CYBERBUGTM SALES AGREEMENT
Exhibit
10.1
CYBERBUGTM
SALES
AGREEMENT
This
CyberBugTM
Sales
Agreement (the “Agreement”) is entered into as of the 4th
day
of
October, 2006, by and between National Security Associates, Inc XX Xxx 0000
Xxxxxx Xxxxxx, XX 00000, a Georgia corporation (“NSA”) and Cyber Defense
Systems, Inc., a Florida corporation (“Cyber”).
In
consideration of the mutual covenants contained herein, the parties agree as
follows:
1.
Recitals.
(a)
Cyber
is engaged in the business of manufacturing and marketing to
agencies
of
the
United States government and to private customers an unmanned aerial vehicle
(UAV) that it sells under the trademark CyberBugTM.
(b)
NSA
is engaged in the business of Marketing, Selling and Training to DOD and Law
Enforcement agencies and desires to acquire the rights to market, sell and
train
clients on the CyberBugTM
Systems
and accessories in certain geographic areas hereafter defined.
(c)
Cyber
desires to sell CyberBugTM
Systems
to NSA for resell purposes and to
grant
such non-exclusive
sales rights except as defined below
to NSA
pursuant to the terms and conditions of this Agreement.
2.
Receive
and Sale
of CyberBugTM
Field
System Demonstration Unit.
(a)
Cyber
hereby agrees to provide
NSA one (1) CyberBugTM
Field
Systems for demonstration
purposes (“Demonstration Units”) having the specifications described on Exhibit
A attached hereto. The Demonstration Unit are for demonstration purposes only
and may not be resold by NSA until they have been held and used for a minimum
of
6 months at which time it may be sold with approval of Cyber. This
unit
will remain the property of Cyber, until sold. NSA will sell the unit every
6
-12 months,
at an
agreed upon discount as required to maintain a “like new” unit at all times with
all upgrades, for on hand demonstrations and training. NSA
will
insure and replace at cost any CyberBug lost or destroyed during the
demonstration period.
(b)
Cyber
will at no charge train NSA operators at Cyber’s facility.
(c)
Cyber
shall have the Demonstration Unit ready for pickup at such address not
later
than October 30, 2006. Additional Units sold by Cyber to NSA hereunder shall
be
ready for pickup at Cyber’s factory in St. Petersburg, Florida not later than
thirty (30) days beginning October 30,
2006
following Cyber’s receipt of an order for additional Unit by NSA, delivered to
NSA by insured freight to 0000 Xxxxxxx Xxxx, Xxx 000, Xxxxxxxx, XX 0000.
(d)
Prior
to acceptance of any CyberBugTM
unit
by
NSA, Cyber shall inspect and test
each
unit, including performing any tests required to verify complete and proper
functionality.
3.
Future Sales of CyberBugTM
Production
Units.
(a)
Subject to Section 3(b), Cyber hereby grants NSA the exclusive right to
purchase,
market and resell CyberBugTM
Systems
(hereinafter referred to as “Production Units”) for end-users globally
collectively, the “Territory”. Exclusive right, as it applies here, is applied
to all end purchasers that are registered as customers of NSA.
(b)
NSA
is granted the exclusive right, as a reseller, to list the CyberBugTM
on
the
“GSA contract” except
for existing clients as registered by Cyber.
(c)
NSA’s
sales and marketing rights in each identified territory within the Territory
shall commence thirty (30) days from the date of Cyber’s providing of the
CyberBugTM
Field
System for use in any identified territory; thereafter, the continuation of
NSA’s sales and marketing rights shall be contingent upon NSA ordering from
Cyber a minimum of two (2) Production Units during the initial 90 days, and
an
average of two Production Units per month for the next 12
months,
to be followed by an average of 3
Production
Models
per
month thereafter. This sales goal is subject to annual review and approval
by
both parties, in Jan of each year, starting in 2010. In the event NSA fails
to
order the minimum number of Production Units for resale in any identified
territory in a given 12-month period, Cyber shall be entitled to market and
sell
Production Units directly to customers in that identified territory or to grant
others the right to do so. Thereafter, without need for further action by the
parties, the “Territory” shall be automatically redefined to constitute the
remaining identified territory.
(d)
The
specifications for the Production Units are set forth on Exhibit B attached
hereto. Each new Production Unit sold by Cyber to NSA hereunder shall be ready
for pickup at Cyber’s facility in St. Petersburg, Florida not later than thirty
(30) days following Cyber’s receipt of an order for the Production Unit by
NSA.
(e)
The
purchase price for Production Units and parts sold by Cyber to NSA hereunder
shall be Cyber’s government price less _% price
for
each of the Basic System and accessories as set forth on Exhibit B. (Cyber
and
NSA will work towards a _% discount for NSA by lowering production
cost)
(f)
NSA
may provide a demonstration flight of a Demonstration Unit to any customer
in the Territory. In the event the customer purchases a Production Unit from
NSA, or is a registered client of NSA, Cyber will agree not to solicit sales
from such customer, and shall agree to place a similar covenant with respect
to
such customer in each sales agreement it may enter into with other resellers.
NSA will register all prospect sells with Mr. Xxxx Xxxxxx of Cyber.
(g)
During the time NSA retains the sales and marketing rights in the Territory,
NSA
agrees that it will not, within the Territory, purchase for resale from
competitors of Cyber any products in competition with the CyberBugTM.
4.
Product Markings. NSA
agrees to maintain on each product sold by Cyber to NSA and
resold by NSA to each customer the CyberBugTM
trademark
and a notification that the product was manufactured by Cyber Defense Systems,
Inc. NSA may place its own trademark and contact information on each such
product, provided that this marking does not obscure any Cyber trademark or
notification.
5.
Warranties.
Warranty
Policy
|
Cyber
warrants that the equipment is fit for the purposes described for
a period
of one year after the date of shipment when used in accordance with
the
directions for use. Unless the equipment is used in accordance with
such
instruction, this warranty is void and of no effect.
There
are no other express or implied warranties. Cyber sole obligation
and
purchaser's exclusive remedy for breach of any warranty shall be
limited
to repair or replacement of the product, at the option of Cyber.
Cyber
shall not be liable for proximate, incidental, or consequential
damages.
|
(a) Cyber
will provide NSA with documentation pertaining to the use of the products sold
hereunder and technical issues pertaining to training.
(b) CYBER
WILL PROVIDE NSA WITH SPECIFICATIONS AND/OR MANUFACTURER PRODUCT WARRANTY DATA
AND ASSISTANCE TO
NSA.
EXCEPT AS STATED HEREIN, IT IS AGREED THAT THE SALE OF ALL PRODUCT UNDER THIS
AGREEMENT IS “AS IS, WHERE IS.” SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF TITLE OR INFRINGEMENT, AND ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NSA
IS PURCHASING THE PRODUCTS WITH FULL ASSUMPTION OF THE RISKS ASSOCIATED WITH
THIS DISCLAIMER AND THE PURCHASE PRICE HAS BEEN NEGOTIATED TO REFLECT THIS
ASSUMPTION OF RISK.
8.
Termination. This
Agreement may be terminated by either party upon thirty (30) days
prior notice at any time following the date NSA no longer retains marketing
rights in the Territory. Any sales in progress upon termination will be honored
for ninety (90) days.
9.
Notices.
All
notices required or given under this Agreement shall be in writing and
shall
be
deemed given (i) when received, if personally delivered; (ii) the day after
it
is sent, if sent by a recognized expedited delivery service with next-day
delivery requested; or (iii) five days after it is sent, if mailed, postage
prepaid, via certified mail, return receipt requested. In each case, notice
shall be sent to the following, as applicable, or to such other address as
such
party shall have specified by notice in writing to the other party:
If
to
NSA: National Security Associates, Inc
XX
Xxx
0000
Xxxxxx
Xxxxxx, XX 00000
Attn:
Xxxx X. Oxford, President
If
to
Cyber: Cyber Defense Systems, Inc., and Techsphere
00000
Xxxxxxxxx Xxxx.
Xxxxx
000X
Xx.
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx X. Xxxxxx, Chief Marketing Officer and Board Member
10.
General.
(a)
This
Agreement constitutes the whole and entire agreement between the parties
pertaining
to the subject matter hereof, and supersedes all prior agreements or
understandings between the parties, both verbal and written, with respect to
such subject. This Agreement may not be modified except by an instrument in
writing signed by all parties.
(b)
The
validity, construction and enforcement of, and the remedies under, this
Agreement
shall be governed in accordance with the laws of Florida, except any choice
of
law provision of Florida law shall not apply if the law of a state or
jurisdiction other than Florida would apply thereby.
(c)
The
parties to this Agreement agree that jurisdiction and venue of any action
brought
to enforce, or to construe or determine the validity of, any term or provision
contained in this agreement shall properly lie only in any state or federal
district court located in St. Petersburg, Florida. Each of the parties waives
any defense of inconvenient forum to the maintenance of any action or proceeding
so brought and waives any bond, surety, or other security that might be required
of any other party with respect thereto. Any party may make service on the
other
party by sending or delivering a copy of the process to the party to be served
at the address and in the manner provided for the giving of notices in Section
9
above. Nothing in this Section 10(c), however, shall affect the right
of
any party to serve legal process in any other manner permitted by law or in
equity. Each party agrees that a final judgment in any action or proceeding
so
brought shall be conclusive and may be enforced by suit on the judgment or
in
any other manner provided by law or in equity.
(d)
This
Agreement shall inure to the benefit of and be binding upon the parties
hereto
and their respective personal representatives, successors and permitted assigns.
No party may assign its, his or her obligations hereunder without the prior
written consent of all other parties.
(e)
The
headings contained in this Agreement are for reference purposes only and
shall
not
affect the meaning or interpretation of this Agreement.
(f)
Each
party to this Agreement shall bear its, his or her own expenses incurred in
connection
with negotiation, preparation and execution of this Agreement and the
transactions contemplated herein.
(g)
This
Agreement may be executed in counterparts, each of which shall be deemed
an
original, but all of which shall constitute one and the same instrument. Any
signature delivered by facsimile transmission shall be deemed a valid and
binding signature for all purposes hereof.
(h)
If
any action is brought to enforce, or to construe or determine the validity
of,
any
term
or provision of this agreement, the prevailing party shall be entitled to
reasonable attorney's fees and costs of the action.
(i)
In
case any one or more of the provisions contained in this Agreement shall for
any
reason be held to be invalid, illegal. or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other
provisions hereof, and this Agreement shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained herein.
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rest
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
Cyber Defense Systems, Inc., and Techsphere | ||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Xxxxxxx X. Xxxxxx, Board Member and CMO |
||||
National Security Associates, Inc | ||||
By: | /s/ Xxxx X. Oxford | |||
Xxxx X. Oxford, President |
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