1
EXHIBIT 10.1
ELECTRONIC BILLBOARD SALES AGREEMENT
THIS AGREEMENT is entered into the 30th day of September, 1999, by and
between ELECTRONIC BILLBOARD TECHNOLOGY, INC., a corporation organized under
the laws of the State of Delaware, having its principal place of business at
Suite 107, 0000 Xxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx, 00000 XXX (hereinafter "EBT"
or "Seller"), and Xxxxxxx Xxxx [place an "X" beside applicable provision]
a. a corporation organized under the laws of the State of
__________________, and having its principal place of business at
----------------------------------------------------------------,
x b. an individual residing at 00 Xxxxxxxxx Xxxx, Xxxxxx, XX00 0XX
Xxxxxx Xxxxxxx.
-----------------------------------------------------------------
c. a general/limited [delete one] partnership organized under the
laws of the State of ______________, and having its principal
place of business at
----------------------------------------------------------------,
d. [other]
----------------------------------------------------------
----------------------------------------------------------------,
(hereinafter referred to as "Buyer").
BACKGROUND
THIS BACKGROUND IS INCLUDED TO ASSIST IN INTERPRETING THIS AGREEMENT AND TO
UNDERSTAND THE BASIS UPON WHICH CERTAIN TERMS AND CONDITIONS HAVE BEEN INCLUDED
IN THIS CONTRACT. IT IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, TO SUPERSEDE
OR AMEND THE SPECIFICALLY, RECITED TERMS AND CONDITIONS OF THIS AGREEMENT.
EBT manufacturers and sells an electronic display unit which may be used for
outdoor advertising purposes (the "Electronic Billboard"). Buyer is interested
in acquiring one or more of the display units for advertising purposes, resale
or both. EBT intends to sell the Electronic Billboard to the Buyer at its cost
(approximately) of producing the Billboard and thereafter share in the profits
generated from Buyer's subsequent sale or use of the Billboard.
Initials
___ EBT
___ Buyer
2
NOW, THEREFORE, for and in consideration of the mutual promises,
covenants and obligations hereafter set forth, the adequacy of which is hereby
acknowledged, the parties agree as follows:
1) DEFINITIONS. The following terms when used in this Agreement shall
have the meaning set forth herein. Each term shall encompass and
include any and all noun forms and any and all verb forms of the term,
including the plural form and both past and present tenses of any verb
form, when necessary to give meaning to a sentence in the context in
which the term is used. All other terms not defined in this Agreement
shall have the common, ordinary meaning normally given such terms.
a) "Agreement" shall mean this Sales Agreement including all
schedules and exhibits and all subsequent additions,
modifications, and amendments hereto.
b) "Design Package" shall mean the plans and specifications for
constructing the necessary frame and enclosure for erecting an
Electronic Billboard.
c) "Electronic Billboard" or "Billboard" shall mean an organization
of integrated Modules and control unit with all software and
hardware to control the Modules as generally described on Schedule
"A" of this Agreement.
d) "Labor" shall mean and include all direct labor expended by EBT by
and through its employees in furtherance of the Sale (as hereafter
defined), including direct supervisory labor and administrative
labor, but does not and shall not include charges for indirect
labor, except as such labor may be included in the direct labor
rate.
e) "Material" shall mean and include raw materials, manufactured
parts, fittings, hardware, fasteners, printed circuits, and like
items.
f) "Module" shall mean a grouping of PETs, the holding frame for the
Pets and all necessary electronics necessary to control the PETs.
g) "PET" shall mean the basic display unit of an Electronic Billboard
as further described on Schedule "A" of this Agreement.
h) "Third-Party" shall mean a person or company, including
individuals, partnerships, corporations or business trusts, other
than EBT or Buyer, irrespective of whether or not EBT or Buyer is
a participant by way of partnership or equity investment or
otherwise, in the other company.
2) SCHEDULES. The terms, conditions, obligations and covenants recited in
the following noted schedules (noted with an "X" before the applicable
schedule), are a part of this Agreement and incorporated within this
Agreement by reference:
Initials
___ EBT
___ Buyer
3
a) X Schedule A, Description of the Electronic Billboard, PET and
Module.
b) X Schedule B, Electronic Billboard Deposit Form
c) X Schedule C, Exclusive Clients
d) X Schedule D, Terms of Mediation and Arbitration.
3) BUYER TO PURCHASE ELECTRONIC BILLBOARD(S) FROM EBT. Subject to the
other terms and conditions of this Agreement, Buyer agrees to purchase
from EBT and EBT agrees to sell and deliver to Buyer ___ unit(s) of
the Electronic Billboard.
4) ACQUISITION SCHEDULE. The following schedule shall be followed by the
parties for each Billboard to be manufactured and delivered under the
terms of this Agreement.
a) Upon the execution of this Agreement, Buyer shall immediately
place a deposit (the "Deposit") with EBT in an amount which is
equal to the cost of the estimated number of PETS required to
produce the first Electronic Billboard to be ordered pursuant to
this Agreement In no case shall the deposit be less than the cost
of the number of PETs required to produce an Electronic Billboard
of a size equal to eight feet by ten feet. The actual size of the
Electronic Billboard is to be determined by the number of PETs
within the Billboard. If Buyer desires to place an initial order
with EBT to acquire a Billboard which exceeds 8' X 10' in size,
then the deposit shall be calculated based upon number of PETs to
be ordered which will be determined by completing the worksheet
attached hereto and marked "Schedule B, Electronic Billboard
Deposit Form." The cost of the PETs will be determined by
multiplying the number of PETs required for the first Billboard by
the unit cost for each PET set forth on Schedule B.
b) If Buyer is unable to obtain a Third-party customer for the
Billboard who is willing to purchase the Billboard or Buyer is
unable to sell sufficient advertising on the Billboard to make
this venture economically feasible or for any other reason (e.g.,
legal restrictions) Buyer is prevented from going forward with
this Agreement and Buyer, at its option, desires to terminate this
Agreement, then upon written notice given by Buyer to EBT, EBT
will refund to Buyer eighty-five percent (85%) of the amount of
the Deposit (referred to in paragraph 4)a) above) upon Buyer
returning to EBT the Billboard and/or all PETS and/or Modules in
good working order. EBT reserves the right to inspect all
materials returned to it by Buyer and to withhold the refund of
the Deposit for any materials which are not received by Buyer at
its facility in Austin, Texas, USA in good working order. Written
notice of Buyer's intent to seek a refund of the Deposit must be
given to six months of the date of this Agreement.
c) Each Electronic Billboard to be purchased by Buyer will be ordered
by completing a separate Purchase Order, which will include, as
minimum, the following information:
i) The size of the Billboard to be ordered with the resulting
additional number of PETs to be ordered (if any);
ii) The delivery date of the Billboard;
Initials
___ EBT
___ Buyer
4
iii) The total cost of the Billboard;
iv) An analysis of the Gross Revenue to be generated from the
sale or use of the Billboard;
v) Required interim payments; and
vi) Requirements for final
payment.
d) EBT has the right to reject any Purchase Order and terminate this
Agreement by refunding the Deposit to Buyer.
e) EBT will notify Buyer upon the completion of the Billboard. Buyer
will provide EBT with shipping instructions. Normal transportation
costs are to be quoted F.O.B. Houston, Texas, USA.
f) The above schedule shall be followed for each separate unit of the
Electronic Billboard to be acquired by Buyer.
5) EBT TO TRAIN BUYER'S PERSONNEL. Upon execution of this Agreement, and
at a time to be mutually agreed upon between EBT and Buyer, EBT will
train personnel of Buyer in the installation, repair and maintenance
of the Electronic Billboard. The training will be at no cost to Buyer
and will take place at EBT's facility in Austin, Texas USA. Buyer
shall be responsible for paying for all travel expenses and other
compensation (e.g. salary, wages or similar) of the personnel to be
trained.
6) BUYER'S RESPONSIBILITY. Buyer is responsible for accomplishing the
following:
a) Buyer shall pay for the PETs upon placing an order for each
Electronic Billboard.
b) Buyer shall make all necessary arrangements for the installation
of the Electronic Billboard, including but not limited to,
obtaining necessary licenses and legal permits and providing the
structure to support and display the Billboard (which structure
shall meet or exceed parameters to be supplied by EBT as part of
the Design Package).
c) Provide qualified personnel to be trained by EBT in the repair and
maintenance of the Billboard.
d) Pay all invoices for the Billboard or other proper charges
pursuant to this Agreement on the credit terms of "net 30 days."
e) Pay EBT its share of revenue from the use of the Billboard, as
hereafter provided.
7) REVENUE SHARING. Upon delivery of each Electronic Billboard to be
ordered under this Agreement, the parties shall share the revenue to
be generated therefrom in the following manner:
a) If Buyer retains the Billboard and sells advertising on the
Billboard, then Buyer shall pay to EBT ten percent (10%) of the
Advertising Revenue received or receivable from the Third-party.
The term Advertising Revenue shall mean the actual consideration
received from the Third-Party. Where the Advertising Revenue is in
the form of non-cash consideration, the
Initials
___ EBT
___ Buyer
5
Advertising Revenue shall be deemed to be the normal and customary
charge to other Third-Parties advertising on the same Billboard.
b) If Buyer desires to sell the Billboard to a Third-party or to
enter into any financial relationship with a Third-party arising
from the use or sale of a Billboard, save and except the financial
relationship set forth in paragraph a) above, the compensation to
be paid to EBT shall be subject to future negotiations between the
parties.
8) EXCLUSIVE RIGHTS. Upon execution of this Agreement and the ordering of
PETs for the first Electronic Billboard, Buyer shall be given an
exclusive right to sell Billboards or Advertising to Third-Parties
within the area and for the period of time listed on Schedule C,
Exclusive Clients of this Agreement. No other right, license, title or
interest is granted by EBT to Buyer pursuant to this Agreement.
9) PRODUCT WARRANTY. THE EXPRESS WARRANTY SET FORTH HEREAFTER IS THE SOLE
WARRANTY GRANTED BY EBT HEREUNDER AND IS IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
a) EBT WARRANTS THAT ALL LABOR PERFORMED BY EBT SHALL BE ACCOMPLISHED
IN A GOOD AND WORKMANLIKE MANNER AND WILL BE FREE FROM DEFECTS FOR
A PERIOD OF ONE (1) YEAR FROM THE DATE OF RECEIPT OF THE
ELECTRONIC BILLBOARD BY THE BUYER. EBT WARRANTS THAT ALL PARTS AND
MATERIAL USED ON THE ELECTRONIC BILLBOARD WILL BE FREE FROM
DEFECTS FOR A PERIOD OF NINETY (90) DAYS FROM THE DATE OF RECEIPT
OF THE ELECTRONIC BILLBOARD BY THE BUYER. IF THE MANUFACTURER'S
WARRANTY ON ANY PART COVERS THE PART WHILE IN THE POSSESSION OF
THE BUYER AND/OR AFTER TITLE TO THE BILLBOARD HAS TRANSFERRED TO
BUYER, AND THE WARRANTY EXCEEDS THE NINETY DAYS WARRANTY GRANTED
BY EBT, THEN EBT SHALL EXTEND THE ADDITIONAL WARRANTY PERIOD ON
THOSE PARTS (IF ANY) TO THE BUYER. IF DURING THE ABOVE-STATED
WARRANTY PERIOD, ANY PART IS VERIFIED TO BE DEFECTIVE BY EBT AFTER
INSPECTION AT EBT'S FACILITY, THEN EBT, AT ITS SOLE AND EXCLUSIVE
OPTION, MAY EITHER REPAIR OR REPLACE THE DEFECTIVE PART. BUYER
SHALL BE RESPONSIBLE FOR PACKAGING THE DEFECTIVE PART AND SHIPPING
IT TO EBT. DEFECTS WHICH RESULT FROM MISUSE OR MISHANDLING BY
BUYER OR DAMAGE TO THE PART WHILE IN TRANSIT TO EBT'S FACILITY
SHALL NOT BE COVERED BY THIS WARRANTY. BUYER SHALL PROMPTLY NOTIFY
EBT OF ANY DEFECTIVE WORK OR MATERIAL WHICH IS DISCOVERED BY BUYER
BEFORE THE EXPIRATION OF THE ABOVE-RECITED WARRANTY PERIOD. ANY
DELAY IN NOTIFYING EBT OF ANY DEFECT, WHICH DELAY PREJUDICES ANY
RIGHTS OF EBT, SHALL RENDER THIS WARRANTY NULL AND VOID. EBT SHALL
THEREAFTER MAKE ARRANGEMENTS TO CORRECT ANY DEFECTS THAT RESULT
FROM WORKMANSHIP. AFTER THE EXPIRATION OF THE NINETY DAY WARRANTY
ON PARTS AND MATERIAL, BUT DURING THE PERIOD WHEN THE LABOR
WARRANTY IS STILL IN EFFECT, EBT SHALL INVOICE THE BUYER FOR THE
PRICE OF ANY PARTS USED BY EBT IN REPAIRING THE DEFECT. THIS
EXPRESS WARRANTY IS IN LIEU OF ANY AND ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND EBT DOES SPECIFICALLY DISCLAIM THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
Initials
___ EBT
___ Buyer
6
10) MEDIATION AND ARBITRATION. Any controversy between the parties hereto
involving the construction or application of any of the terms,
covenants, or conditions of this agreement, shall be submitted to
mediation and if mediation is unsuccessful in resolving all disputes
between the parties, then any and all remaining disputes shall be
submitted to binding arbitration. The terms and conditions of the
mediation and arbitration are set forth on Schedule D, Terms of
Mediation and Arbitration.
11) DEFAULT. If Buyer fails to pay EBT for the Billboard or any part
thereof provided to Buyer within the time frames established by this
Agreement, then EBT may cease work, declare the contract in default
and seek any and all remedies provided to it by law. Furthermore,
Buyer hereby grants EBT a lien against any and all goods which are
part of the Billboard, to secure Buyer's performance hereunder.
12) NOTICES. Any notice required to be given under this Agreement shall be
delivered in person, or by certified mail, return receipt requested,
postage prepaid, or by facsimile copier sent to the other party's
proper facsimile number, addressed to the other party as follows:
a) If to EBT: Electronic Billboard Technology, Inc.
0000 Xxxxxxxx Xxxx., Xxxxx 000
Xxxxxx, XX 00000
Attn.: Xx. Xxx Xxxxx, COO
b) If to Buyer: Xxxxxxx Xxxx
00 Xxxxxxxxx Xxxx
Xxxxxx XX00 0XX
Xxxxxx Xxxxxxx
(1) Attn.:
13) GENERAL.
a) Covenant Against Re-exportation. Buyer covenants that all units
will be shipped to and delivered in the UK [country of
destination], and that Buyer will not ship, deliver, or re-export
the units delivered pursuant to this Agreement to any other
country without the express written consent of EBT.
b) Required Licenses. This Agreement is contingent on the issuance of
an export license in the name of EBT by the appropriate agency of
the government of United States of America. The parties agree that
if EBT is unable to obtain any required export licenses, this
Agreement shall be void and of no effect.
Initials
___ EBT
___ Buyer
7
c) Tariff Increase. If the United States imposes an additional duty
on any goods that comprise the subject matter of this Agreement
between the date of execution of this Agreement and the date of
the shipment of the goods, EBT shall have the right to terminate
this Agreement for goods not shipped by promptly providing Buyer
with written notice.
d) Cancellation by Buyer. In the event of any delay in EBT's
performance due to fire, hurricane, flood, or other act of God,
war or civil commotion, labor dispute or strike, governmental
action, or any other cause beyond the reasonable control of EBT,
EBT shall have additional time not to exceed thirty (30) days
within which to perform its obligations under this Agreement. In
the event such nonperformance continues after that extended
period, Buyer shall have the right to cancel this Agreement to the
extent of the nonperformance by providing EBT with written notice
of cancellation.
e) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and
merges all prior and contemporaneous communications. It shall not
be modified except by a written agreement dated subsequent to the
date of this Agreement and signed on behalf of EBT and
Representative by their respective duly authorized
representatives. This Agreement revokes all previous agreements
between the parties with regard to the subject matter of this
Agreement.
f) Assignment. Buyer may not assign this Agreement in whole or in
part to any Third-Party without the express written consent of
EBT.
g) Controlling Law. This Agreement shall be construed and controlled
by the United Nations Convention on Contracts for the
International Sale of Goods (the "Convention"), to the extent that
the Convention covers the subject matter of this Agreement. If the
Convention does not apply to the subject matter of this Agreement
in whole or in part, then the portion of the Agreement not subject
to the Convention shall be construed and controlled by the law of
the State of New York, USA. Jurisdiction and venue for any suit
brought to enforce any provision of this Agreement, which suit is
not covered by the Mediation and Arbitration provision of this
Agreement, shall be brought in New York, NY, U.S.A.
h) Invalidity. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be illegal, invalid, or
unenforceable, the remaining provisions shall remain in full force
and effect.
i) Waiver. No waiver of any breach of any provision of this Agreement
shall constitute a waiver of any prior, concurrent, or subsequent
breach of the same or any other provisions hereof, and no waiver
shall be effective unless made in writing and signed by an
authorized representative of the waiving party.
j) Section Headings. The Section headings used in this Agreement and
the attached Schedules are intended for convenience only and shall
not be deemed to supersede or modify any provisions.
Initials
___ EBT
___ Buyer
8
k) Binding Nature of the Agreement. Subject to the limitations set
forth in this Agreement, this Agreement will inure to the benefit
of and be binding upon the parties, and, as applicable, their
successors, administrators, heirs, and/or assigns.
THIS AGREEMENT IS ENTERED INTO AS OF THE DATE FIRST WRITTEN ABOVE.
ELECTRONIC BILLBOARD TECHNOLOGY, INC. XXXXXXX XXXX
("EBT") ("Buyer")
By: /s/ Xxxx Xxxxx By: /s/ Xxxxxxx Xxxx
--------------------------------- -----------------------------------
Xxxx Xxxxx Xxxxxxx Xxxx
--------------------------------- -----------------------------------
Printed Name Printed Name
President Director
--------------------------------- -----------------------------------
Title Title
September 30, 1999 September 30, 1999
--------------------------------- -----------------------------------
Date Date
Initials
___ EBT
___ Buyer
9
SCHEDULE A
TO
SALES AGREEMENT
BETWEEN
ELECTRONIC BILLBOARD TECHNOLOGY, INC.
AND
XXXXXXX XXXX
ELECTRONIC BILLBOARD DESCRIPTION
AN ELECTRONIC BILLBOARD IS A DEVICE FOR ELECTRONICALLY DISPLAYING
ADVERTISING MESSAGES. EACH ELECTRONIC BILLBOARD IS MADE UP OF A SERIES OF
INTEGRATED MODULES, THE MECHANICAL DESIGN AND THE SOFTWARE TO CONTROL THE
MODULES. EACH MODULE CONTAINS SIXTEEN PETS, A MAIN BOARD, AN INTERFACE BOARD, A
FIVE VOLT POWER SUPPLY AND A CHASSIS. THE SIZE OF THE ELECTRONIC BILLBOARD IS
DETERMINED BY THE NUMBER OF MODULES. AN ILLUSTRATION OF THE MAJOR VFD MODULE
COMPONENTS IS ATTACHED HERETO AND MARKED SCHEDULE A-1.
Initials
___ EBT
___ Buyer
10
SCHEDULE A1
-----------
MAJOR VFD MODULE COMPONENTS
-------------------------------------------------------------------------
MAIN BOARD
-------------------------------------------------------------------------
PET
-------------------------------------------------------------------------
INTERFACE BOARD
-------------------------------------------------------------------------
5V POWER SUPPLY
-------------------------------------------------------------------------
CHASSIS
-------------------------------------------------------------------------
Initials
___ EBT
___ Buyer
11
SCHEDULE B
TO
SALES AGREEMENT
BETWEEN
ELECTRONIC BILLBOARD TECHNOLOGY, INC.
AND
XXXXXXX XXXX
ELECTRONIC BILLBOARD DEPOSIT FORM
[ ] BUYER DESIRES TO PLACE AN INITIAL DEPOSIT FOR A BILLBOARD OF THE
SIZE 8' X 10'. THE DEPOSIT FOR THIS SIZE BILLBOARD IS $89,600.00 U.S.D.
(1,280 PETS X $70.00 PER PET).
[ ] 1. BUYER DESIRES TO PLACE AND INITIAL DEPOSIT FOR A BILLBOARD OF
THE FOLLOWING SIZE: 8' x 10'.
2. THE NUMBER OF PETS REQUIRED TO PRODUCE THIS SIZE BILLBOARD IS: 1280.
3. THE UNIT COST PER PET IS: $70.00.
4. THE AMOUNT OF THE REQUIRED DEPOSIT IS $89,600 USD.
Initials
___ EBT
___ Buyer
12
SCHEDULE C
TO
SALES AGREEMENT
BETWEEN
ELECTRONIC BILLBOARD TECHNOLOGY, INC.
AND
XXXXXXX XXXX
THIS SCHEDULE SETS FORTH THE EXCLUSIVE RIGHTS AGREED TO IN PARAGRAPH 8) OF THE
AGREEMENT.
AREA OF EXCLUSIVITY: All of UK and Ireland.
PERIOD OF EXCLUSIVITY: For the six-month period commencing with the date of
execution of this Agreement and receipt by EBT of the Deposit set forth in
Section 4)a). Upon the receipt of a bona fide order from a third-party customer
for an Electronic Billboard and the resulting issuance of a Purchase Order by
Buyer to EBT to procure the Electronic Billboard ordered by the customer and
upon the acceptance of the Purchase Order by EBT, Buyer shall be granted an
extension of the period of exclusivity for an additional one-year period
thereafter making the total period of exclusivity eighteen (18) months from the
date of the Agreement.
Initials
___ EBT
___ Buyer
13
SCHEDULE D
TO
SALES AGREEMENT
BETWEEN
ELECTRONIC BILLBOARD TECHNOLOGY, INC.
AND
XXXXXXX XXXX
MEDIATION AND ARBITRATION
Any controversy between the parties hereto involving the construction or
application of any of the terms, covenants, or conditions of this agreement,
shall on the written request of one party served upon the other, be submitted
to mediation, and if mediation is unsuccessful in resolving all of the disputes
between the parties, then any and all remaining disputes shall be submitted to
binding arbitration, and such arbitration shall comply with and be governed by
the rules and regulations of the American Arbitration Association, except as
said rules and regulations are modified by this Agreement, and in such event
the provisions of this Agreement shall apply.
a. Either party shall initiate a mediation under this Agreement, by
notifying the other party, in writing, of its intent to mediate a
dispute, which notification shall set forth the nature of the dispute,
the amount involved, if any, and the remedy sought. The date that the
written notice is received by the other party is the Notification
Date. A mediation hearing shall be held not later than thirty (30)
days from the Notification Date. A Mediator shall be jointly agreed
upon between the parties, within five (5) days of the Notification
Date. If the parties are unable to agree upon a Mediator, then the
parties, or either of them, shall forthwith submit an application to
any Court having jurisdiction of the parties and the amount in
controversy, to appoint a Mediator. The decision of the judge as to
the selection of the Mediator shall be final and binding on the
parties. The fees of the Mediator and all costs of Mediation shall be
shared equally by the parties. Each party shall agree to mediate any
dispute in good faith, and the failure to so mediate shall constitute
a condition of default under this Agreement.
b. If the parties are unable to resolve all of their disputes through
mediation, then any and all remaining disputes shall immediately be
submitted to arbitration. The parties shall, if possible, jointly
select a single Arbitrator to hear the dispute(s). The Mediator may be
selected as the Arbitrator or with agreement of the parties may be
requested to select an Arbitrator. If the parties are unable to agree
on a single Arbitrator, then within seven (7) days of the Mediation
Hearing, each party shall appoint an Arbitrator. The two Arbitrators
so appointed shall meet forthwith for the purpose of selecting a third
Arbitrator. Unless for good cause, the third Arbitrator so selected
shall be a licensed attorney-at-law and shall preside at the
Arbitration Hearing. The Arbitration Hearing shall be held not later
than seventy-five (75) days from the Notification Date. At the
Initials
___ EBT
___ Buyer
14
Arbitration Hearing each party shall have no more than eight (8) hours
to present its case or its position on the issue, including any time
for rebuttal. A final decision of the Arbitrator(s) (whether one or
more) shall be issued not later than ninety (90) days from the
Notification Date. In rendering the decision, the Arbitrator(s) shall
make no award of money to either party which is in the nature of
"Punitive" or "Exemplary" damages or is otherwise intended to punish
or make an example of the party, save and except that the award to a
party of its costs and expenses, including the recovery of its
reasonable attorneys fees, shall not be considered to be punitive or
exemplary. The decision of the Arbitrator(s) shall be final as to any
issue of fact recited in the decision. No appeal may be taken from the
decision of the Arbitrator(s) except as to a manifest
misinterpretation or misapplication of law or failure to abide by the
terms and conditions of this Section and any appeal shall be taken
within thirty (30) days of the date of the decision of the
Arbitrator(s), or the appeal will be waived.
c. The times listed herein may not be modified except by written
agreement of the parties. Judgment on the arbitration award may be
entered in any federal or state court having jurisdiction thereof.
Each party shall bear its own costs and expenses in regard to the
arbitration, unless otherwise awarded by the Arbitrator(s). Fees and
expenses of the Arbitrator(s) and the costs attendant with the
Arbitration Hearing shall be shared equally between the parties,
unless otherwise awarded by the Arbitrator(s). The hearing shall be
recorded by tape recorder or video recorder and the cost of the
recording shall be equally shared between the parties.
d. Each Mediator and Arbitrator appointed hereunder shall be an unbiased,
third party, with no personal interest in the outcome of the dispute,
and further, when possible, shall be generally familiar with the area
of business in which the parties are engaged.
Initials
___ EBT
___ Buyer
