Exhibit 10.7
AMENDMENT ONE TO AGREEMENT FOR PURCHASE & SALE OF
REMOTE MONITORING PRODUCTS
This Amendment for Purchase & Sale of Remote Monitoring Products
(hereinafter this "Amendment") is made effective as of this 16th day of January
2004 ("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"),
each a "Party" and together the "Parties".
WHEREAS, the Parties entered into an agreement for Purchase & Sale of
Remote Monitoring Products on February 25th, 2003 (hereinafter the "Agreement");
WHEREAS, pursuant to Section 4.2 of the Agreement, the Parties met on
quarterly basis to have general discussions about the current market conditions,
product features, including competitive climate, and technical features and
improvements to new products;
WHEREAS, based on those discussions, and for Xxxxxx to maintain all
exclusive rights and licenses granted under the Agreement through June 2004, the
Parties have agreed to modify the Annual Forecast and the Quarterly Forecast
stated in Appendix D - Payment, Specifications, Delivery Schedule and Test Plan;
and
WHEREAS, all capitalized terms not otherwise defined herein shall have the
meanings assigned to them in the Agreement.
NOW THEREFORE in consideration of the premises and the mutual agreements
and covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Parties hereby
agree and covenant as follows:
1. Appendix D - Payments, Specifications, Delivery Schedule and Test Plan will
be modified as follows:
a) Delete Sections 5, 6 and 7 in their entirety and replace with the
following: "On or about January 16, 2004, Xxxxxx will issue a Blanket Purchase
Order in the amount of $337,500. Xxxxxx will make payment to Statmon within
twenty-four (24) hours of receipt by Xxxxxx of the Hardware required under the
Blanket Purchase Order. Furthermore, during the next six (6) months from the
Effective Date, Xxxxxx will issue additional Blanket Purchase Orders at the end
of each month, starting on January 31, 2004 and ending on June 30, 2004 in the
amount of $_______ each. With regards to each Blanket Purchase Order starting on
January 31, 2004, no more than twenty-five (25%) percent of the total amount of
each such Blanket Purchase Order shall be for the purchase of Hardware. Xxxxxx
will make payment to Statmon within twenty-four (24) hours of receipt by Xxxxxx
of the Hardware required under each corresponding Blanket Purchase Order. The
Parties agree to negotiate the Annual and Quarterly Forecasts for the period
beginning July 01, 2004 until December 31, 2005 by May 31,2004." In the event
Xxxxxx and Statmon are unable to agree upon Annual and Quarterly Forecasts by
May 31, 2004, Statmon reserves the right to convert Xxxxxx' exclusive rights and
licenses to non-exclusive, effective upon thirty (30) days prior written notice
to Xxxxxx. Notwithstanding the foregoing, should the parties reach agreement
regarding Annual and Quarterly Forecasts by June 30, 2004, such agreement shall
include the terms set forth in the deleted Sections 6 and 7 of the original
Exhibit "D" to the Agreement.
2. No modification or amendment to this Amendment may be made unless agreed to
by the Parties hereto in writing. All other terms and conditions of the
Agreement shall remain unchanged.
IN WITNESS HEREOF, Xxxxxx and Statmon have caused this Amendment to be executed
by their duly authorized representatives.
STATMON TECHNOLOGIES
By: /s/ Xxxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: CEO
XXXXXX CORPORATION
BROADCAST COMMUNICATIONS DIVISION
By: /s/ Haldale X. Xxxxxx
-------------------------------
Name: Haldale X. Xxxxxx
Title: Vice President
Studio Products & Systems
AGREEMENT FOR PURCHASE & SALE OF
REMOTE MONITORING PRODUCTS
This Agreement for Purchase & Sale of Remote Monitoring Products
(hereinafter this "Agreement") is made effective as of this 25th day of February
2003 ("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 exclusively market, distribute and resell Statmon's Products
worldwide; and
WHEREAS, Xxxxxx and Statmon desire to enter into 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.
"ANNUAL FORECAST" shall mean the number of units projected by Xxxxxx to be
purchased for delivery to Xxxxxx in a given Xxxxxx fiscal year (July - June).
"ATSC TRANSPORT STREAM" shall mean a bit stream that is compliant with the
Advanced Television Systems Committee Standard.
"BROADCAST CUSTOMER" shall mean those entities engaged in the business of
NTSC, PAL, SECAM, ATSC broadcasting, DVB-television broadcasting, AM radio
broadcasting, FM radio broadcasting and IBOC broadcasting who use Products and
Licensed Materials procured by Xxxxxx hereunder only for the broadcast of
terrestrial over-the-air signals to television consumers.
"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.
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"DESIGNATED PROCESSOR" shall mean the Product for which the license to Use
Licensed Materials is granted under 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.
"EXCLUSIVE PRODUCT" shall mean, Statmon software packages and remote
terminal units including those listed in Appendix A, any upgrades, software
revisions and any product extensions exclusively 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.
"NON-EXCLUSIVE PRODUCT" shall mean products which are added from time to
time to Appendix A and designated as "Non-Exclusive Products" by the mutual
agreement of the Parties and in which Xxxxxx has non-exclusive rights to market
and resell to customers.
"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.
"OUTSTANDING QUOTES" shall mean all Statmon quotes outstanding as of the
Effective Date and listed in Appendix E.
"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, Exclusive Products attached hereto and made a part of this
Agreement.
"PRODUCTS" shall collectively mean the Hardware and Software which
comprises the Exclusive Products, Non Exclusive Products, and New Products.
"QUARTERLY FORECAST" shall mean the number of units projected by Xxxxxx to
be purchased for delivery to Xxxxxx in a given three (3) month period.
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"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.
"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:
(a) APPENDIX A - EXCLUSIVE PRODUCTS
(b) APPENDIX B - PRIVATE LABELING AND BRANDING INSTRUCTIONS
(c) APPENDIX C - ESCROW AGREEMENT
(d) APPENDIX D - SPECIFICATIONS, DELIVERY SCHEDULE AND TEST PLAN
(e) APPENDIX E - OUTSTANDING QUOTES
(f) APPENDIX F - END USER LICENSE AGREEMENT
(g) APPENDIX G - CONFIDENTIALITY AGREEMENT
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.
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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 Exclusive Products and Licensed Materials
set forth in Appendix A - Exclusive - Products. Xxxxxx shall have the right to
procure Exclusive Products and Licensed Materials under this Exclusive Agreement
with respect to Exclusive Products, to market and resell (subject to the license
terms stated herein) the same on an exclusive basis to Broadcast Customers on a
worldwide basis. Statmon shall remain free to market and sell all Exclusive
Products and Licensed Materials as it, in its sole discretion, deems appropriate
to any customer which is not a Broadcast Customer.
Moreover, during the Term of this Agreement, Statmon may continue to directly
sell the Statmon products to the following end users for their own use and not
for resale to any other group or Affiliate.
(a) XXXXXXXX BROADCAST GROUP, INC.
00000 Xxxxxx Xxx Xxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
(b) LIN TV CORPORATION
0 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
(c) NATIONAL BROADCASTING COMPANY, INC., A DELAWARE CORPORATION
includes 13 NBC TV and 22
Telemundo owned and operated stations
3.2 Statmon, its officers, directors, Affiliates, Key Personnel, and employees
shall not directly or through indirect channels (except for those accounts
identified in 3.1 above) sell, market, promote, or otherwise engage in any
activity the effect of which would compete or interfere with Xxxxxx' exclusive
rights pursuant to this Agreement.
3.3 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 Exclusive Product from Appendix A
only upon mutual written agreement between Xxxxxx and Statmon.
3.4 Statmon hereby assigns the Outstanding Quotes to Xxxxxx and Xxxxxx shall
have the right to fill those orders. Statmon shall notify Xxxxxx when contacted
by a customer to place an order listed in the Outstanding Quotes.
ARTICLE 4 - EXCLUSIVE RIGHTS
4.1 The term of all exclusive rights and exclusive licenses granted to Xxxxxx'
hereunder shall be for the Term of this Agreement and subject to the terms and
conditions set forth in Appendix D - Specifications, Delivery Schedule and Test
Plan, but in no event less than six (6) months commencing the Effective Date,
unless this Agreement is terminated pursuant to the provisions of Article 24.
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. The parties shall in good faith
discuss strategies necessary to facilitate meeting the Annual and Quarterly
Forecasts.
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4.3 COST REDUCTION. The parties agree to use commercially reasonable efforts to
reduce the costs of the Products. Cost improvements will be targeted for
design-related improvement, material handling, sourcing, manufacturing
operations, business practices and quality improvements.
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
Xxxxxx;
(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 as a minimum 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.
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) make commercially reasonable efforts to participate in mutually agreed
upon joint marketing and development efforts, in order to enhance the sales and
industry acceptance of the Products;
(c) develop and manufacture the Exclusive Products in compliance with the
Specifications and provide Xxxxxx with service or replacement for Exclusive
Products in accordance with the terms and conditions of this Agreement.
(d) comply with all applicable requirements of federal, state and local
laws, ordinances, administrative rules and regulations including.
(e) provide Xxxxxx with instructional materials in mutually agreed upon
quantities relating to the Exclusive Products and Licensed Materials for
training and educational purposes as needed; and
(f) provide Xxxxxx with training for Exclusive Products free of charge
during the first six months for Xxxxxx personnel. In the event Xxxxxx desires
additional training, such shall be provided by Statmon at $150.00 per hour or
$1,200 per day.
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(g) retain the following software and business developers for at least a
period of one (1) year from the Effective Date: Xxxxx Xxxxxx and Xxxxxxx Xxxxx,
(the "Key Personnel"). Notwithstanding the foregoing, Statmon may terminate its
agreement with Xxxxxxx Xxxxx at any time for cause and, after the first year,
Statmon may replace Xxxxxxx Xxxxx or Xxxxx Xxxxxx for any reason with the prior
written approval of Xxxxxx, such consent not to be unreasonable withheld.
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:
(i) Complete and correct ship to and xxxx to address;
(ii) The quantity and type of Products and Licensed Materials being
ordered;
(iii) The price;
(iv) 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
(v) Reference to this Agreement.
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.
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 the then applicable Price Schedules or as
amended in accordance with the teens hereof and of Articles 13 and 14 hereof.
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
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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.
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 - REPRESENTATIONS, WARRANTIES AND CONVENANTS
9.1 Statmon represents, warrants and agrees that:
(a) the execution and performance by Statmon of this Agreement will not
conflict with or result in any violation of or constitute a breach or
trigger a default under the agreement between Statmon and NBC or under
any agreement or contract to which Statmon is a party.
(b) should Statmon become unable to perform its material obligations
pursuant to this Agreement for any consecutive ninety (90) day period,
after being notified in writing of such default notwithstanding any
non-competition clause to the contrary, Xxxxxx shall have a right to
retain or hire the Key Personnel without any interference from Statmon
and Statmon shall cooperate and support Xxxxxx in its endeavor.
(c) no other party except for NBC, and certain lienholders or holders of
security interests of Statmon identified herein, have or will have
rights to the Source Code under any escrow or other agreement, the
effect of which would compete or interfere with Xxxxxx' exclusive
rights pursuant to this Agreement. With the exception of escrow
deposits, no third party has or ever had a copy of the Source Code.
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(d) it shall not create, or allow any third party to create, any security
interest in the Licensed Materials without notifying Xxxxxx first and
requiring that the party seeking the security interest enter into a
security interest subordination and subrogation agreement based on
substantially the same terms and conditions as those contained in the
Security Interest Subordination and Subrogation Agreement entered into
by Statmon, Xxxxxx and the Holders on February 7, 2003
(e) it is the sole and exclusive owner of the Licensed Materials and
related intellectual property rights and has the right to grant the
rights and licenses hereunder.
9.2 The representations and warranties made by Statmon shall be fully
enforceable at law or in equity against Statmon and its respective successors
and assigns.
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,
for use by Xxxxxx in creating product information, brochures, and manuals,
("Product Information") relating to the Products with Hams' logo. The
instruction manual and related software will be Xxxxxx branded by Statmon.
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. Xxxxxx shall have the right to use the Statmon name and/or any
Statmon trademark without Statmon's prior written consent.
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 AVAILABILITY/SPARE PARTS
11.1 Statmon shall not discontinue making any Products available to Xxxxxx
without providing Xxxxxx with at least 180 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.
11.2 Statmon shall keep in stock a supply of at least twenty (20) Hardware and
software components and shall replace any discontinued part with one that meets
or exceeds the performance specifications of the discontinued or non-functioning
part to make the system operational.
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.
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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. 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.
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
16.1 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.
16.2 All inventions (whether patentable or unpatentable), improvements,
discoveries and creations (including computer programs and custom interfaces for
Xxxxxx branded products,) and all intellectual property rights therein, which
are conceived or first reduced to practice jointly by Xxxxxx and Statmon, or
solely by Xxxxxx, in performance of this Agreement and intended for use with the
Exclusive Products, or with other Xxxxxx branded products, shall be owned solely
by Xxxxxx, and with respect to such joint efforts, Statmon shall, without charge
to Xxxxxx, but at Xxxxxx' expense, execute and deliver applications for patents
and copyright registrations on such inventions, improvements, discoveries and
creations, together with assignment to Xxxxxx of Statmon's entire interest
therein, and shall give to Xxxxxx reasonable assistance as may be requested in
9
securing, enforcing and protecting such applications, patents, unpublished
copyrights and copyright registrations. Notwithstanding the foregoing, with the
exception of the licenses granted herein, neither the foregoing language nor any
other provision of this Agreement shall be interpreted to xxxxx Xxxxxx any
right, title or interest of any kind in any Software developed and owned by
Statmon, nor any subpart or derivative hereof including, but not limited to, any
enhancement, upgrade, modification, extension or improvement to such Software.
Any idea, regardless of how expressed, suggested by any party, including Xxxxxx
and/or any End User of the Software, which is subsequently incorporated into the
Software by Statmon shall be deemed to have become part of the Software and
therefore remains the sole property of Statmon.
16.3 With regard to all other inventions, improvements, discoveries and
creations, and all intellectual property rights therein, which are conceived or
first reduced to practice jointly by Xxxxxx and Statmon, the parties agree to
negotiate in good faith their respect rights, taking into account their
respective inventive contributions and markets of interest.
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 on an exclusive
use Designated Processor 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 the 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
17.4.
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
sublicenee. 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 sublicensees. 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 sublicense, provided, in either event, that such
sub-licenses fully comply and comport with this article.
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ARTICLE 18 - WARRANTIES
18.1 PRODUCT WARRANTIES: To the extent and subject to the terns 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. Except as disclosed in
Article 9.1(c) and the Security Interest Subordination and Subrogation Agreement
entered into by Statmon, Xxxxxx and the Holders concurrently herewith, 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. Hams 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.
If Products or Software returned to Statmon for any repair or replacement are
not 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.
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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.
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 Hams 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.
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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) Hams promptly notifies Statmon in writing of any suits, claims or demands
against Xxxxxx for which Statmon is responsible under this indemnity, 2) Hams
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
reasonable 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.
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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 The exterior of all Exclusive Products to be provided by Statmon under this
Agreement, together with the related documentation, manuals and software screens
shall be privately labeled, with the trade name and/or trade dress of Statmon
and Xxxxxx, respectively, in accordance with Appendix X. Xxxxxx will provide
Statmon with written instructions and Xxxxxx will bear all costs associated with
applying Xxxxxx' trademarks and logo to Exclusive Products. With the exception
of the labeling activity described herein and as set forth in Section 22.3,
Statmon shall have no right or license to use any Xxxxxx trademark, logo,
derivatives or variants thereof.
22.2 Unless Xxxxxx specifically requests labeling in accordance with Appendix B,
the exterior of all Non-exclusive 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 preuse 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
14
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.
22.3 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 o 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.
15
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.
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 BY XXXXXX: After June 30, 2003 or after the time the firm
commitment for the 118 units, as described in Appendix D, is exhausted
(whichever is earlier), Xxxxxx may terminate this Agreement without cause upon
written 90 days notice to Statmon.
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 two (2) year extensions 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.
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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.
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 Hams has agreed to supply the Products or Licensed
Materials available for procurement by Hams 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 nonassigning 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 - NONWAIVER
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.
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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.
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 Xxxxx
Director DTV Products
b) To Statmon:
Statmon Technologies Corp.
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.
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ARTICLE 37 - PUBLICITY
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.
ARTICLE 38- ESCROW, RELEASES and LICENSES
38.1 Information, documentation and materials relating to the Software and to
the manufacturing and test procedures used by Statmon for the Products shall be
deposited in escrow ("Deposit Materials") by Statmon at no cost to Xxxxxx and
maintained current in accordance with the terms of the Escrow Agreement,
Appendix D. 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 Exclusive 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 Broadcast 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 Exclusive 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 such Exclusive Products, effective upon release of such
documentation from escrow.
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(c) If Statmon: i) discontinues making any Exclusive Product available to
Xxxxxx, as evidenced by written notice by Statmon of its intent, or
delays delivery of any Exclusive 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 Exclusive 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 Exclusive Products for the existing
Broadcast Customers. In addition, Xxxxxx shall have: a) the option to
purchase the Statmon's intellectual property rights in the Software
(including Source Code) at a price equal to the amount of the
forecasted sales remaining for the Term of the Agreement, or b) in the
event Statmon receives a bonafide offer form a third party to purchase
Statmon's intellectual property rights in the Software, Xxxxxx shall
have a right of first refusal to purchase such at the price offered by
the third party,
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.
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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.
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/ Xxxxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: CEO
Date: 2-25-2003
XXXXXX CORPORATION
By: /s/ Haldale X. Xxxxxx
---------------------------------
Name: Haldale X. Xxxxxx
Title: Vice President Studio
Products & Systems
Date: 2-26-2003
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