Exhibit 16.1
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DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT IS MADE AS OF THE 27th DAY OF SEPTEMBER, 2005, by and
between NeoMedia Technologies, Inc., a Delaware corporation with its principal
place of business at 0000 Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, XX, 00000, XXX,
("Supplier") and Micropaint de Mexico S.A, a corporation operating under the
laws of Mexico, with its principal place of business at Edificio Plaza
Intercontinental Avenue Xxxxx Xxxxx #350, Xxxxx del Campestre Xxxxx Xxxxxx,
Monterrey, Nuevo Xxxx, Mexico 66265, ("Distributor").
ARTICLE I
DEFINITIONS
When used in this Agreement, the following terms shall have the meanings
indicated. The meanings shall be applied whether the singular or the plural form
of the term is used.
"Affiliate" means any company controlled by, controlling, or under common
control with Supplier.
"Agreement" means this agreement, and the attachments, together with all
amendments thereto. "Attachment" means any form or exhibit attached to this
agreement.
"Customer" means any person who purchases Products from Distributor.
"Shipping Point" means any facility designated by Supplier as the origination
point for shipment of the Products.
"Products" means the products described in the attached Attachment A. Products
may be deleted from or added to Attachment A and Supplier may change the
specifications and design of Products at its sole discretion at any time by
mailing written notice of such changes to Distributor.
"Territory" means the geographic area or areas set forth in Attachment B.
"Trademark" means any trademark, logo, or service xxxx, whether or not
registered, used to represent or describe the Products of Supplier.
ARTICLE II
APPOINTMENT OF DISTRIBUTOR
1.1 Appointment. Supplier hereby appoints Distributor as Supplier's
exclusive distributor of Products in the Territory, and Distributor accepts that
position. It is understood that, in such areas of the territory where
Distributor is a non-exclusive distributor as outlined in Attachment B, Supplier
cannot lawfully prevent its distributors located elsewhere from supplying
Products for sale or use within the non-exclusive portions of the Territory and
that it has no obligation to do so. Distributor agrees that Supplier will be its
sole supplier of the Products in the Territory as long as this Agreement is
effective.
Supplier acknowledges that it is the legal owner of all intellectual
property, trademarks and patents referred in this agreement, and has the rights
to exploit them in the manner, and allow the distributor to exploit in the terms
defined in this agreement.
1.2 Relationship of Parties. Supplier and Distributor are each independent
contractors and nothing in this Agreement will be construed or interpreted as
creating an employer/employee, agency, joint venture or any similar relationship
between the parties. Consequently, (a) Distributor is and will remain an
independent purchaser and user of the Products, (b) neither party will have or
exercise any right or authority to assume or create any obligations or
responsibilities, including without limitation contractual obligations, on
behalf of or in the name of the other party,
and (c) each party hereto will be exclusively responsible for paying all income
and other taxes and costs and all expenses relating to its respective business.
1.3 Sale of Products by Distributor. Distributor shall use its best
efforts to distribute the Products and to fully develop the market for the
Products within the Territory.
1.4 Competing Products. Distributor agrees that it will not distribute or
represent any Products in the Territory that compete with the Products during
the term of this Agreement or any extensions thereof.
1.5 Advertising. Distributor shall be entitled, during the term of the
distributorship created by this Agreement and any extension thereof, to
advertise and hold itself out as an authorized Distributor of the Products. At
all times during the term of the distributorship created by this Agreement and
any extension thereof, Distributor shall use the Trademarks in all
advertisements and other activities conducted by Distributor to promote the sale
of the Products. Distributor shall submit samples of all proposed advertisements
and other promotional materials for the Products to Supplier for approval and
Distributor shall not use any such advertisements or promotional materials
without having received the prior written consent of Supplier to do so.
Distributor shall not, pursuant to this Agreement or otherwise, have or acquire
any right, title or interest in or to Supplier's Trademarks.
1.6 New Products. If Supplier or any Affiliate now or hereafter
manufactures or distributes, or proposes to manufacture or distribute, any
product other than the Products, Supplier shall immediately notify, or cause
such Affiliate to notify, Distributor of that fact and of all details concerning
that product. Distributor may request from Supplier distribution rights for that
product in the Territory, or any portion thereof, and if so requested, Supplier
shall grant, or shall cause the subject Affiliate to grant, such distribution
rights to Distributor on terms and conditions no less favorable than those
provided in this Agreement with respect to Products. If Distributor does not
obtain those distribution rights or obtains them only for a portion of the
Territory, and Supplier or an Affiliate later desires to offer those
distribution rights for the Territory or any portion thereof to another party,
Supplier shall first, or shall cause such Affiliate to first, make that offer in
writing to Distributor on terms and conditions which shall be specified fully in
that offer. That offer shall contain a full description of the subject product
and its operation. Distributor may request, and Supplier shall promptly provide,
or shall cause such Affiliate promptly to provide, further information
concerning the product or the offer. If Distributor fails to accept such offer,
Supplier or the Affiliate may then offer the product to another party for
distribution in the Territory, but may not offer it on terms and conditions more
favorable than those offered to Distributor. If Supplier or the Affiliate
desires to make a better offer to another party, Supplier shall first, or shall
cause the affiliate first to, make such better offer to Distributor in
accordance with the procedure set forth above.
1.7 Distributor Sales, Service and Storage Facilities. Distributor shall,
at its expense, engage and maintain a sales, service and storage organization in
the Territory, staffed with such experienced personnel as are necessary to
enable Distributor to perform its obligations under this Agreement. Distributor
shall, at its expense, maintain facilities and personnel in the Territory that
will enable it promptly and satisfactorily to perform, at a reasonable price,
all inspection, maintenance and other necessary servicing of Products sold by
Distributor. Distributor shall, at its expense, at all times store and maintain
its inventory of Products in accordance with current, applicable instructions
issued by Supplier from time to time. Distributor shall, at its expense, fully
explain and demonstrate to the customer the proper method of operating and
maintaining the Products.
1.8 Legal Compliance. Distributor and its affiliates shall each comply
with all national, state or provincial, and local or municipal laws, ordinances,
by-laws, rules, regulations, orders, rulings and permits applicable to its
performance under this Agreement. Distributor and its affiliates agree to
promptly make all reports to and filings with governmental agencies required by
applicable laws, by-laws, rules and regulations and to obtain all approvals,
licenses, permits and permissions necessary for its operations under this
Agreement. Distributor shall pay its own costs incurred in making such filings
and reports and in obtaining such approvals, licenses, permits and permissions.
ARTICLE III
TERMS OF PURCHASE AND SALE OF PRODUCTS
2.1 Purchase of Product. Distributor shall purchase its requirements for
the Products from Supplier. Such requirements shall include purchasing and
maintaining an inventory of Products that is sufficient to enable Distributor to
perform its obligations hereunder. Supplier shall supply to Distributor
sufficient Products to enable Distributor to meet the full demand for Products
in the Territory. All orders for Products transmitted by Distributor to Supplier
shall be deemed to be accepted by Supplier at the time such orders are received
by Supplier to the extent that they are in compliance with the terms of this
Agreement and Supplier shall perform in accordance with all accepted orders.
Supplier shall confirm its receipt and acceptance of each order within 3 days of
receipt of the order.
2.2 Purchases for Resale. All Products purchased by Distributor shall be
purchased solely for commercial resale to, or use by, retail facilities owned or
franchised by Distributor, excepting those Products reasonably required by
Distributor for advertising and demonstration purposes.
2.3 Order Procedure. Each order for Products issued by Distributor to
Supplier under this Agreement shall identify that it is an order and shall
further set forth the description and quantity of Products which are to be
delivered on each of such dates. The individual contracts for the sale of
Products formed by Distributor's submission of orders to Supplier pursuant to
the terms and conditions hereof shall automatically incorporate, to the extent
applicable, the terms and conditions hereof, shall be subject only to those
terms and conditions (together with all terms in orders which are contemplated
by this Agreement) and shall not be subject to any conflicting or additional
terms included in any documents exchanged in connection therewith.
Notwithstanding anything in this Section, Supplier and Distributor may, by
written agreement, modify the terms and conditions of this Agreement.
2.4 Cancellation of Orders. All cancellation of orders by Distributor
shall be in writing, or if not initially in writing, shall be confirmed in
writing. If Distributor cancels an order, which has been accepted by Supplier,
Distributor shall reimburse Supplier for any cost incident to such order
incurred by Supplier prior to the time it was informed of the cancellation.
2.5 Purchase Price. The prices for Products, and any discounts applicable
thereto, are set forth in Attachment A. All prices are F.O.B. the Shipping Point
in the USA. If the price for any Product is not set forth on Attachment A and
Distributor nevertheless orders such a Product from Supplier, the parties hereby
evidence their intention thereby to conclude a contract for the sale of that
Product at a reasonable price to be determined by the Parties mutually
negotiating in good faith.
2.6 Price Changes. Supplier reserves the right, in its sole discretion, to
change prices or discounts applicable to the Products. Supplier shall give
written notice to Distributor of any price change at least 120 days prior to the
effective date thereof. The price in effect as of the date of Distributor's
receipt of notice of such price change shall remain applicable to all orders
received by Supplier prior to that effective date. Supplier commits to make best
efforts not to change prices more than once annually, unless there is a
reasonable business situation (such as rapid increase in costs) to change prices
more frequently.
2.7 Packing. Supplier shall, at its expense, pack all Products in
accordance with Supplier's standard packing procedure, which shall be suitable
to permit shipment of the Products to the Territory; provided, however, that if
Distributor requests a modification of those procedures, Supplier shall make the
requested modification and Distributor shall bear any reasonable expenses
incurred by Supplier in complying with such modified procedures which are in
excess of the expenses which Supplier would have incurred in following its
standard procedures.
2.8 Delivery: Title and Risk of Loss. All deliveries of Products sold by
Supplier to Distributor pursuant to this Agreement shall be made F.O.B. the
Shipping Point, and title to and risk of loss of Products shall pass from
Supplier to Distributor at the Shipping Point. Supplier shall be responsible for
arranging all transportation of Products, but if requested by Supplier,
Distributor shall, at Supplier's expense, assist Supplier in making such
arrangements. Supplier shall also procure insurance for the transportation of
the Products, and such insurance shall be of a kind and on terms current at the
port of shipment.
2.9 Inspection and Acceptance. Promptly upon the receipt of a shipment of
Products, Distributor shall examine the shipment to determine whether any item
or items included in the shipment are in short supply, defective or damaged.
Within 10 days of receipt of the shipment, Distributor shall notify Supplier in
writing of any shortages, defects or damage, which Distributor claims existed at
the time of delivery. Within 30 days after the receipt of such notice, Supplier
will investigate the claim of shortages, defects or damage, inform Distributor
of its findings, and deliver to Distributor Products to replace any which
Supplier determines, were in short supply, defective or damaged at the time of
delivery. Unless notice is given as provided in this Section, Distributor shall
be deemed to have accepted such Products and to have waived all claims for
shortages, defect or damage.
2.10 Warranty. SUPPLIER MAKES NO WARRANTY WHATSOEVER CONCERNING THE
PRODUCTS. THE PRODUCTS ARE SOLD "AS IS" WITHOUT EXPRESS OR IMPLIED WARRANTY OF
ANY KIND. SUPPLIER FURTHER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. DISTRIBUTOR
ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE
PRODUCTS AND THE SYSTEM REMAINS WITH DISRIBUTOR. TO THE EXTENT THAT A PARTICULAR
JURISDICTION DOES NOT ALLOW FOR THE EXCLUSION OF IMPLIED WARRANTIES, ANY IMPLIED
WARRANTIES UNDER THIS AGREEMENT ARE LIMITED TO THIRTY (30) DAYS WITHOUT
AFFECTING ANY OTHER LIMITATION CONTAINED IN THIS AGREEMENT
2.11 Payment. Supplier will invoice Distributor for each purchase order
received by Supplier upon the complete shipment of the Products specified in the
purchase order. Unless otherwise agreed to in writing by the parties,
Distributor will pay all invoices 30 days of receipt of such invoice. All
payments by Distributor under this Agreement shall be payable to Supplier by
Distributor in the official and legal currency of the United States of America.
Such payment shall be made by wire transfer of immediately available funds to an
account specified by Supplier. Without prejudice to the other provisions of this
Section or any other right or remedy of Supplier , if Distributor is in arrears
with respect to any payment due to Supplier , or in the reasonable opinion of
Supplier , Distributor is or will be unable to pay its debts as they fall due,
then: (a) Supplier may elect not to deliver the Products except against
contemporaneous payment by Distributor in cash in full of all amounts due and
owing to Supplier ; and (b) all amounts owed to Supplier by Distributor shall
become immediately due and payable.
2.12 Labeling. Supplier will deliver all Products to Distributor's common
carrier properly packaged and labeled in shipping cases. Distributor will
instruct Supplier at the time of placing its order as to whether the Product
containers themselves should be labeled by Supplier. If so instructed, Supplier
will apply labels supplied by Distributor to the Products at the sole cost of
Distributor. Distributor will provide a copy of each of the labels to Supplier
for its review and approval before final printing, such approval not to be
unreasonably withheld. Before final printing, Distributor will make all changes
to the label designated by Supplier in writing as necessary to comply with laws
or regulations. In the event that Distributor instructs Supplier not to label
containers, Distributor will be responsible for the cost of labeling the
Products at or en-route to their destination.
ARTICLE III
TERMINATION
3.1 Termination. This contract shall be renewed automatically each year,
unless terminated by the Distributor. The Distributor may terminate this
Agreement for any reason by providing 30 days notice of such termination to the
other party. Such notice will be in effect immediately upon the receipt of the
notice by the other party. The expiration or termination of this Agreement will
not release or affect the obligations of
either party to timely pay all amounts then or thereafter due to the other
party. Supplier can terminate this contract if there is a significant breach of
this agreement by the Distributor, not resolved within 60 days notice.
3.2 Limitation of Liability. Neither Distributor will be liable to
Supplier nor Supplier will be liable to Distributor due to the termination or
expiration of this Agreement in accordance with its terms. Neither party will be
entitled to any compensation, reimbursement or damages from the other for: (a)
loss of prospective compensation, profits or income or other consequential
damages; (b) loss of anticipated sales; (c) goodwill or loss thereof; or (d)
expenditures, expenses, investments, leases or any type of commitment made in
connection with, or in reliance upon, this Agreement.
ARTICLE IV
CONFIDENTIAL INFORMATION AND TAMPERING
4.1 Confidential Information. Distributor covenants and agrees that it
shall not, directly or indirectly, during the term of this Agreement, or at any
time thereafter, take any steps or induce any other party to reproduce, reverse
engineer or otherwise ascertain the formulas for any such Product, nor shall it
attempt or induce any other party to manufacture or produce such Product. Those
items shall at all times and for all purposes be held by Distributor in a
confidential capacity and shall not, without the prior written consent of
Supplier, (i) be disclosed by Distributor to any person, firm or corporation,
excepting those persons, agents, firms, or corporations related to the
Distributor who are required to utilize such items in connection with the sale,
inspection, repair or servicing of Products during the term of the
distributorship created by this Agreement or any extension thereof, or (ii) be
disclosed to any person, firm or corporation, or copied or used by Distributor,
its employees or agents at any time following the expiration or termination of
this Agreement or any extension thereof. Supplier may require as a condition to
any disclosure by Distributor pursuant to this Section that any person, firm, or
corporation to whom disclosure is to be made sign a confidentiality agreement,
enforceable by Supplier, containing terms defined in this agreement.
4.2 Non-tampering Agreement. Distributor agrees to refrain from tampering
with, altering or modifying the Products without the express written consent of
Supplier. In order to ascertain that Distributor is complying with this
obligation, Supplier shall be entitled, at any reasonable time, to remove and
test samples of the Products from Distributor's inventory or the inventory of
Distributor's affiliates, sub-distributors, franchisees or dealers. Supplier
will not be required to pay for these samples. Supplier will promptly replace
all such samples at its cost. Supplier will take the smallest quantities
reasonably necessary for testing and will not take a quantity of the Products at
any affiliate, sub-distributors, franchisees or dealers location that will
impair the ability of the affiliate, sub-distributors, franchisees or dealers to
serve its customers. An independent certified laboratory selected by Supplier
will do all testing of these samples. The cost of such testing will be borne by
Supplier unless the testing demonstrates that the Products sampled were not
supplied to Distributor by Supplier or have been tampered with, altered or
modified without the written consent of Supplier, in which case the cost of
testing will be borne by Distributor. All intellectual properties relating to
any products that were the result of any tampering conduct, such intellectual
properties shall belong to Supplier.
ARTICLE V
DISPUTE RESOLUTION
5.1 Unaided Negotiations. All disagreements, disputes and controversies
(each, a "dispute") between the parties arising from or relating to this
Agreement, including, but not limited to, allegations of fraud and
misrepresentation, shall be settled by the procedures specified in this Article.
If one party believes the other party has breached this Agreement, that party
shall promptly notify the other party in writing. The party receiving such a
notice shall respond in writing within seven (7) days after receipt. If the
dispute is not promptly resolved there shall follow, within twenty (20) days,
after written notice, a meeting of the representatives of the parties. The
purpose of the meeting shall be to discuss and negotiate in good faith, a
resolution of any outstanding dispute. All negotiations pursuant to this Article
are confidential and shall be treated as compromise and settlement negotiations.
5.2 Mediation. If unaided negotiations fail to bring about a prompt
resolution of the dispute, then within twenty (20) days following the meeting of
the parties, the parties shall initiate a voluntary, non-binding mediation
conducted by a mediator mutually-agreed upon by the parties. If the parties are
not able to agree upon a mediator, they shall request that the Canadian
Arbitration Association appoint a capable mediator for them. The parties shall
bear equally the costs and expenses of this mediation and endeavor in good faith
to resolve their differences. Mediation pursuant to this Article is confidential
and shall be treated as compromise and settlement negotiations.
5.3 Choice of Law; Litigation. This Agreement will be construed under and
subject to the laws of the State of Florida, USA, but does is entitled to other
remedies under local laws and regulations. The parties agree to waive any
provision in the United Nations Convention on the Law Applicable to the
International Sale of Goods or any other treaty or international convention to
which Canada or the USA are or may become signatories which might lead to a
different choice of law. The parties hereto agree to submit all disputes arising
from or relating to this Agreement to the Canadian Arbitration Association for
arbitration in accordance with its rules and regulations. There shall be three
(3) arbitrators, one selected by Supplier, one selected by Distributor, and the
third selected by the Court of Arbitration with mutual consents of both Parties,
who shall concurrently serve as Chairman of the arbitration panel. The
arbitration award shall be final and binding upon the parties. The costs of
arbitration shall be borne by the losing party or as otherwise determined by the
arbitration panel. Any award of the arbitration shall be enforceable by any
court having jurisdiction over the party or parties against which the award has
been rendered, or wherever assets of the party or parties against which the
award has been rendered are located. The parties hereby waive any claim or right
to immunity for itself, or any of its assets, from the jurisdiction of any court
with respect to enforcement of an arbitral award rendered pursuant to this
Agreement. An arbitration clause does not prevent any party from requesting
interim conservatory measures from the courts. In resolving of the dispute,
except for the disputed part, other parts of the Contract shall be performed
accordingly.
ARTICLE VI
INDEMNIFICATION AND LIABILITY LIMITATION
6.1 Distributor Indemnification of Supplier. Distributor agrees to comply
with all municipal, city, Provincial and Federal laws, by-laws, regulations,
ordinances and any other regulations with which it must comply. Distributor
shall hold Supplier, its officers, directors, employees, agents, successors and
assigns harmless against, and will reimburse Supplier for, all losses, claims,
damages, judgments, costs and expenses of whatever form and nature, including,
without limitation, attorneys' fees, court costs and litigation expenses,
whether direct or indirect, that Supplier, or any of is officers, directors,
employees, agents, successors or assigns, may sustain or incur as a result of:
(a) any failure by Distributor and/or its directors, officers, employees,
dealers, affiliates, franchisees and sub-distributors (collectively, the
"Distributor Parties") to comply with any municipal, city, Provincial and
Federal law, by-law, regulation, ordinance or any other regulation, (b) any
distribution, sale, use or misuse of the Products by the Distributor Parties;
(c) any loss, claim or action based on the negligence, misfeasance or
nonfeasance of the Distributor Parties, including, but not limited to, actions
by each or any Distributor Party involving or administering training concerning
the Products or any environmental liability involving, relating to or arising
from the Products.
(a) Supplier shall not be obligated or liable for any injury or death of
any person or damage to any property caused by the Distributor's action, failure
to act, negligence or willful conduct, nor for any liability of the Distributor,
whether or not the same be covered by insurance arranged pursuant to this
Agreement. For purposes of this Agreement, if the Distributor can control or
cause the actions or omissions of any Distributor Party, or can control or cause
any Distributor Party's to omit to take any action, Supplier shall not be
obligated or liable for any injury or death of any person or damage to any
property caused by the any Distributor Party's action, failure to act,
negligence or willful conduct, nor for any liability of the Distributor Party,
whether or not the same be covered by insurance arranged pursuant to this
Agreement or otherwise.
(b) The Distributor shall save Supplier and its affiliates and its and
their respective shareholders, directors, officers, partners, members, employees
and agents harmless from:
(i) All fines, suits, proceedings, claims, demands or actions of any
nature or kind whatsoever, directly or indirectly arising out of, or in any
manner whatsoever associated or connected with the Distributor's operations,
including without limitation, all claims made in respect of loss of or damage to
customer's vehicles or the contents thereof;
(ii) All costs, expenses and damages, including legal costs on a solicitor
and client basis incurred by Supplier in enforcing the provisions of the
Agreement against the Distributor; and against any and all damages, costs,
expenses and fees incurred by on behalf of any of the foregoing in the
investigation, prosecution or defense of any and all such suits, proceedings,
claims, demands or actions.
(c) The Distributor shall hold Supplier and any of its affiliates and its
and their respective directors, shareholders, officers, partners, members and
employees harmless from and against any and all taxes that the Distributor may
be required by applicable law to pay.
(d) This Agreement, the documents incorporated by reference herein, and
the attachments hereto constitute the entire agreement between the parties and
all prior negotiations, commitments, conditions, representations, warranties and
undertakings are merged herein. Except as herein provided, there are no oral or
written conditions, representations, warranties, undertakings or agreements made
by Supplier to the Distributor relating to the subject matter hereof. Supplier
and Distributor specifically acknowledge and agree that the Distributor has
entered into this Agreement after making an independent investigation of the
operations of Supplier and not upon any representation made by Supplier as to
the profits which the Distributor might expect to realize, nor has anyone made
any other representation which is not expressly set forth herein to induce the
Distributor to execute and deliver this Agreement. The Distributor hereby
represents and warrants to Supplier that all written statements made by the
Distributor to Supplier prior to the execution of the Agreement, including,
without limitation, all statements pertaining to the Distributor's financial
standing, were true when made and continue to be true at the time of execution
of this Agreement (unless subsequently corrected in writing), and in the event
that such representation or warranty is untrue, Supplier shall, at its option,
be entitled to terminate this Agreement without prejudice to any other remedies
that it may have.
(e) Nothing in this Agreement shall be interpreted as requiring the
Distributor to sell any product or provide any service at a price stipulated by
Supplier or any other person. However, Supplier may establish, maintain and
advertise a suggested schedule of retail prices, although the Distributor shall
be under no obligation whatsoever to comply with same, and shall suffer no
penalty from Supplier for non-compliance.
(f) The Distributor acknowledges that Supplier may receive rebates from
suppliers of Supplier or the Distributor in respect of purchases made by
Supplier or Distributor and expressly acknowledges and confirms that the
Distributor shall have no rights in respect of, or entitlement to, such rebates.
(g) This Agreement shall inure to the benefit of and be binding upon the
Distributor and its successors and assigns but shall be personal to and
non-assignable by the Distributor, except with the prior written consent of
Supplier, which may not be unreasonably withheld. Any purported assignment of
the rights of the Distributor hereunder without such consent by Supplier shall
permit Supplier to immediately terminate this Agreement. For the purpose of this
provision the term "assignment" shall include any sale, assignment, transfer,
pledge, hypothecation, encumbrance or other disposition of this Agreement or of
the Distributor's rights hereunder, including, but not limited to, any transfer
or assignment resulting from the death of the Distributor, bankruptcy of the
Distributor, or otherwise resulting by operation of law. In the event that this
Agreement is made with or assigned to a corporation, the term "assignment" shall
also include any change in voting control of the Distributor from the person or
persons who hold(s) such control on the date of this Agreement.
(h) Supplier shall save Distributor and Distributor's Parties from any
claim against them related to the infringement by the Supplier of patents,
trademarks and/or third party intellectual property rights, in relation of the
use by Distributor of patents, trademarks and intellectual property as defined
in this agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers or employees.
NEOMEDIA TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: CEO
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DISTRIBUTOR:
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By: /s/ Xxxx X. Xxxx
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Name: Xxxx X. Xxxx
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Title: Chairman
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