EXHIBIT 10.20
PRODUCTION AGREEMENT
THIS AGREEMENT is made and entered into as of the 14th day of February,
2002, by and among IMAGE SENSING SYSTEMS, INC., a Minnesota corporation with its
principal place of business at 000 Xxxxxx Xxxx Xxxxxx, 0000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000, Xxxx Xx. Xxxx, Xxxxxxxxx 00000 ("ISS"); WIRELESS TECHNOLOGY, INC., a
Nevada corporation with its principal place of business at 0000 Xxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000 ("WTI"); and ECONOLITE CONTROL PRODUCTS,
INC., a California corporation with it principal place of business at 0000 Xxxx
Xx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 ("Econolite").
WHEREAS, ISS and WTI entered into that certain Distribution Agreement
dated April 20, 2001 (the "Distribution Agreement") and, among other things,
development of an integrated camera/image processor automated video processing
unit (the "SOLOPRO"), and the development of an AIS image sensor ("AIS") as more
specifically set forth therein, the terms of which included, among other things,
that ISS paid certain non-recurring engineering charges;
WHEREAS, the parties desire that WTI manufacture the SOLOPRO and AIS
for sale exclusively to ISS and Econolite, on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
1. DEFINITIONS. For purposes of the Agreement, the following terms shall have
the following meanings and shall include the plural as well as the singular. All
capitalized terms used and not defined herein shall have the same meaning as in
the Distribution Agreement.
"WTI Intellectual Property" means all proprietary information of WTI
including, without limitation, (a) all of WTI's intellectual property rights
pursuant to the Distribution Agreement; (b) matters of a technical nature such
as trade secret processes or devices, know-how, techniques, software, data,
drawings, diagrams, programs, plans, formulas, inventions (whether or not
patentable), bills of material, specifications and characteristics of products
planned or being developed, and research subjects, methods and results; (c)
matters of a business nature such as information about costs, margins, pricing
policies, markets, sales, suppliers, customers, product plans and marketing
plans or strategies; and (d) other "information of a similar nature that is not
generally disclosed by WTI to the public.
"Econolite Intellectual Property" means all proprietary information of
Econolite including, without limitation, (a) matters of a technical nature such
as trade secret processes or devices, know-how, techniques, software, data,
drawing, diagrams, programs, plans, formulas, inventions (whether or not
patentable), bills of material, specifications and characteristics of products
planned or being developed, and research subjects, methods and results; (b)
matters of a business nature such as information about costs, margins, pricing
policies, markets, sales, suppliers, customers, product plans and marketing
plans or strategies; and (c) other information of a similar nature that is not
generally disclosed by Econolite to the public.
"Econolite Territory" means North America and the Caribbean.
"ISS Intellectual Property" means all proprietary information of ISS
including, with limitation, (a) all of ISS's intellectual property rights
pursuant to the Distribution Agreement; (b) matters of a technical nature such
as trade secret processes or devices, know-how, techniques, software, data,
drawings, diagrams, programs, pans, formulas, inventions (whether or not
patentable), bills of material, specifications and characteristics of products
planned or being developed, and research subjects, methods and results; (c)
matters of a business nature such as information about costs, margins, pricing
policies, markets, sales, suppliers, customers, product plans and marketing
plans or strategies; and (d) other information of a similar nature that is not
generally disclosed by ISS to the public.
"ISS Territory" means all countries and jurisdictions in the world
excluding North America and the Caribbean.
"Preproduction Documentation" means preproduction prints and
schematics/circuit layout for the enclosure and cabling, associated electronics,
bills of material, specifications and other information, in written or other
tangible form, relevant to the manufacture of the SOLOPRO and the AIS, developed
pursuant to the Statement of Work and approved by ISS.
"Production Documentation" means final production prints and
schematics/circuit layout for the enclosure and cabling, associated electronics,
bills of material, specifications and other information, in written or other
tangible form, relevant to the manufacture of the SOLOPRO and AIS, developed
pursuant to the Statement of Work and approved by ISS.
"Specifications" means the technical design, performance and functional
specifications for the SOLOPRO and AIS developed pursuant to the Statement of
Work and approved by ISS.
2. LICENSE GRANT AND PRODUCTION.
(a) Subject to the terms and conditions set forth herein, in the
Distribution Agreement, ISS and Econolite each hereby grant to WTI a
non-exclusive, non-transferable, non-assignable (whether by operation of law or
otherwise) royalty-free right and license to use such of the ISS Intellectual
Property and Econolite Intellectual Property as may be necessary to make,
design, develop, assemble, manufacture and repair the SOLOPRO and the AIS solely
for sale to ISS and Econolite in the manner provided herein. WTI shall acquire
no right, title or interest in or to the ISS Intellectual Property or the
Econolite Intellectual Property other than the foregoing limited license, nor
shall WTI have the right or authority to sublicense all or any portion of the
ISS Intellectual Property or Econolite Intellectual Property.
(b) WTI agrees to manufacture and sell exclusively to ISS and
Econolite, so many units of the SOLOPRO and the AIS as ISS and Econolite may
order from time to time. ISS and Econolite each agree to purchase from WTI all
of their respective requirements for the SOLOPRO and the AIS for sale to end
users in the ISS and Econolite Territories until such time as ISS and or
Econolite shall have purchased an aggregate total of 10,000 units of SOLOPRO and
AIS. Econolite and ISS agree to continue to purchase all of its requirements for
the SOLOPRO and AIS thereafter, subject to Econolite's option set for in Section
5 and ISS's right of termination pursuant to Section 8 herein. Notwithstanding
the foregoing, nothing in the
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Agreement shall be deemed to require either ISS or Econolite to purchase a
minimum number of units from WTI.
(c) WTI agrees that the SOLOPRO and AIS shall be manufactured in strict
conformance with the Specifications and the Production Documentation. WTI
further agrees to implement such procedures as may be agreed upon by WTI, ISS
and Econolite to achieve a production quality goal of zero defects. WTI further
agrees that it shall not make any changes to the SOLOPRO or AIS which affect
compliance with the Specifications and the Production Documentation or the form,
fit, function or performance of the SOLOPRO or AIS without ISS's and Econolite's
prior written approval. Notwithstanding the foregoing, WTI acknowledges and
agrees that, during the term of this Agreement, it shall be responsible for
"continuation engineering" for the SOLOPRO and the AIS. For purposes of the
Agreement, "continuation engineering" shall mean any re-design necessitated by
field errors, cost reduction, quality improvement and replacement of obsolete
parts. Any request by ISS for WTI to undertake any specific continuation
engineering shall be governed by a Change Order and Statement of Work issued to
WTI.
(d) Econolite and ISS agree to provide WTI with calendar year and
quarterly Sales Forecasts of target quantities of SOLOPRO and AIS product as
long as this Production Agreement is in effect. Econolite agrees to supply to
WTI in a timely manner, a sufficient quantity of CPU Circuit Boards as required
to satisfy SOLOPRO production requirements. Promptly upon WTI's acceptance of
Purchase Orders from Econolite and ISS, which include product quantities, and
requested delivery dates, WTI shall enter into purchasing relationships with
integrated circuit and component parts distributors to assure a ready supply of
long lead time items. WTI further agrees to stock sufficient inventory of parts
to assure a lead-time of not more than forty-five (45) days on orders for the
SOLOPRO and AIS.
(e) In the event WTI decides to discontinue manufacture of the SOLOPRO
and AIS, WTI agrees to provide ISS and Econolite with notice of such intent at
least six (6) months prior to the anticipated termination date. WTI further
agrees to provide ISS and Econolite with such assistance as may be reasonably
necessary to establish another manufacturer for the SOLOPRO and AIS; provided,
however, that WTI shall be reasonably compensated for its time and effort in
connection therewith.
3. TERMS OF SALE.
(a) ISS and Econolite shall each place orders for the SOLOPRO and AIS,
in writing, by mail, E-Mail, telex or facsimile, which orders shall set forth,
at a minimum, identification of the SOLOPRO and AIS, quantity and unit prices,
shipping instructions, shipping address and requested delivery dates. WTI will
notify ISS and Econolite of its acceptance of all orders, in writing, within ten
(10) days after receipt thereof. Any orders not accepted or rejected within such
ten (10) day period shall be deemed accepted.
(b) (i) ISS, Econolite and WTI acknowledge and agree that
the target purchase price to ISS and Econolite for
the SOLOPRO is $740 per unit, which includes
installation by WTI of a CPU Board furnished by
Econolite, loading software and testing the product.
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(ii) ISS, Econolite and WTI acknowledge and agree that the
target purchase price to ISS and Econolite for the
AIS is $665 per unit.
(iii) At the end of each calendar quarter while this
Agreement is in effect, WTI will advise ISS and
Econolite of the purchase price per unit of SOLOPRO
and AIS for the next succeeding quarter.
(iv) At any time after the expiration of six (6) months
from the commencement of this Agreement, WTI may
adjust the selling prices of SOLOPRO and/or AIS by
providing written notice of such proposed price
change to Econolite and ISS at least 45 days in
advance of such proposed price change. The adjustment
to prices shall not exceed the lesser of the
percentage change in the Consumers Price Index -
Urban Markets for the preceding twelve (12) months
period, or five percent (5%). Such price increase
shall not apply to orders accepted by WTI prior to
the effective date of the proposed price increase;
provided Econolite and ISS accept delivery of such
orders in process with WTI not more than 30 days
after the effective date of price increase. In the
event WTI must accept material price increases from
vendors contractually specified by ISS and/or
Econolite, WTI may increase prices in excess of the
five percent (5%) limitation expressed herein;
provided that WTI shall provide documentation of such
increase directly to ISS and Econolite substantiating
such material cost increases. WTI shall, upon request
of either ISS or Econolite, provide material cost,
labor and overhead data to substantiate any price
increases.
(c) All units of the SOLOPRO and AIS will be shipped F.O.B. from WTI's
point of shipment by the common carrier specified by ISS or Econolite, as the
case may be. WTI will "drop ship" such units as ISS or Econolite, as the case
may be, may request. Title to the units and risk of loss shall pass to ISS or
Econolite, as the case may be, upon WTI's delivery thereof to such carrier
regardless of any provisions for payment of freight or insurance or forms of
shipping documents. All prices are exclusive of freight, insurance, custom
duties, import or export fees, sales, use, excise of other taxes, all of which
shall be ISS's or Econolite's, as the case may be, responsibility.
(d) ISS and Econolite, as the case may be, shall conduct any incoming
acceptance tests within sixty (60) days after receipt of a shipment. In the
event of any shortage or nonconforming units, excepting for defects attributable
to the SOLOPRO CPU Board and associated Software, ISS or Econolite, as the case
may be, shall promptly report the same to WTI, and WTI shall immediately deliver
additional or substitute units to ISS or Econolite, as the case may be, and
shall be responsible for all freight, insurance and other charges in connection
therewith. If it is determined that the SOLOPRO CPU Board is defective,
Econolite shall be responsible for all freight, insurance and other charges in
connection therewith. If it is determined that the SOLOPRO Software is at fault
ISS shall be responsible for all freight, insurance and other charges in
connection therewith.
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(e) WTI shall invoice ISS or Econolite, as the case may be, for the
SOLOPRO and the AIS purchased hereunder upon shipment, and payment shall be made
net forty-five (45) days from the date of such invoice.
(f) In the event of any conflict between the terms and conditions of
this Agreement and any purchase order, acknowledgement, invoice or other
document passing between the parties, the terms and conditions of the Agreement
shall control for all purposes.
4. LIMITED WARRANTIES.
(a) WTI warrants to ISS and Econolite that, excepting for defects
attributable to the SOLOPRO CPU Board supplied by Econolite, and associated
Software supplied by ISS, the SOLOPRO and AIS units sold hereunder will be free
from defects in material and workmanship, and will conform to the Specifications
for a period of two (2) years from the date of shipment. In the event any
SOLOPRO or AIS fails to meet the foregoing warranty and is returned to WTI with
all transportation charges prepaid, WTI will, at its option, repair or replace
such defective SOLOPRO or AIS, or part thereof, within thirty (30) days of
receipt. A return authorization number must be obtained from WTI prior to
returning any SOLO PRO or AIS for warranty repair. Any SOLOPRO or AIS repaired
or replaced hereunder shall be warranted for the remainder of the original
warranty period or sixty (60) days, whichever is longer.
(b) WTI makes no other warranty with respect to the SOLOPRO or AIS, and
WTI shall not be liable or responsible for losses of any kind resulting from the
use or sale thereof by ISS or Econolite, including any damages caused ISS,
Econolite or end-users by any attendant or consequent deficiency, defect, error
or malfunction. WTI, ISS AND ECONOLITE EXPRESSLY AGREE THAT THE FOREGOING
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR
PURPOSE OR MERCHANTABILITY AND NO OTHER PERSON HAS THE AUTHORITY TO ASSUME FOR
WTI ANY OTHER LIABILITIES IN CONNECTION WITH THE SALE OF THE SOLOPRO OR AIS.
(c) WTI, ISS AND ECONOLITE EXPRESSLY AGREE THAT THE FOREGOING REMEDIES
SHALL BE THE EXCLUSIVE REMEDIES TO ISS AND ECONOLITE AGAINST WTI FOR ANY DEFECTS
IN SOLOPROS OR AIS SOLD HEREUNDER. IN NO EVENT SHALL WTI BE LIABLE TO ISS OR
ECONOLITE : FOR ANY LOST PROFITS OR OTHER SPECIAL, CONSEQUENTIAL, INDIRECT,
PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY,
ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE DISTRIBUTION OF THE SOLOPRO OR
AIS BY ISS OR ECONOLITE.
(d) WTI shall have no obligation to repair, replace or correct
defective SOLOPRO or AIS under any warranty or otherwise if the defect or error
resulted from improper or inadequate maintenance; unauthorized modification,
alteration, disassembly, or misuse; intentional or accidental damage; use with
software, hardware or interfaces not supplied or approved by WTI; operation
outside the environmental specification of the SOLOPRO or AIS; improper site
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preparation and maintenance; or handling, installation or operation which is not
in conformance with WTI's handling, installation and operating instructions.
(e) Upon expiration of the foregoing warranty, WTI agrees that ISS and
Econolite may each offer a repair service to end users of the SOLOPRO or AIS
similar to the repair service presently offered by them with respect to WTI
products.
5. ECONOLITE'S OPTION TO MANUFACTURE.
(a) Econolite shall have an option to manufacture the SOLOPRO and AIS
for sale in the Econolite Territory commencing upon the purchase of 10,000 units
by ISS and/or Econolite, in the aggregate, and continuing thereafter for so long
as this Agreement shall be in full force and effect, which option shall be
exercisable on the terms and conditions set forth in subsection (c) below.
(b) WTI shall provide ISS and Econolite with written notice at least
eight (8) months prior to the anticipated date upon which 10,000 units of the
SOLOPRO and AIS will have been sold to ISS and/or Econolite, in the aggregate,
hereunder.
(c) Econolite's option to manufacture is subject to the following
conditions:
(i) Econolite shall exercise its option by providing ISS
and WTI with one (1) year's prior written notice;
(ii) Econolite shall not be in breach of any provision in
the Econolite Agreement or this Agreement; and
(iii) Econolite shall be able to meet the quality, price
and other requirement (including without limitation,
ISO-9001 guidelines or any successor guidelines) then
applicable to the manufacture and sale of the SOLOPRO
or AIS.
(d) In the event Econolite exercises its option to manufacture, ISS
shall terminate this Agreement pursuant to Section 8(c) herein and shall take
such steps as are necessary to grant to Econolite a non-exclusive,
non-transferable, non-assignable royalty-free right and sublicense, without the
right to sublicense, to use such WTI Intellectual Property and ISS Intellectual
Property as may be necessary to make, have made, use, sell or distribute the
SOLOPRO and AIS.
(e) Econolite acknowledges and agrees that it shall acquire no right,
title or interest in or to the SOLOPRO, AIS, ISS Intellectual Property or WTI
Intellectual Property other than the foregoing limited rights.
6. ACCOUNTING AND REPORTS.
(a) WTI will deliver to ISS and Econolite, within thirty (30) days
after the end of each month while this Agreement is in effect, a written report
setting forth shipping destinations and sales of units of the SOLOPRO and AIS to
ISS and Econolite during such month.
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(b) WTI shall keep complete, true, and accurate books of accounts and
records for the purpose of showing the derivation of all reports due hereunder.
Such books and records shall be kept at WTI's principal place of business for at
least three (3) years after the end of the calendar year to which they pertain,
and shall be open at all reasonable times for inspection by a representative of
the other parties hereto for verification of reports or compliance with other
aspects of this Agreement.
7. CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS.
(a) Nothing in this Agreement shall be deemed to modify or alter the
intellectual property rights set for in the Distribution Agreement.
(b) The parties acknowledge that each party may receive or have access
to information and material of the other party that is confidential, proprietary
or trade secret information. As used herein, "Confidential Information"
includes, but is not limited to, ISS Intellectual Property, WTI Intellectual
Property and Econolite Intellectual Property and any other confidential,
proprietary or trade secret information, technical and business information of
WTI, ISS or Econolite, excluding any such information which (i) has been
published or is otherwise readily available to the public other than by a breach
of the Agreement; (ii) has been rightfully received from a third party without
breach of confidentiality obligations; or (iii) has been independently developed
by the receiving party by personnel having no access to the Confidential
Information.
(c) Each party agrees during the term of the Agreement and thereafter
to take all steps reasonably necessary to hold in trust and confidence the
Confidential Information of the other parties, and not to disclose such
Confidential Information to third parties or to use such Confidential
Information in any way other than as permitted under this Agreement, the
Development Agreement or the Econolite Agreement, without the prior written
consent of the other party. Each party agrees to limit disclosure of the
Confidential Information of the other party to employees or independent
contractors with a need to know such information and to maintain at all times
appropriate agreements with any and all employees to protect the Confidential
information of the other party.
(d) In consideration of the opportunity to perform under this
Agreement, the adequacy and sufficiency of which is hereby acknowledged, WTI
agrees that for a period commencing on the date hereof and continuing for a
period of one (1) year after termination of this Agreement, WTI shall not engage
in any other projects, either for WTI, for Econolite or for a third party, which
relate to the design or production of a CCD camera and image processor housed
within a single enclosure for the field of use of automated video processing for
traffic measurement, including, by way of example and not limitation, vehicles,
trucks, pedestrians, airplanes, boats and bicycles, and that WTI shall treat all
information relating to use of the WTI Components in this field of use as ISS
Intellectual Property. The forgoing prohibition shall not apply to CCD and or
Thermal Imaging (IR) video surveillance cameras manufactured by WTI.
(e) WTI acknowledges and agrees that it shall have no rights at any
time to sell the SOLOPRO or AIS to any party other than ISS and Econolite as
provided herein.
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8. TERM AND TERMINATION.
(a) The term of this Agreement shall commence on the date hereof and
shall continue until terminated as provided herein.
(b) If any party defaults in the performance of a material obligation
hereunder and such breach is not cured within forty-five (45) days after receipt
of written notice specifying the nature of the default, a copy of which notice
shall also be provided to the other party hereto, the complaining party shall
have the right at its option to suspend performance of any action called for
hereunder until such breach is cured or the defaulting party commences and
diligently proceeds to effect such cure; or to cancel this Agreement by giving
written notice of cancellation to the defaulting party, with a copy to the other
party, effective immediately at any time subsequent to the forty-five (45) day
cure period (provided no cure has been effected).
(c) ISS may terminate this Agreement, with or without cause, upon six
(6) months' prior written notice. WTI may terminate this Agreement, with or
without cause, upon twelve (12) months' prior written notice. In the event ISS
terminates this Agreement with cause, WTI shall promptly deliver to ISS all
tooling specific to production of the SOLOPRO and AIS.
(d) This Agreement shall terminate automatically without notice (i) if
either ISS or WTI files a petition in bankruptcy or is adjudicated a bankrupt;
(ii) if a petition in bankruptcy is filed against either ISS or WTI and such
petition is not discharged within ninety (90) days of such filing; (iii) if ISS
or WTI becomes insolvent, or makes an assignment for the benefit of creditors or
an arrangement pursuant to any bankruptcy law; (iv) if ISS or WTI discontinues
its business; or (v) if a receiver is appointed for ISS or WTI or its business.
(e) In the event ISS terminates this Agreement without cause as
provided herein, ISS shall purchase all of WTI's inventory related solely to the
manufacture or sale of the SOLOPRO and AIS, including raw materials, unique
parts, work in process and finished goods up to a maximum purchase price of
$100,000. The purchase price of such inventory shall be at WTI's cost plus 10%.
In addition, ISS shall assume and satisfy all open Purchase Orders issued by WTI
to Vendors supplying scheduled inventory related solely to the manufacture of
the SOLOPRO and AIS. WTI will provide ISS with such information and
documentation as ISS may reasonably request to document and support WTI's cost
of such inventory.
9. GENERAL.
(a) Notices. Any notice, request or demand required or desired
hereunder shall be in writing and shall be deemed sufficient and completed if
delivered personally, by first class mail, postage prepaid, or by overnight
courier, with all freight charges prepaid, addressed to the address of each
party first set forth above or such other address as may be given in a
subsequent notice.
(b) Representation. Each party warrants and represents to the other
parties that: (i) it has the authority to enter into and perform this Agreement;
and (ii) the execution, delivery and performance of this Agreement will not
conflict with the terms and conditions of any other agreement to which it is or
becomes a party or by which it is or becomes bound.
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(c) Indemnity. Each party shall save and hold harmless and indemnify
the other party from and against any and all liability, claims, losses, costs
and damages of whatever kind and nature, including reasonable attorneys' fees
and costs of litigation, by any third party resulting directly or indirectly
from any breach of this Agreement or warranties, representations and agreements
contained herein, and from any facts, omissions, misrepresentations, warranties,
covenants or obligations hereunder by such party. The foregoing obligations of
indemnification are conditioned upon the indemnified party (i) giving prompt
notice to the indemnifying party of any such claim or action; (ii) allowing the
indemnifying party to control the defense, including the right to settle the
action (so long as the settlement is without cost to the indemnified party); and
(iii) providing full assistance in the defense so long as the indemnifying party
pays the indemnified party's reasonable out-of-pocket expenses incurred in
connection with providing such assistance.
(d) Insurance. WTI shall maintain in force at all times during the term
of this Agreement and for at least three (3) years after expiration or
termination of the Agreement, comprehensive general liability, property damage
and business interruption insurance coverage in an amount not less than One
Million Dollars ($1,000,000) with ISS and Econolite each named as an additional
insured, and will, upon request, furnish certificates of insurance to ISS and
Econolite specifying that ISS and Econolite will receive no less than thirty
(30) days' notice of cancellation, nonrenewal or material change to such
insurance. All responsibility for payment of sums under any deductible, corridor
or self-insured retention provisions of the policy or policies shall remain with
WTI, and acceptance of the insurance by ISS and Econolite shall not in any way
relieve or decrease the liability of WTI hereunder. It is expressly understood
and agreed that neither ISS nor Econolite in any way represent that the above
specified limits of liability or policy forms are sufficient or adequate to
protect the parties' interests or liabilities.
(e) Damages. None of the parties will, in any event, be liable for
special, incidental or consequential damages of any nature or kind whatsoever,
or for any indirect damages such as, but not limited to, exemplary or punitive
damages, even if such party has been advised of the possibility of such damages
and notwithstanding the form (e.g. contract negligence, or otherwise) in which
any legal or equitable action may be brought against such party or any of its
officers, directors, employees or subcontractors.
(f) Dispute Resolution. Should any disagreement arise between WTI and
ISS relating to the other party's performance hereunder or any other matter
relating to this Agreement, WTI and Econolite agree to mediation and, if
necessary, arbitration in the state of California. Notwithstanding the
foregoing, either party shall be entitled to petition any court of competent
jurisdiction within the State of California for injunctive relief with respect
to an alleged breach of obligations of confidentiality or with respect to
intellectual property rights.
(g) Import/Export Regulations. The parties agree to comply with all
import and export requirements imposed on the SOLOPRO and AIS by any country or
organization in whose jurisdiction either party operates or does business. ISS
shall be responsible for all export permits, import certificates, insurance,
duty, customs clearance charges and/or licenses and related costs for units
shipped into the ISS Territory. Econolite shall be responsible for all export
permits, import certificates, insurance, duty, customs clearance charges and/or
licenses and related costs for units shipped into the Econolite Territory.
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(h) Relationship. The parties are independent contractors and nothing
in this Agreement shall be deemed to create the relationship of principal and
agent or master and servant or a partnership or a joint venture between parties.
Neither party shall have the power to bind the other party.
(i) Governing Law; Interpretation. This Agreement shall be construed,
interpreted and enforced under the laws of the State of California, excluding
its provisions regarding conflicts of law. The section and subsection headings
used herein are for reference and convenience only, and shall not enter into the
interpretation hereof
(j) No Waiver; Severability. No failure by any party to take any action
or assert any right hereunder shall be deemed to be a waiver of such right in
the event of the continuation or repetition of the circumstances giving rise to
such right. If any clause is declared illegal or invalid, the remainder of this
Agreement shall remain enforceable, its clauses being severable.
(k) Force Majeure. None of the parties shall be liable for delays in
performance that are caused by acts of God, acts of governmental or military
authority, fires, floods, epidemics, strikes, riot and war or any other cause
over which such party has no control. Under such conditions, the performance
obligations shall be extended for a period not to exceed the time of the delay,
provided that the party experiencing the delay immediately notifies the other
party of the delay and anticipated duration and uses its best efforts to
minimize the impact of the delay on its performance obligations. Notwithstanding
the foregoing, the failure of any of the parties to pay the other party an
amount then due shall not be deemed excused by reason of force majeure.
(l) No Assignment or Deletion. None of the parties shall directly or
indirectly sell, transfer, assign, convey, pledge, encumber, delegate or
otherwise dispose of this Agreement without the prior written consent of the
other parties. Notwithstanding the foregoing, either ISS or WTI may, without the
prior consent of the other party, assign or transfer this Agreement as part of a
corporate reorganization, consolidation, merger or sale of all or substantially
all of its assets, provided such entity expressly agrees in writing to all of
such party's obligations hereunder.
(m) Entire Agreement. This Agreement, the Distribution Agreement, and
the schedules and exhibits attached hereto or thereto, constitute the entire
agreement concerning the subject matter covered herein and supersede all prior
oral or written agreements, understandings and promises relating thereto. This
Agreement may not be modified or amended except by an instrument in writing
declared to be an amendment hereto and executed by both parties. This Agreement
may be executed in several counterparts, all of which taken together shall
constitute one single agreement between the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement in the
manner appropriate to each as of the day and year first above written.
IMAGE SENSING SYSTEMS, INC. WIRELESS TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
------------------------------- ---------------------------------
Xxxxxxx Xxxxx Xxxxxx Xxxxxxx
Its: President Its President
ECONOLITE CONTROL PRODUCTS, INC.
By: /s/ Xxxxxxx Xxxxx
-------------------------------
Xxxxxxx Xxxxx
Its: Chairman
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