EXHIBIT 10.5
Payment Agreement by and between
Fastcom, Ltd. and Nova Engineering
dated July 25, 1997
PAYMENT AGREEMENT
THIS AGREEMENT made as of the 25th day of July, 1997 by and between FASTCOM,
LTD., a Florida limited partnership ("FASTCOM") and Nova Engineering ("Nova"),
and effective the 1st day of August, 1997 or as otherwise mutually agreed upon
by the parties hereto.
1. GRANT AND SCOPE OF ENGAGEMENT AND PAYMENT. FASTCOM engages Nova, subject to
the tenrms and conditions of this Agreement, to continue to perform engineering
services for the DP1OOO radio (the Radio) and any modifications thereof,
including but not limited to the DP1000 model for additional uses. Payment for
the engineering services shall be on a time and materials basis.
2. ADDITIONAL PAYMENTS. In addition to the payment set forth in paragraph I
above, FASTCOM agrees to pay Nova the sum of $* per Radio for each Radio
placed in service by FASTCOM after the effective date of this Agreement. This
payment will be paid quarterly upon the receipt by FASTCOM of proceeds of the
placement in service of the Radios which are the subject of this Paragraph 2
during such quarter, no later than ninety (90) days following the end of each
quarter.
3. TERM. This Agreement shall terminate three (3) years from the effective date
hereof as written above.
4. INTELLECTUAL PROPERTY.
a. Nova agrees that services performed hereunder constitute work for hire
and that any invention, improvement or discovery conceived or made by Nova,
either alone or in cooperation with others, during the term of this
Agreement and which relates in an way to the services provided by Nova, is
hereby assigned to and shall be the exclusive property of FASTCOM. Nova,
shall fully disclose to FASTCOM all such inventions, improvements, or
discoveries, whether or not subject to patent, copyright, or other
protection. If requested by FASTCOM, Nova will, at the expense of FASTCOM,
sign all papers (including documents confirming the assignment herein) and
do all other acts necessary to assist FASTCOM to obtain patents, copyrights
or other property rights in such inventions in any and all countries and to
assign such patents, copyrights or other property fights to FASTCOM.
b. Nova agrees that it will not provide FASTCOM with any designs, plans,
models, samples, software, integrated circuits, reports, or other writing
or product which Nova either knows or has reason to believe are covered by
the valid patent, copyright, or other form of intellectual property right
of a third party-
c. In performing hereunder, Nova may utilize or incorporate into the
subject designs some of its own designs, know-how, inventions, or
technologies (herein collectively called "Background Technologies"). Nova
hereby grants to FASTCOM a non-exclusive, perpetual, fully-paid and
royaltyfree license to and under any patents, trade secret fights, or other
intellectual property rights of Nova in such Background Technologies, so
that Fastcom may make, have developed hereunder, ftee of any claims of
inffingement by Nova. It is understood, however, that title to any such
Back-ground Technologies shall remain with Nova.
* Confidential information has been omitted pursuant to a request for confiden-
tial treatment and has been filed separately with the Commission
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5. BINDING EFFECT. The rights and obligations of the parties hereunder shall
inure to the benefit of, and be binding and enforceable upon the respective
successors, assigns and transferees of either party.
6. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, regarding the failure or refiisal to perform
the whole or any part of this Agreement shall be settled by arbitration in
Pinellas County, Florida, in accordance with the rules of the American
Arbitration Association, and the judgment upon the award rendered may be entered
in any court having jurisdiction hereof Any decision made by an arbitrator or by
the arbitrators under this provision shall be enforceable as a final and binding
decision as if it were a final decision or decree by a court of competent
jurisdiction.
7. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The warranties, representations,
covenants and agreements set forth herein shall survive the termination of this
Agreement or any part thereof.
8. ENTIRE AGREEMENT. This Agreement contains the entire understanding between
the parties hereto with respect to the transactions contemplated hereby, and
this Agreement supersedes in all respects all written or oral understandings and
agreements heretofore existing between the parties hereto.
9. AMENDMENT AND WAIVER. This Agreement may not be modified or amended except by
an instrument in writing duly executed by the parties hereto. No waiver of
compliance with any provision or condition hereof and no consent provided herein
shall be effective unless evidenced by an instrument in writing duly executed by
the party hereto sought to be charged with such waiver or consent.
10. NOTICES. Notices and requests required or permitted hereunder shall be
deemed to be delivered hereunder if mailed with postage prepaid or delivered in
writing.
11. COUNTERPARTS. This Agreement may be executed in one or more counterparts,
and all such counterparts shall counterparts shall constitute one and the same
instrument.
12. CAPTIONS. Captions used herein are for the convenience only and are not a
part of this Agreement and shall not be used in construing it.
13. EXECUTION OF DOCUMENTS. At any time and from time to time, the parties
hereto shall execute such documents as are necessary to effect this Agreement.
14. EXPENSES. Each of the parties to this Agreement shall pay its own expenses
in connection with this Agreement and the transactions contemplated hereby,
including the fees and expenses of its counsel, certified public accountants and
other experts.
15. ASSIGNABILITY. This Agreement shall not be assignable by Nova without the
prior written consent of FASTCOM.
16. VENUE; PROCESS. The parties to this Agreement agree that jurisdiction and
venue shall properly lie in the Sixth Judicial Circuit of the State of Florida,
in and for Pinellas County, Florida, or in the United States District Court for
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the Middle District of Florida (Tampa Division), with respect to any legal
proceedings arising from this Agreement. The parties further agree that the
mailings of any process shall constitute valid and lawful process against them.
17. GOVERNING LAW. This Agreement has been negotiated and prepared and shall be
performed in the State of Florida, and the validity, construction and
enforcement of, and the remedies under, this Agreement shall be governed in
accordance with the laws of the State of Florida (except that if any choice of
law provision under Florida law would result in the application to the law of a
state or jurisdiction other than the State of Florida, such provision shall not
apply).
18. SEVERABILITY OF PROVISIONS. The invalidity or unenforceability of any
particular provision hereof shall not affect the remaining provisions of this
Agreement, and this Agreement shall be construed in all respects as if such
invalid or unenforceable provisions were omitted.
19. DUE AUTHORIZATION. This Agreement has been duly and validly authorized by
all action necessary for such due and valid authorization, is binding upon the
parties hereto and is enforceable in accordance with its terms.
20. RELIANCE, All representations and warranties contained herein, or any
certificate or other instrument delivered in connection herewith, shall be
deemed to have been relied upon by the parties hereto, notwithstanding any
independent investigation made by or on behalf of such parties.
21. This clause has been deleted.
22. ATTORNEY'S FEES. The parties hereby agree that in the event any of the terms
and conditions contained in this Agreement must be enforced by reason of any
past, existing or future delinquency of payment, of failure of observance or of
performance by any of the parties hereto, in each such instance, the
nonprevailing party shall be liable for reasonable collection and/or legal fees,
trial and appellate levels, any expenses and legal fees incurred, including time
spent in supervision of paralegal work and paralegal time, and any other
expenses and costs incurred in connection with the enforcement of any available
remedy.
23. PROVISIONS. The terms and provisions of this Agreement are contractual and
not merely recital- This Agreement is voluntarily entered into and is not based,
in whole or in part, upon any representation or statement of any kind not
contained herein by any party hereto or their respective attorneys or
representatives, oral or otherwise, as to their merit, legal validity, or value
of any claim, demand, action, or cause of action of any of the parties hereto
or as to any other matter whatsoever. The undersigned parties hereto acknowledge
and agree (1) that they are and have been represented by legal counsel in
connection with the negotiation, drafting, and preparation of this Agreement;
(2) that the terms and provisions of this Agreement and the legal effect thereof
have been carefully explained to them by their own legal counsel; (3) that they
have entered into this Agreement freely and voluntarily without coercion or
undue influence; (4) that they believe this Agreement is beneficial to
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themselves; and (5) that they are duly authorized and competent to execute this
Agreement. The undersigned parties hereto acknowledge and agree that the wording
and language of this Agreement are the product of joint cooperation,
collaboration, and negotiation among the parties to this Agreement and their
respective legal counsel, and are not the product of any particular party
bearing the sole responsibility for draftsmanship.
IN WITNESS WHEREOF, the undersigned have hereunto caused this Agreement to be
executed the day and year first above written.
FASTCOM, LTD.,
a Florida limited partnership
By: Fastcom Management, Inc.,
a Florida corporation,
General Partner
/s/Xxxx X. Xxxxxxx
By: _________________________
Xxxx X. Xxxxxxx, Chairman
Nova Engineering
/s/Xxxxx Xxxx
By: __________________________
Xxxxx Xxxx, President
