,
or
if
Xxxxxx
so instructs, to Xxxxxx’ End User in accordance with the Order. Title to all
Licensed Materials
(whether or not part of firmware) furnished by Statmon, and all copies thereof
made by Xxxxxx, including
translations, compilations, and partial copies are, and shall at all times
remain, the property of Statmon.
Xxxxxx shall notify Statmon promptly of any claim with respect to loss which
occurs while Statmon
has the risk of loss and shall cooperate in every reasonable way to facilitate
the settlement of any claim. For purposes of this clause, “delivery” shall mean
the point at which Statmon or Statmon’s supplier or
agent
turns over possession of the Product or Licensed Materials to a common carrier,
Xxxxxx, Xxxxxx’ End User, Xxxxxx’ employee, Xxxxxx’ designated carrier, Xxxxxx’
warehouse, or other Xxxxxx agent and not necessarily the final destination
shown
on the Order.
ARTICLE
16 –
PRODUCT
CHANGES AND DEVELOPMENTS
Statmon
may modify the Product drawings and Specifications or substitute products of
later design. Statmon
guarantees that such modifications or substitutions will not impact upon form,
fit, or function under
normal and proper use of the ordered Product as provided in the Specifications.
With respect to changes,
modifications, and substitutions that do impact the form, fit, or function
of
the Products, Statmon shall
notify Xxxxxx in writing thirty (30) days prior to the date the changes become
effective and Xxxxxx shall notify
Statmon of any objections thereto before the effective date of the change;
if
Xxxxxx fails to notify Statmon
of any such objections, Xxxxxx shall be deemed to have consented to such change.
Statmon shall inform
Xxxxxx on a periodic basis of any planned changes to the form, fit, or function
of Products.
ARTICLE
17 –
LICENSE
17.1
Upon
delivery of Licensed Materials pursuant to this Agreement, Statmon, grants
to
Xxxxxx a perpetual,
personal, nontransferable, (except as specified herein), and nonexclusive
license to Use the Licensed Materials solely on the Designated Processors for
its own business operations and to grant sublicenses as provided below
commencing in Section 17.3. Xxxxxx shall not reverse engineer, decompile
or
disassemble Software furnished as object code to generate corresponding Source
Code. Unless
otherwise
agreed in writing by Statmon, Xxxxxx shall not modify Software furnished by
Statmon under this Agreement
except as provided in Statmon’s documentation. If a Designated Processor becomes
temporarily
inoperative, Xxxxxx shall have the right to use the Licensed Materials
temporarily on a backup processor until operable status is restored and
processing on the backup processor is completed. Xxxxxx may
make
up to two (2) archival copies of the Software for use as backup for failed
Software.
17.2
All
Licensed Materials (whether or not part of firmware) furnished by Statmon,
and
all copies thereof
made by Xxxxxx, including translations, compilations and partial copies, are
and
shall remain the property
of Statmon.
17.3
Notwithstanding
the provisions of this article, in consideration of the fees to be paid
hereunder, Xxxxxx
may sub-license the Use of Licensed Materials with finished products on behalf
of Statmon to End Users,
but only in connection with the sale or lease to such End User of the finished
products incorporating Products
purchased under this Agreement for which such Licensed Materials were furnished
in connection with
such
Products.
Such
sub-license shall be administered electronically by Statmon for electronic
acceptance by each End User the first time the Licensed Materials are used
and
shall incorporate the terms and
conditions set forth in Appendix F, Statmon’s End User License Agreement. Upon
request by Xxxxxx, Statmon
agrees to provide Xxxxxx with copies of all such sub-licenses for the sole
purpose of verifying acceptance
of
the
required terms and conditions. The
terms
of such sub-licenses shall survive any termination
of rights under this Agreement, including termination under Section 1.7.4.
Proprietary
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17.4
Statmon
may cancel any license granted under this article if Xxxxxx fails to materially
comply
with the
terms
and conditions of such License or this Agreement and this Agreement is
terminated. Statmon may
cancel any sub-license to an End User of Xxxxxx who fails to materially comply
with the terms
of
such sublicence.
If
a
license or sub-license is canceled, or if Licensed Materials are
no
longer needed, the corresponding
copies of Licensed Materials shall be returned to Statmon, or Statmon
shall
be
assured, in a format
reasonably required by Statmon, that all copies of Licensed Materials
have been destroyed and software
has been erased from
all
media; provided however, that Xxxxxx may retain copies of the Licensed
Materials
reasonably required to fulfill
its
warranty and maintenance obligations to its non-breaching sub-licensees.
This paragraph shall not affect (1) the proper sub-license of
Licensed Materials made before Xxxxxx’
license is canceled, or (2) Xxxxxx’ license hereunder if an End User
fails
to
comply with a sub-license,
provided, in either event, that such sub-licenses fully
comply
and comport with this article.
ARTICLE
18 –
WARRANTIES
18.1
Product
Warranties: To
the
extent and subject to the terms of the warranty given by the original
manufacturer of the remote terminal units, Videoquip, Statmon
warrants to Xxxxxx that the Hardware
components of any Products will conform to all applicable Specifications, and
will be free from defects
(including latent defects) in design (except to the extent that a Product is
manufactured according
to
Xxxxxx’x design specifications), material, and workmanship for a period of (a)
twelve (12)
months from the
date
of delivery by Xxxxxx of a Product to an End User.
18.2
Software
Warranties: Statmon
warrants to Xxxxxx that the Software will be free from defects which
materially affect the performance of the Software or the related Products
and will operate in accordance
with the Specifications for a period of twelve (12) months from the date of
delivery by
Xxxxxx
of
Software to an End User. In
addition the media in which the Software is provided shall be free from
defects
in materials and workmanship for a period of twelve (12) months from
the
date
of delivery by Xxxxxx
of
the media to an End User.
18.3
Other
Warranties: Statmon
warrants to Xxxxxx only that any and all services to be performed by
Statmon
hereunder including, without limitation, technical support and training, will
be
performed by Statmon
in a good and workmanlike manner. If
any
Products or Software furnished by Statmon contain one
or
more third party manufacturer’s warranties, Statmon hereby assigns such
warranties to Xxxxxx, to the extent such warranties are assignable. Statmon
warrants that at the time of delivery to Xxxxxx, all Products
and Software shall be free of any security interest or any other lien or
any
other
encumbrance whatsoever.
Furthermore, Statmon warrants that it is the owner of all intellectual property
rights
relating to
the
Products and Software and that it has the rights to grant the licenses contained
herein.
18.4
Repair/
Replace: Statmon
shall repair or replace defective or nonconforming Products or Software
under warranty or, at its option, replace the Products or Software under
warranty with
Products and
Software that are conforming and not defective. If
Statmon is unable to so repair or replace the Products
or Software, Statmon will notify Xxxxxx. Xxxxxx
shall have the option to have Statmon provide a credit
or, as otherwise requested by Xxxxxx, a refund equal to the price of the Product
and,
if
installed by Statmon,
the original installation charges which were charged to Xxxxxx.
18.5
Return
of Products and Software: Defective
or non-conforming Products and Software under warranty
will be returned to Statmon for repair or replacement, at Statmon’s cost,
with
risk
of loss and damage
in
transit borne by Statmon. Unless otherwise agreed upon by Statmon and Xxxxxx,
Statmon
shall complete
repairs and ship the repaired Products and/or Software, or replacement Products
and/or
Software within
fifteen (15) days after Statmon’s receipt of the defective or non-conforming
Products and/or Software. Notwithstanding
the above provision of this Section 18.5,
if
a Product or Software is determined
to be defective within thirty (30) days use by an End-User of Product
or
Software, Statmon agrees
to
replace or repair the defective Product or Software within five (5) business
days. In addition, if a Xxxxxx field engineer is on site for a field
installation or repair under warranty, if requested by Xxxxxx, Statmon agrees
to
use its best efforts to expedite a replacement on the same day to the End-User
site. Statmon shall bear the risk of loss and damage in-transit and shall prepay
and bear the cost of freight for shipments to the owner of repaired or replaced
Products and Software.
Proprietary
9
If
Products or Software returned to Statmon for any repair or replacement are
riot
defective or nonconforming, and, Statmon did not require or recommend the
return, Xxxxxx shall pay Statmon for any handling, inspection, repairs or
transportation provided by Statmon at Statmon's then prevailing
rates.
During
the warranty period, all replacements of defective Products shall be new
Products and not refurbished Products.
18.6
Warranty
on Repaired or Replacement Products and Software:
Any
Product or Software under warranty which is repaired or replaced by Statmon
shall be warranted as provided in this Article for: (a) the remainder of the
original warranty period; or (b) ninety (90) days after the applicable Product
or Software is returned to Xxxxxx, whichever is later (based upon the date
the
repair or replacement is completed and accepted by Xxxxxx).
18.7
Repair
Information:
Products
or Software repaired by Statmon shall have the repair completion date stenciled
or otherwise identified in a permanent manner at a readily visible location
on
the Products and the repaired Products shall be returned with a tag or other
papers describing the repairs which have been made.
ARTICLE
19 – REPAIRS
OR REPLACEMENT NOT COVERED UNDER WARRANTY
19.1
Repairs:
In
addition to "in warranty" repairs, Statmon agrees to provide repair or
replacement service for all Products and Software ordered during the Term for
a
period of two (2) years after such Products or Software have been discontinued
by Statmon, pursuant to notice by Statmon of such discontinuance. Statmon agrees
to provide such warranty repairs or replacement (other than "in warranty"
repairs or replacement) at the repair or replacement charges then generally
charged by Statmon for such repairs or replacements or, if such repairs or
replacements are not then being performed by Statmon at reasonable
rates.
19.2
Repair
or Replacement:
Defective Products or Software, out-of-warranty, may be returned to Statmon
for
repair or replacement. If any Product or Software returned to Statmon for repair
is reasonably determined to be irreparable, Statmon shall promptly notify
Xxxxxx. Statmon shall then, at Xxxxxx' option, sell to Xxxxxx a replacement
Product or Software, if available, at the prices set forth pursuant to this
Agreement or, if this Agreement is then terminated, at the then current price
for such Product. During the Term of this Agreement, Statmon shall continue
to
provide replacement Products and/or Software for a period of two (2) years
after
such Products or Software has been discontinued by Statmon.
19.3
Completion
of Repairs Shipment of Replacement:
Statmon
shall complete repairs and ship the repaired or replaced Product or Software
or,
as authorized by Xxxxxx in an equipment repair or replacement order replacement
Product, within thirty (30) days of Statmon's receipt of the defective Product.
Statmon shall bear the risk of loss or damage during transit of the Product
and
shall prepay and bear the cost of transportation charges for shipment to Statmon
of the Product or Software to be repaired or replaced. For return shipments
from
Statmon to Xxxxxx, Statmon shall bear the risk of loss or damage during transit
and Statmon shall prepay and bear the cost of transportation charges for
shipment of the Product or Software that has been repaired or
replaced.
19.4
Warranty:
Any
Product or Software repaired or replaced pursuant to this Article (i.e., out
of
warranty), shall be warranted for a ninety (90) day warranty
period.
Proprietary
10
19.5
No
Exclusive Privilege: This
Agreement does not grant Statmon any exclusive privilege to repair
any or all Products or Software delivered to Xxxxxx under this Agreement and
Statmon acknowledges
that Xxxxxx may perform any repairs or contract with others for
repairs.
19.6
Repair
Information: Products
and Software repaired by Statmon shall have the repair competition date
stenciled or otherwise identified in a
permanent
manner at a readily visible location on the
Products and the repaired Products or Software shall be returned with a tag
or
other papers describing the repairs which have been made.
ARTICLE
20 –
INDEMNIFICATION
20.1
Statmon
will indemnify and save harmless Xxxxxx from any loss or damages (including
reasonable
attorneys' fees and legal costs) awarded against Xxxxxx by final judgment (or
by
settlement approved
by Statmon) because of claims, suits, or demands of third parties for personal
injury or tangible property
damage (as limited below) to the extent such loss or damage is caused by or
results from the negligent
acts or omissions of Statmon or its employees or agents provided 1) Xxxxxx
promptly notifies Statmon
in writing of any suits, claims or demands against Xxxxxx for which Statmon
is
responsible under this
indemnity, 2) Xxxxxx gives Statmon full opportunity and authority to assume
the
sole defense of and settle
such suits and 3)
Xxxxxx
furnishes to Statmon, upon request, all information and reasonable assistance
available to Xxxxxx for defense against any such suit, claim or demand.
Statmon's liability under
this indemnity, however, shall in no event exceed $250,000 for any one
occurrence. This
indemnity is in lieu of all other obligations of Statmon, express or implied,
in
law or in equity, to indemnify
Xxxxxx (except pursuant to the Article entitled "INFRINGEMENT").
20.2
Xxxxxx
will indemnify and save harmless Statmon from any loss or damages (including
reasonable attorneys' fees) awarded against Statmon by final judgment (or by
settlement approved by Xxxxxx) because of claims, suits, or demands of third
parties for personal injury or tangible property damage
(as limited below) to the extent such loss or damage is caused by or results
from the negligent acts
or
omissions of Xxxxxx or its employees or agents provided 1) Statmon promptly
notifies Xxxxxx in writing
of any suits, claims or demands against Statmon for which Xxxxxx is responsible
under this indemnity, 2) Statmon gives Xxxxxx full opportunity and authority
to
assume the sole defense of and settle such suits and 3) Statmon furnishes to
Xxxxxx upon request all information and reasonably assistance available to
Statmon for defense against any such suit, claim or demand. Xxxxxx' liability
under this indemnity,
however, shall in no event exceed $250,000 for any one occurrence. This
indemnity is in lieu of
all
other obligations of Xxxxxx, express or implied, in law or in equity, to
indemnify Statmon (except pursuant
to the Article entitled "INFRINGEMENT").
ARTICLE
21 – INFRINGEMENT
21.1
In
the
event of any claim, action, proceeding or suit by a third party against Xxxxxx
or any
End-User
alleging an infringement of any patent, copyright, or trademark, or a violation
of any trade secret or proprietary
rights by reason of Xxxxxx' sale or End-User's use, in accordance with the
Specifications, of any
Product, Licensed Material or other item furnished by Statmon to Xxxxxx under
this Agreement, Statmon,
at its expense, will defend and hold harmless Xxxxxx and/or any End-User, as
the
case may be, subject to the conditions and exceptions stated below. Statmon
will
reimburse Xxxxxx and any End-User for
any
cost, expense and attorney's fees, reasonably incurred, and will indemnify
Xxxxxx against any liability
assessed against Xxxxxx and/or End-User by final judgment (or by settlement
approved by Statmon)
on account of such infringement or violation arising out of such
use.
21.2
If
Xxxxxx' or an End-User's use shall be enjoined or in Statmon's opinion is likely
to be enjoined, Statmon
will, at its expense and at its option, either (a) replace the affected Product,
Licensed Material, or other
item furnished pursuant to this Agreement with a suitable substitute of
equivalent form, fit and function
free of any infringement or violation, (b) modify it so that it will be free
of
the infringement or
violation and of equivalent form, fit and function, or (c) procure for Xxxxxx
a
license or
other
right to use it.
If
none of the foregoing options is not achieved after commercially reasonable
efforts,
Statmon will remove
the enjoined Product, Licensed Material, or other item and refund to Xxxxxx
any
amounts paid to
Statmon.
Proprietary
11
21.3
Xxxxxx
or
End-User (as the case may be) shall give Statmon prompt written notice
of
all
such claims,
actions, proceedings or suits alleging infringement or violation and
Statmon shall have full and complete
authority and shall assume, at Statmon's expense, the sole defense thereof,
including
appeals, and
to
settle same. Xxxxxx or End-User shall, upon Statmon's request and at Statmon's
expense,
furnish all
information and reasonable assistance available to Xxxxxx
or
End-User and cooperate in every reasonable
way to facilitate the defense and/or settlement of any such claim, action,
proceeding
or suit.
21.4
No
undertaking of Statmon under this Article 21 -
Infringement shall extend to any such alleged infringement
or violation to the extent that it: (a)
arises from adherence to design modifications, specifications,
drawings, or written instructions which Statmon is directed by Xxxxxx
to
follow, but only if such alleged infringement or violation does not reside
in
corresponding commercial Product
or Licensed Material
of Statmon's design or selection; or (b) arises from adherence to instructions
to apply Xxxxxx'x trademark,
trade name, or other company identification; or (c) resides in a Product
or
Licensed Material which
is
not of Statmon's origin and which is furnished by Xxxxxx
to
Statmon for use under this Agreement;
or (d) arises from use of Products, Licensed Materials or other items provided
by Statmon
in combinations
with other Products, Licensed Materials or other items, furnished
either by Statmon or others,
which combination was not installed, recommended, intended or otherwise
approved
by Statmon. In
the
foregoing cases numbered (a) through (d),
Xxxxxx
will defend and save Statmon harmless, subject to the
same
terms and conditions and exceptions stated above
with respect to Statmon's rights and obligations under this clause.
21.5
THE
LIABILITY OF STATMON AND XXXXXX WITH RESPECT TO ANY AND
ALL
CLAIMS,
ACTIONS,
PROCEEDINGS, OR
SUITS
BY
THIRD
PARTIES ALLEGING
INFRINGEMENT
OF PATENTS, TRADEMARKS, OR COPYRIGHTS OR VIOLATION OF TRADE SECRETS
OR PROPRIETARY RIGHTS BECAUSE OF, OR IN CONNECTION WITH, ANY ITEMS FURNISHED
PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE SPECIFIC UNDERTAKINGS
CONTAINED IN THIS ARTICLE.
ARTICLE
22 –
TRADEMARKS
AND OTHER INDICIA
22.1
Unless
Xxxxxx specifically requests labeling in accordance with Appendix B,
the
exterior of all Products
to be provided by Statmon under this Agreement shall be provided with
Statmon's
trade name and/or
trade dress ("Statmon Marks") pursuant to the provisions of
this
Article whereby Statmon expressly
authorizes Xxxxxx to use Statmon Marks (as hereinafter
defined) in connection with the marketing,
sale, or license by Xxxxxx of Products or Licensed Materials in
accordance with the terms of this
Agreement. All
uses
of Statmon Marks by Xxxxxx shall be subject to prepublication or
pre-use review
and approval by Statmon which will not be unreasonably withheld or delayed.
If
Statmon grants Xxxxxx
permission to use its Statmon Marks in Xxxxxx' marketing and
advertising of, and in Xxxxxx' publicity
relating to Products and Licensed Materials, such use shall conform to Statmon's
written standards
and guidelines relating thereto, which may be revised by Statmon from time
to
time.
Such use shall
inure to the benefit of Statmon and shall not invest in Xxxxxx any rights in
or
to the Statmon
Marks. If
at any
time, in Statmon's judgment, any use of Statmon Marks by Xxxxxx is deemed
detrimental to
the
Statmon
Marks or Statmon's reputation, or is deemed otherwise undesirable, Statmon
may, upon thirty (30)
days
prior written notice to Xxxxxx, withdraw such permission without liability
as a
result thereof unless
within such notice period Statmon determines in its sole discretion that Xxxxxx
has modified
the use of
the
Statmon Marks to Statmon's satisfaction. Xxxxxx
shall not conduct business under any of the Statmon
Marks or derivatives or variations thereof, and Xxxxxx shall not directly
or
indirectly hold itself out
as
having any relation to Statmon or its affiliates other than as
approved by Statmon as set
forth
herein.
Proprietary
12
22.2
Xxxxxx
expressly authorizes Statmon to use Xxxxxx Xxxxx (as hereinafter defined) in
connection with
website marketing and other advertising literature and marketing pieces in
accordance with the terms of
this
Agreement. All uses of Xxxxxx Xxxxx by Statmon shall be subject to
prepublication or pre-use review and approval by Xxxxxx which will not be
unreasonably withheld or delayed. If Xxxxxx grants Statmon
permission to use Xxxxxx Xxxxx in Statmon's marketing and advertising of, and
in
Statmon's publicity
relating to Products and Licensed Materials, such use shall conform to Xxxxxx'
written standards and guidelines relating thereto, which may be revised by
Xxxxxx from time to time. Such use shall insure to the sole benefit of Xxxxxx
and shall not invest in Statmon any rights in or to the Xxxxxx Xxxxx. If at
any
time,
in
Xxxxxx' judgment, any use of Xxxxxx Xxxxx by Statmon is deemed detrimental
to
the Xxxxxx Xxxxx or
Xxxxxx' reputation, or is deemed otherwise undesirable, Xxxxxx may upon thirty
(30) days prior written notice
to
Statmon, withdraw such permission without liability as a result thereof unless
within such notice period
Xxxxxx determines in its sole discretion that Statmon has modified the use
of
the Xxxxxx Xxxxx to Xxxxxx' satisfaction. Statmon shall not conduct business
under any of the Xxxxxx Xxxxx or derivatives or variations
thereof, and Statmon shall not directly or indirectly hold itself out as having
any relation to Xxxxxx
or
its affiliates other than as approved by Xxxxxx as set forth
herein.
ARTICLE
23 –
USE
OF INFORMATION
23.1
All
other
technical and business information in whatever form which bears a legend or
notice restricting
its use, copying or dissemination or, if not in tangible form, is described
as
being proprietary or confidential
at the time of disclosure and is subsequently summarized in writing so marked
and delivered to
the
receiving party within thirty (30) days of disclosure to the receiving party
(all hereinafter designated
"Information") shall remain the property of the furnishing party. All Software
shall be deemed to be confidential or proprietary regardless of how labeled
and
use thereof shall be in accordance with
Article 17. The furnishing party grants the receiving party the right to use
such Information only as follows:
Such Information (a) shall not be reproduced or copied, in whole or part, except
as authorized in this
Agreement; and (b) shall, together with any full or partial copies thereof,
be
returned or destroyed when
no
longer needed. Statmon shall use such Information from Xxxxxx solely for
performance under this Agreement.
Xxxxxx shall use such Information from Statmon only (a) to order, (b) to
evaluate Statmon's Products,
Licensed Materials, or other items, or (c) to install, operate, and maintain
the
particular Products,
Licensed Materials, or other items for which it was originally furnished. Unless
the furnishing party
consents in writing, such Information shall be held in confidence by the
receiving party, except for that
part, if any, which a) was known to the receiving party at the time it was
submitted, b) is, or becomes, publicly
known through no wrongful act of the receiving party, c) is received by the
receiving party from a
third
party without similar restrictions and without breach of this Agreement or
other
applicable agreements,
d) is approved for release by written authorization of the disclosing party,
e)
is independently developed
by the receiving party without the use of the Information disclosed hereunder,
f) is furnished by
the
disclosing party to a third party without a similar restriction on the third
party's rights of g) except to the extent disclosure may be required by
applicable laws or regulations, in which latter case, the party required
to make such disclosure shall promptly inform the other prior to such disclosure
in sufficient time
to
enable such other party to make known any objections it may have to such
disclosure (the disclosing
party shall take all reasonable steps to secure a protective order or otherwise
assure that such Information
will be withheld from the public record). The receiving party may disclose
such
Information to
other
persons, upon the furnishing party's prior written authorization, but solely
to
enable such third party
to
perform acts which this clause expressly authorizes the receiving party to
perform itself and further
provided such other person agrees in writing (a copy of which writing will
be
provided to the furnishing
party at its request) to the same conditions respecting use of Information
contained in this clause and to any other reasonable conditions requested by
the
furnishing party. The obligations and restrictions
placed upon the receiving party under this section shall expire five (5) years
after the Effective Date.
23.2
Each
Party agrees to execute and be bound by the terms and conditions contained
in
the Confidentiality Agreement attached hereto as Exhibit G. Furthermore, each
Party agrees: (a) to obtain, from
any
individual not subject to confidentially obligations at least as restrictive
as
in
Section 23.1 who are
in
need to know of, and receive, any part of the Information, a commitment of
confidentiality and
restrictive
use in the form attached hereto as Appendix G -
Confidentiality Agreement; (b) to enforce by all
means
such commitments, and to assist actively furnishing party in the protection
of
the Information against
any wrongful act or negligence by third parties and (c) to abide by the terms
and
conditions of the Confidentiality
Agreement attached hereto as Exhibit G which is incorporated by reference
hereunto and made
a
part of this Agreement.
Proprietary
13
ARTICLE
24 –
TERMINATION
24.1
Termination
Upon Certain Events: Either
party may terminate this Agreement, effective immediately, without liability
for
such termination, upon written notice to the
other
party, if any of the following
events occur:
| (a) |
The
other party files a voluntary petition in
bankruptcy
|
| (b) |
The
other party is adjudged bankrupt;
|
| (c) |
A
court assumes jurisdiction of the assets of the other party under
a
federal reorganization act;
|
| (d) |
A
trustee or receiver is appointed by a court for all or a substantial
portion of the assets
of the other party;
|
| (e) |
The
other party becomes insolvent or suspends its business;
or
|
| (f) |
The
other party makes an assignment of its assets for the benefit of
its
creditors except
as required in the ordinary course of
business
|
24.2
Termination
Upon Material Breach: Either
party may terminate this Agreement upon written notice
to
the other party if the non-terminating party has committed a material
breach
of
its obligations under
this Agreement and has failed to cure such breach within thirty (30)
days
from
receipt of written notice of such breach. Such
termination shall be effective thirty (30) days after written notice
by
the
terminating
party unless the non-terminating party has cured such breach.
24.3
Termination
for Convenience: Either
party may terminate this Agreement without cause upon 90
days
written notice to the other party.
24.4
Effect
of Termination: Upon
the
termination or expiration of, this Agreement, Statmon shall continue
to fill any Orders placed by Xxxxxx and all outstanding Xxxxxx quotation(s)
to
End
User(s) for a period
of
ninety (90) days from the date of termination or expiration.
ARTICLE
25
– AGREEMENT
EXTENSION
After
the
initial Term of
this
Agreement and other subsequent expirations; and if this Agreement has not
been
terminated pursuant to Article 24, this Agreement will automatically
renew for a one (1) year extension
unless either party provides written notice of its intention not to renew this
Agreement
at least six
(6)
months prior to the end of the then effective Term.
ARTICLE
26 – LIMITATION
OF LIABILITY
26.1
NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT STATMON
AND
XXXXXX AND THEIR AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL NOT
BE
LIABLE
FOR ANY INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, OR CONSEQUENTIAL DAMAGE
OR
LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE
USE
OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OTHER
ITEMS,
OR
SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF
CONTRACT,
TORT, INCLUDING NEGLIGENCE AND NEGLIGENCE INDEMNITY, OR STRICT LIABILITY.
THIS
SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. IN
NO
EVENT WILL EITHER PARTY'S LIABILITY TO EACH OTHER FOR DIRECT DAMAGES
EXCEED THE AGGREGATE SALE PRICE OF
THE
PRODUCTS DELIVERED HEREUNDER.
Proprietary
14
ARTICLE
27 – ASSIGNMENT
Except
as
provided in this Article, neither party shall assign this Agreement
or any right or interest
under this Agreement, nor delegate any work or obligation to be performed under
this Agreement, (an
"Assignment") without the other party's prior written consent. Notwithstanding
the foregoing, nothing herein
shall preclude an Assignment by either party to an Affiliate without the consent
of the other party provided
in each case, however, that a) the party seeking an Assignment is not in
material breach or
default of
this
Agreement and b) any Assignment shall not include an Assignment by either party
to
any
party or entity
who 1) in the reasonable opinion of the non-assigning party, has insufficient
credit limits, 2) is a manufacturer
of telecommunications products or services in competition with Xxxxxx,
or 3) is a party to a contract
or agreement with Xxxxxx whereby Xxxxxx has agreed to supply the Products
or
Licensed Materials available
for procurement by Xxxxxx under this Agreement. Assignment
of this Agreement shall not relieve the
assigning party of any of its obligations hereunder unless otherwise
agreed
to
in
writing
by the non-assigning
party.
ARTICLE
28 – FORCE
MAJEURE
Neither
party shall be held responsible for any delay or failure in performance of
any
part of this Agreement
to the extent such delay or failure is caused by fire, flood,
earthquake, explosion, war, terrorism,
strike, embargo, governmental action or failure to act, the act of any
civil
or
military authority, act
of
God, or by any other causes beyond its control whether or not similar to the
foregoing.
ARTICLE
29 – NON
WAIVER
No
course
of dealing or failure of either party to strictly enforce any term, right
or
condition of this
Agreement shall be construed as a modification or waiver of such term, right
or
condition. No
waiver
of
breach
of any provision of this Agreement shall be construed to be a waiver of any
subsequent
breach of the same or other provision.
ARTICLE
30 – RELEASES
VOID
Neither
party shall require waivers or releases of any personal rights from
representatives of the other
party in connection with visits to its premises, and both parties agree that
no
such releases or waivers
shall be pleaded by them or by third persons in any action or
proceeding.
ARTICLE
31 – SEVERABILITY
If
any
provision or part hereof shall be held to be invalid or unenforceable for any
reason, then the
meaning of such provision or part hereof shall be construed so as to render
it
enforceable to
the
extent feasible.
If
no
feasible interpretation would save such provision or part hereof, it
shall
be severed, herefrom,
but without in any way affecting the remainder of such provision or
any
other provision contained
herein, all of which shall continue in full force and effect unless such
severance effects such a material
change as to render the Agreement unreasonable.
ARTICLE
32 –
CHOICE
OF LAW
The
construction and interpretation of, and the rights and obligations of the
parties pursuant
to this Agreement, shall be governed by the laws of the State of California,
without regard to its conflict of laws provisions.
Proprietary
15
ARTICLE
33 – NO
AGENCY
Neither
Xxxxxx nor Statmon shall be considered the agent of the other
for
any purpose or authorized
to bind the other in anyway. The relationship between Xxxxxx and Statmon is
that
of
Buyer
and Seller.
Neither party is authorized to incur any expenses, chargeable to the
other
or
represent itself as having
any relationship with the other party except as specifically set forth in this
Agreement.
ARTICLE
34 – HEADINGS
The
article and paragraph headings contained herein are for convenience only
and
are not intended
to affect the meaning or interpretation of this Agreement.
ARTICLE
35 – NOTICES
Any
notice, demand or other communication (other than an Order) required, or which
may be given,
under this Agreement shall, unless specifically otherwise provided in this
Agreement, be in writing and
shall
be given or made through nationally recognized overnight courier service,
confirmed
facsimile, or
certified mail, return receipt requested and shall be addressed to the
respective parties as
follows:
a)
To
Xxxxxx:
Xxxxxx
Corporation, Broadcast Division
0000
Xxxxxxx Xxx
Xxxxx,
Xxxx 00000
Attn:
Xx.
Xxxx XxXxxx
DTV
&
Mobile Video Product Management With
copy
to:
Xxxxx
Xxxxx, Senior Counsel, Commercial and International Operations
b)
To
Statmon:
000
X.
Xxxxx Xxxxx, Xxxxx 000 Xxxxxxx Xxxxx, XX 00000
Attention:
Xxxxxxxx X. Xxxxxx, President
Either
party may change its address for receiving notices upon written notice to the
other party.
Written
electronic notices transmitted to an address designated for such purpose by
the
intended receiving party
shall be effective when received and may be deemed received not later
than
the
day following transmittal.
ARTICLE
36 – SURVIVAL
OF RIGHTS AND OBLIGATIONS
The
rights and obligations of both parties hereunder, which by their nature would
continue beyond
the termination, cancellation or expiration hereof, shall survive such
termination, cancellation or expiration including Statmon's obligations under
Article 9, 11, 17, 19, 38, 41
and
42.
ARTICLE
37 – MARKETING/PUBLICITY
37.1
Xxxxxx
will cease to market and promote the ReCon brand and will make commercially
reasonable efforts
to promote the Axess brand as the preferred remote monitoring and
control solution for major transmitters remote control
environments.
37.2
Neither
party shall make or cause to be made any public announcement regarding the
relationship of
the
parties hereunder or the existence of this Agreement or any of its terms without
the
prior
written consent
of the other party, such consent not to be unreasonably withheld. Except
as
otherwise provided in
this
Agreement, each party shall submit to the other proposed copy of all advertising
wherein the name, trademark,
code, specification or service xxxx of the other party or its Subsidiaries
or
Affiliates is mentioned.
Neither party shall publish or use such advertising without the other's prior
written approval.
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16
ARTICLE
38 – ESCROW,
RELEASES and LICENSES
38.1
The
original versions of information, documentation and materials relating to the
Software and to the
manufacturing and test procedures used by Statmon for the Products were
deposited in escrow ("Deposit Materials")
by Statmon pursuant to terms of the Agreement for Purchase & Sale of Remote
Monitoring Products
entered into by the Parties on February 25, 2003, and in accordance with the
terms of the Escrow Agreement
and Amendment thereto, Appendix B. Statmon shall keep the Deposit Materials
current by promptly
depositing the most recent versions thereof, and Xxxxxx shall bear all costs
related to the Escrow Agreement
and the Deposit Materials. The Deposit Materials shall include, but not be
limited to the Licensed
Materials, a master copy of the Software on CD in compiled form, Source Code,
program listings, tools,
data files, manuals and flow charts sufficient to compile and to maintain and
enhance the Software, together with any revisions and modifications for fixes;
documentation reasonably sufficient for Xxxxxx to manufacture, test and maintain
the Products, including, but not limited to, specifications, manufacturing
procedures,
parts lists, vendor lists, test procedures, quality control processes and
maintenance information relating to the Products.
38.2
For
the
purposes of "Release Conditions" under Article 4.1 of the Escrow Agreement,
any
of the following
shall be deemed to be a "Depositor's failure to carry out obligations imposed
pursuant to the Purchase
and Sale Agreement":
| (a) |
If
Statmon fails to meet delivery schedules for the Software portion
of any
Product, as
evidenced by delivery delays of more than thirty (30) days, the master
copy of the Software
or CD in its compiled form shall be released from escrow to Xxxxxx,
and
Statmon
shall provide access to an internet ftp site' allowing Xxxxxx to
download
copies
of the Software as needed, and the licenses granted in Art. 17 shall
apply
to such
Software and copies for use with existing and prospective customers.
If
and when
Statmon cures the delivery delays, Xxxxxx shall be obligated to redeposit
the master copy of the Software, unless Xxxxxx has terminated the
Agreement pursuant to Section 24.2
hereof.
|
| (b) |
If
Statmon fails to meet delivery schedules for the Hardware portion
of any
Product, as
evidenced by delivery delays of more than thirty (30) days from date
of a
firm order from Xxxxxx, and provided such delay is not caused by
a
shortage of parts beyond
the control of Statmon or the manufacturer, the related manufacturing
and
testing documentation held in escrow by Statmon shall be released
from
escrow to Xxxxxx
and Xxxxxx shall have the right to contract directly (without interference
from Statmon)
with the manufacturers and suppliers of the '
Hardware
portions of the Product.
In the event of the demise of Statmon's manufacturer and Statmon's
inability
to provide a replacement source acceptable to Xxxxxx, Statmon hereby
grants
to Xxxxxx the non-exclusive, worldwide, irrevocable, perpetual, royalty
free license
to use such documentation and practice under any related intellectual
property
rights of Statmon to make, have made, use, sell and lease Products,
effective
upon release of such documentation from
escrow.
|
| (c) |
If
Statmon: i) delays delivery of any Product for any reason for more
than 90
days; or ii)
fails to support, repair or replace any Software as required under
the
terms of this Agreement after being given afforded a reasonable
opportunity to do so, which such time
period being no less than ninety (90) days; or (iii) ceases to exist
as a
legal entity in
its current form excluding any name change or merger then all Deposit
Materials relative
to the Product(s) shall be released from
escrow
to Xxxxxx, and Statmon hereby grants
to Xxxxxx a non-exclusive, worldwide, irrevocable, perpetual, royalty
free
license
to use the Deposit Materials and practice under the related intellectual
property rights of Statmon to make, have made, use, improve and enhance
the related Products for the existing
customers..
|
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17
ARTICLE
39 – ENTIRE
AGREEMENT
39.1
This
Agreement, which
includes any exhibits or attachments hereto, represents the entire Agreement
and
understanding between the parties and all prior discussions and arrangements
between the parties,
whether oral or written, are merged into this Agreement and there are no other
representations, understandings,
arrangements or agreements between the parties, except as expressly set forth
herein. Neither party shall be bound by any conditions, definitions, warranties,
understandings, or representations with
respect to the subject matter hereof other than as expressly provided in this
Agreement.
39.2
This
Agreement may be modified only by written amendment and signed by authorized
representatives
of the parties. No course of dealing or usage of trade shall be invoked to
modify the terms or
conditions of the Agreement.
ARTICLE
40 – DISPUTE
RESOLUTION
If
a
dispute arises out of, or relates to, this Agreement or the subject matter
of
this Agreement other
than with respect to a claim for equitable relief, either party may submit
the
dispute to a sole mediator selected by the parties or, at any time prior to
selection of a sole mediator, to mediation by the American Arbitration
Association ("AAA"). If not thus resolved, it shall be referred to a sole
arbitrator selected
by the parties or to AAA arbitration. The arbitration shall be governed by
the
United States Arbitration
Act and judgment on the award may be
entered
by any court having jurisdiction. The
arbitrator
shall have the authority to award injunctive and other emergency relief, which
shall be enforceable by either the arbitrator or any court with jurisdiction
over the enjoined party or its assets. The arbitrator
shall not have authority to award punitive or consequential damages.
The
arbitrator shall not limit, expand or modify the terms of the Agreement nor
award damages in excess of compensatory damages,
and each party waives any claim to such excess damages. A request by a party
to
a court for interim
protection shall not affect either party's obligation here under to mediate
and
arbitrate. Each party shall
bear its own expenses and an equal share of all cost and fees of the mediation
and/or arbitration. Any
arbitrator selected shall be competent in the legal and technical aspects of
the
subject matter of this Agreement.
The content and result of mediation and/or arbitration shall be held in
confidence by all participants,
each of whom will be bound by an appropriate confidentiality
agreement.
ARTICLE
41–
ASSUMPTION
OF RISK
Each
party hereto acknowledges (i) the risks of its undertakings hereunder, (ii)
the
uncertainty of the
benefits and obligations hereunder, and (iii) its assumption of such risks
and
uncertainty. Each party has conducted
its own due diligence and requested and reviewed any contracts, business plans,
financial documents
and other written material as in such party's opinion shall be the basis of
the
party's decision to
enter
into this Agreement.
ARTICLE
42 – RELIANCE
ON COUNSEL AND OTHER ADVISORS
Each
party has consulted such legal, financial, technical or other expert it deems
necessary or desirable
before entering into this Agreement. Each party represents and warrants that
it
has read, knows, understands
and agrees with the terms of conditions of this Agreement. Neither party has
relied upon any oral
representation of the other party in entering into this Agreement. All
discussions, estimates or projections
developed by a party during the course of negotiating the terms and conditions
of this Agreement
are by way of illustration only, and, unless specifically contained in this
Agreement or one of its
Appendixes, are not binding or enforceable against the other party in law or
in
equity.
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18
IN
WITNESS WHEREOF, the parties have caused this Agreement for Purchase
and
Sale
of Remote
Monitoring Products to be executed by their respective representatives on the
date(s)
indicated.
STATMON
TECHNOLOGIES
|
By:
|
/s/
GEOFEREY
TALBOT
|
|||
|
Name:
|
GEOFEREY
TALBOT
|
|||
|
Title:
|
CEO
|
|||
|
Date
:
|
June
6, 0000
|
XXXXXX
XXXXXXXXXXX
|
By:
|
/s/
Xxxx
X. Xxxxx
|
|||
|
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
VP
& GM Television Broadcast Systems
|
|||
|
Date
:
|
Proprietary
19
