OPTION AGREEMENT EFFECTIVE DATE: May 18, 2009
EFFECTIVE
DATE: May 18, 2009
This Option
Agreement (the “Agreement”)
is made by and between GVI
Security Video Management Solutions, LLC (“GVI”), a
Delaware limited liability company with its principal place of business in ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; GVI
Solutions, Inc. (“Parent”),
a Delaware corporation with its principal place of business in ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; PacketNVR,
LLP (“PNVR”) an
Illinois limited liability partnership with its principal place of business in
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; and Omeon,
Inc. (“Omeon”),
an Iowa corporation with its principal place of business in ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Each of GVI, PNVR and Omeon a “Party”,
and collectively the “Parties”.
Recitals
A. Omeon
provides custom software development with expertise in video processing
technologies, specializing in video security and web based video delivery, and
will continue to do so for existing and new clients following the execution of
this document.
B.
GVI is
purchasing from PNVR all rights, title and interest in the version 1.1 of a
certain video capture software, the “PacketNVR
Software”, by way of an “Intellectual
Property Assignment Agreement” between GVI and PNVR.
C. GVI
will compensate PNVR for such assignment as per the terms of this
Agreement.
D. GVI is
contracting Omeon to support version 1.1 of the PacketNVR Software, and any
later acquired versions, if any, by way of a separate “Software Support
and Development Agreement” between GVI and Omeon.
E.
GVI is a
wholly-owned subsidiary of Parent, and Parent will guaranty the payment
obligations of GVI hereunder.
F. GVI
desires to grant Omeon a license to further develop the features and
functionalities of the PacketNVR Software, for Omeon’s internal development
purposes only, on a non-exclusive basis, and to contract with Omeon for the
right and option to obtain from Omeon further developments of the PacketNVR
Software made by or for Omeon, by way of this Agreement (i.e. the “Option
Agreement”).
F.
The
Parties want to sign this Option Agreement to give GVI the option to purchase,
and Omeon the right to compel GVI to purchase, all new versions that may be
developed of the PacketNVR Software by Omeon pursuant to any licenses under this
Agreement.
G.
Collectively,
the Intellectual Property Assignment Agreement, the Option Agreement and the
Software Development and Support Agreement to be referred to as the “Definitive
Agreements”.
Agreement
For good and valuable consideration,
the sufficiency of which is acknowledged, the parties agree as
follows:
1. License Grant to Omeon.
Subject to the terms and conditions of this Agreement, GVI hereby grants Omeon a
limited, revocable, worldwide, non-exclusive, non-transferable,
non-sublicenseable (except as permitted by this Agreement) right and license to
reproduce, prepare derivative works and otherwise use the object and/or source
code version of the PacketNVR Software, including all subsequent versions that
may be delivered to GVI hereunder, solely in connection with and for the
purposes of further developing the functionalities of the PacketNVR
Software.
2. General Usage
Restrictions.
2.1 Omeon will not use the
PacketNVR Software for any purposes beyond the scope of the licenses granted in
this Agreement.
2.2 Without limiting the
generality of the foregoing, Omeon will not (i) install, use or knowingly permit
the use of the PacketNVR Software; (ii) market or distribute the
PacketNVR Software; (iii) assign, sublicense, market, sell, lease,
rent, distribute or otherwise transfer or convey, or pledge as security or
otherwise encumber, Omeon’s rights under the license granted in Section 2.1;
(iv) use the PacketNVR Software in any time-sharing or service bureau
arrangement, including, without limitation, any use to provide services or
process data for the benefit of, or on behalf of, any third party; (v) combine
or integrate the PacketNVR Software with hardware, software or technology not
expressly contemplated hereunder; and (vi) except as otherwise provided herein,
decompile, disassemble, reverse engineer or otherwise attempt to reconstruct,
obtain or perceive the source code from which any component of the PacketNVR
Software is compiled or interpreted, and Omeon hereby acknowledges that nothing
in this Agreement shall be construed to grant Omeon any right to use or
otherwise obtain access to, any such source code from which any software
component of the PacketNVR software is compiled or interpreted.
2.3 Omeon shall not knowingly
enter into any contractual relationship or other legally binding obligation with
any third party which shall have the intended purpose or effect of encumbering
the use by GVI of the PacketNVR Software.
2.4 Omeon shall include all
proprietary notices and legends of GVI upon any and all copies of and
developments on the PacketNVR Software made by Omeon. Omeon shall not remove,
alter or obscure any such proprietary notice or legend.
2.
3. Omeon Development of Future Versions.
Omeon agrees to run concurrent developments of all new versions of the
PacketNVR Software in accordance with the schedule established in Exhibit A. Under the terms of
this Agreement, Omeon may further develop versions 1.2, 1.3 and 2.0. of the
PacketNVR Software.
4. GVI’s Options to Purchase and Cost
Structure.
4.1 Version 1.2. In the event that
Omeon develops version 1.2 of the PacketNVR Software, and provided such version
1.2 meets all the specifications, features and functions set forth in Exhibit B (the “Specified
Functionality Requirements”), Omeon shall notify GVI of such development.
GVI shall perform Acceptance Tests, as provided in Section 9, and upon
Acceptance of such version 1.2, GVI shall have the option to purchase such
software and associated intellectual property rights for a total price of: (a)
one hundred and ten thousand dollars (US$110,000.00) to Omeon, which amount
shall be due and payable solely if there is, and upon, an Acceptance of version
1.2 alpha of the PacketNVR Software by GVI, as per the terms of Section 9; and
(b) thirty-six thousand three hundred and ninety-nine dollars (US$36,399.00) to
Omeon, which amount shall be due and payable solely if there is, and upon, upon,
an Acceptance of the final version 1.2 of the PacketNVR Software by GVI, as per
the terms of Section 9. If GVI chooses not to purchase the version
1.2 of the PacketNVR Software, and provided such version 1.2 meets all the
Specified Functionality Requirements, Omeon shall have the right to compel GVI
to purchase the software and all associated intellectual property rights. If
Omeon exercises this right, GVI shall have the obligation to purchase the
aforementioned software for a total price of one hundred and forty-six thousand
and three-hundred ninety-nine dollars (US$146,399.00). (A summary
of potential payments under this Agreement and the Intellectual
Property Assignment Agreement is hereby detailed in Exhibit D).
4.2 Requirements of Version 1.2.
The Specified Functionality Requirements of version 1.2 of the PacketNVR
Software shall include but are not limited to, supporting GVI branded cameras
(IP series), incorporate the functions and features set of version 1.1. of the
software; and meeting the Acceptance criteria established in this
Agreement.
4.3 Version 1.3. In the event that
Omeon develops version 1.3 of the PacketNVR Software, and provided such version
1.3 meets all the Specified Functionality Requirements, Omeon shall notify GVI
of such development. GVI shall perform Acceptance Tests, as provided in Section
9, and upon Acceptance of such version 1.3, GVI shall have the option to
purchase such software and associated intellectual property rights for a total
price of: (a) ninety thousand dollars (US$90,000.00) to Omeon, which amount
shall be due and payable solely if there is, and upon, an Acceptance of version
1.3 alpha of the PacketNVR Software by GVI, as per the terms of Section 9; and
(b) thirty-one thousand three hundred and ninety-nine dollars (US$31,399.00) to
Omeon, which amount shall be due and payable solely if there is, and upon, upon,
an Acceptance of the final version 1.3 of the PacketNVR Software by GVI, as per
the terms of Section 9. If GVI chooses not to purchase the
version 1.3 of the PacketNVR Software, and provided such version 1.3 meets all
the Specified Functionality Requirements, Omeon shall have the right to compel
GVI to purchase the software and all associated intellectual property rights. If
Omeon exercises this right, GVI shall have the obligation to purchase the
aforementioned software for a total price of one hundred and twenty-one thousand
thee hundred and ninety-nine dollars (US$121,399.00).
3.
4.4 Requirements of Version 1.3.
The Specified Functionality Requirements of version 1.3 of the PacketNVR
Software shall include but are not limited to, supporting Samsung branded
digital video recorders (“DVRs”), supporting the viewing of multiple servers and
DVRs simultaneously, incorporate the functions and features set of version 1.1.
and 1.2. of the software, as well as meeting the Acceptance criteria established
in this Agreement.
4.5 Version 2.0. In the
event that Omeon develops version 2.0 of the PacketNVR Software, and provided
such version 2.0 meets all the Specified Functionality Requirements, Omeon shall
notify GVI of such development. GVI shall perform Acceptance Tests, as provided
in Section 9, and upon Acceptance of such version 2.0, GVI shall have
the option to purchase such software and associated intellectual property rights
for a total price of: (a) ninety-nine thousand dollars (US$99,000.00)
to Omeon, which amount shall be due and payable solely if there is, and upon, an
Acceptance of version 2.0 alpha of the PacketNVR Software by GVI, as per the
terms of Section 9; and (b) thirty-three thousand seven hundred and ninety-eight
dollars (US$33,798.00) to Omeon, which amount shall be due and payable solely if
there is, and upon, upon, an Acceptance of the final version 2.0 of the
PacketNVR Software by GVI, as per the terms of Section 9; and
(c) eighty-six thousand dollars (US$86,000.00) to PacketNVR, which
amount shall be due and payable solely if there is, and upon, an Acceptance of
version 2.0 alpha of the PacketNVR Software by GVI, as per the terms of Section
9; and (d) twenty-nine thousand dollars (US$29,000.00) to PacketNVR, which
amount shall be due and payable solely if there is, and upon, upon, an
Acceptance of the final version 2.0 of the PacketNVR Software by GVI, as per the
terms of Section 9 . If GVI chooses not to purchase the version 2.0
of the PacketNVR Software, and provided such version 2.0 meets all the Specified
Functionality Requirements, Omeon shall have the right to compel GVI to purchase
the software and associated intellectual property rights. If Omeon exercises
this right, GVI shall have the obligation to purchase the aforementioned
software for a total price of two hundred and forty- seven thousand one-hundred
ninety-eight dollars (US$247,198.00), divided in two separate payments: (a) one
payment of one hundred and thirty-two seven-hundred ninety-eight thousand
dollars (US$132,798.00) to Omeon; and (b) one payment of one hundred and fifteen
thousand dollars (US$115,000.00) to PNVR.
4.6 Requirements of Version 2.0.
The Specified Functionality Requirements of version 2.0 of the PacketNVR
Software shall include but are not limited to, all functions and features set of
versions 1.1, 1.2 and 1.3, as well as meeting the Acceptance criteria
established in this Agreement.
5. GVI Obligations. In
the event GVI exercises its option to purchase the developed versions 1.2, 1.3
and 2.0 of the PacketNVR Software, or if in the alternative, Omeon exercises its
right to compel GVI to purchase versions 1.2, 1.3 and 2.0, or any combination of
GVI exercising its options and Omeon exercising its rights to compel purchase
with respect to versions 1.2, 1.3, and 2.0 resulting in versions 1.2, 1.3, and
2.0 being transferred to GVI and provided such developed versions meet the
Specified Functionality Requirements and/or any acceptance criteria established
in this Agreement, GVI shall be obligated to remit the payments described in
Section 4 of this Agreement.
6. GVI Obligations, if selling its
interests to a third party. GVI hereby covenants that in the event it
sells the PacketNVR Software to a third party, such third party shall be bound
by this Agreement and the Software Development and Support Agreement, including
all the terms and provisions of this Agreement.
4.
7. Ownership of Development.
Provided GVI purchases a particular version of the PacketNVR Software, Omeon
hereby irrevocably assigns, grants and conveys to GVI all right, title and
interest, now existing or that may exist in the future, in and to any
intellectual property rights in any further development of such version of the
PacketNVR Software or work product created by Omeon, on behalf of Omeon by its
contractors, or to which Omeon contributes (collectively the “Development”);
and including all copyrights, trademarks, moral rights and other intellectual
property rights (including but not limited to patent rights) relating thereto.
Omeon agrees that any and all Development shall be and remain the property of
GVI. Omeon agrees to execute, at GVI’s request and expense, all documents and
other instruments necessary or desirable to confirm such assignment, including
without limitation, the intellectual property assignment set forth as Exhibit C (“Assignment of
Intellectual Property Rights”). In the event that Omeon does
not, for any reason, execute such documents within a reasonable time of GVI’s
request, Omeon hereby irrevocably appoints GVI as Omeon’s attorney-in-fact for
the purpose of executing such documents on Omeon’s behalf, which appointment is
coupled with an interest. Omeon shall not attempt to register any works created
by Omeon pursuant to this Agreement at the U.S. Copyright Office, the U.S.
Patent & Trademark Office, or any foreign copyright, patent, or trademark
registry. Omeon retains no rights in the Developments and agrees not to
challenge GVI’s ownership of the rights embodied in the
Development. Omeon further agrees to assist GVI in every proper way
to enforce GVI’s rights relating to the Development in any and all countries,
including, but not limited to, executing, verifying and delivering such
documents and performing such other acts (including appearing as a witness) as
GVI may reasonably request for use in obtaining, perfecting, evidencing,
sustaining and enforcing GVI’s rights relating to the Development.
8. Artist’s, Moral, and Other
Rights. If Omeon has any rights, including without limitation “artist’s
rights” or “moral rights,” in the Development which cannot be assigned (the
“Non-Assignable
Rights”), Omeon agrees to waive enforcement worldwide of such rights
against GVI. In the event that Omeon has any such rights that cannot be assigned
or waived Omeon hereby grants to GVI a royalty-free, paid-up, exclusive,
worldwide, irrevocable, perpetual license under the Non-Assignable Rights to (i)
use, make, have made, sell, offer to sell, import, and further sublicense the
Development, and (ii) reproduce, distribute, create derivative works of,
publicly perform and publicly display the Development in any medium or format,
whether now known or later developed.
9. Acceptance Criteria. GVI will
test and evaluate the Development (the “Alpha
Test”) promptly after the delivery of the Development to GVI (the “Delivery
Date”). After finishing the Alpha Test, GVI may, at its option and upon
notice to Omeon, conduct additional tests (the “Beta
Test”), for purposes of determining whether the Development conforms to
the Specified Functionality Requirements (collectively, the Alpha Test and Beta
Test to be referred as the “Acceptance
Tests”). The total period for the Acceptance Tests shall last no more
that seventy five (75) days. In the event that such Acceptance Tests reveal any
nonconformity of the Development with respect to the Specified Functionality
Requirements, GVI will promptly notify Omeon, and Omeon will immediately
thereafter undertake to modify the Development to correct any such nonconformity
with respect to the Specified Functionality Requirements, and will provide GVI
with a corrective action plan within ten (10) days of receipt of GVI’s notice of
nonconformity. The corrective action plan shall identify a reasonable
time period (the “Corrective
Period”) for
Omeon to complete the corrective measures and deliver the corrected Development
to GVI. Omeon will deliver and/or install any such corrected
Development, or configure or otherwise modify any applicable component of any
such Development, as applicable, and will further deliver to GVI any applicable
modifications to any source code, documentation, technical reference and/or user
manuals, in accordance with the delivery procedures, methods or other
requirements otherwise applicable to the initial delivery set forth in Section
4. In the event Omeon fails to correct any nonconformity of the PacketNVR
Software with respect to the Specified Functionality Requirements within the
Corrective Period, GVI will have the right to refuse to purchase the PacketNVR
Software, pursuant to this Agreement, and Omeon shall not be able to exercise
its right to compel GVI to buy. If and when such Acceptance Tests
establish, in GVI’s reasonable determination, that the Development conforms to
the Specified Functionality Requirements, GVI will so notify Omeon, and the date
upon which GVI so notifies Omeon will be considered the “Acceptance”
date hereunder. The Parties agree, for the purposes of this Section
9, to act in good faith at all times and to exercise reasonable commercial
efforts to notify the other Party promptly in the case of any non-conformance,
the implementation of any modification or corrective measure and/or Acceptance
or non-Acceptance of the PNVR Software.
5.
10. Representations,
Warranties.
10.1 Mutual Warranties. The Parties
represent and warrant that they have the full right and authority to enter
into this Agreement and perform their obligations hereunder.
10.2 Omeon Warranties. Omeon
warrants that (i) the Development will not infringe upon any copyright; (ii) the
Development will conform to the specifications provided in Exhibit B; (iii) the
Development will not contain any computer virus or other code intended to,
and/or capable of, disabling operation or full or partial functionality of the
Custom Software, including, without limitation, any “time bomb,” “Trojan horse,”
or “cancelbot,” as such terms are regularly understood in the software industry;
(iv) it will at all times comply with applicable laws, rules and regulations of
any governing authority have jurisdiction over the Parties and/or the
Development; (v) the Development does not contain any third party code subject
to fees or royalties, and (vi) only contains third party code that is (y)
authorized by a GVI officer (Vice President level or higher) and (z) in
compliance with all license requirements of third party providers; as described
in Exhibit F of this
Agreement; and (vii) the Development will not knowingly infringe upon any U.S.
patent as of Effective Date, trademark, right of publicity or privacy, or any
other proprietary right of any person, whether contractual, statutory or common
law. Furthermore, after Acceptance of the version 1.1 of the PNVR
Software (the “Software Warranty
Period”), Omeon warrants that it shall, within the response times agreed
upon by the Parties, provide all technical support, upgrades, updates,
enhancements and correct any errors, defects, malfunctions and/or bugs in all
accepted versions by GVI of the PNVR Software (i.e. 1.2, 1.3 and/or 2.0), which
prevent such PNVR Software from operating in accordance with all the
specifications, features and functions set forth in Exhibit B (the “Specified
Functionality Requirements”), under the warranty service levels set forth
in Exhibit E (the “Warranty Service
Levels”). As part of this Warranty, Omeon shall (a) provide to GVI
updates, modifications, enhancements and any source code, documentation,
technical reference and/or user manuals revised to reflect any updates to any
and all versions of the PNVR Software; and (b) support, maintain, adapt,
reconfigure, repair, replace, further develop or otherwise modify any and all
versions of the PacketNVR Software, as may be required to ensure continued and
ongoing conformity thereof with any Specified Functionality Requirements,
including, without limitations, all technical requirements and performance
standards requested by GVI. All materials, code, documentation, software,
technical reference and/or user manuals shall be delivered in a format agreed by
the Parties, in original form, and Omeon will retain no copies except as
required to provide the services under this Agreement.
6.
11. Indemnity. Omeon agrees to
indemnify Parent and each of its subsidiaries (including GVI), from any and all
damages, costs, claims, expenses or other liability (including reasonable
attorneys’ fees) arising from or relating to the breach or alleged breach by
Omeon of the representations and warranties set forth in Section
10.
12. Independent Contractor
Relationship. Except as otherwise set forth herein, Omeon is
an independent contractor, and nothing in this Agreement is intended to, or
should be construed to, create a partnership, agency, joint venture or
employment relationship. Omeon will not be entitled to any of the benefits which
GVI may make available to its employees, including, but not limited to, group
health or life insurance, profit-sharing or retirement benefits. The manner and
means by which Omeon and/or its contractors chooses to complete the Development
are in Omeon's sole discretion and control. In completing the Development, Omeon
agrees to provide its own equipment, tools and other materials at its own
expense. Omeon is not the agent of GVI and is not authorized to make
any representation, contract, or commitment on behalf of GVI. Omeon is solely
responsible for, and will timely file all tax returns and payments required to
be filed with, or made to, any federal, state or local tax authority with
respect to the performance of services and receipt of fees under this Agreement.
Omeon is solely responsible for, and must maintain adequate records of, expenses
incurred in the course of performing services under this Agreement. No part of
Omeon’s compensation will be subject to withholding by GVI for the payment of
any social security, federal, state or any other employee payroll
taxes.
13. Non-Exclusivity. GVI
recognizes that Omeon has existing business relationships and a continued
business interest in the field of software development and, more particularly,
video management system software development. The Definitive
Agreements are not intended to preclude Omeon from operating in this business
space, so long as such operation can proceed without the use of the PacketNVR
Software assigned to and owned by GVI.
14. Confidential
Information.
14.1 Ownership of Confidential
Information. The Parties acknowledge that during the
performance of this Agreement, each Party (“Receiving
Party”) will have access to certain of the other Party’s (“Disclosing
Party”) Confidential Information or Confidential Information of third
parties that the disclosing Party is required to maintain as
confidential. Both Parties agree that all items of Confidential
Information are proprietary to the disclosing Party or such third party, as
applicable, and shall remain the sole property of the disclosing Party or such
third party. Under the terms of this Agreement, “Confidential
Information” shall mean all written or oral information, disclosed by
either Party to the other, related to the operations of either Party or a third
party that has been identified as confidential or that by the nature of the
information or the circumstances surrounding disclosure ought reasonably to be
understood to be proprietary and/or confidential. Without limiting
the generality of the foregoing, the terms of this Agreement as well as the
PacketNVR Software shall be considered Confidential Information.
7.
14.2 Mutual Confidentiality Obligations.
Each Party agrees as follows: (i) to use the Confidential Information of
the Disclosing Party only for the purposes described herein; (ii) that it will
not reproduce the Confidential Information of the Disclosing Party other than as
permitted herein and will hold in confidence and protect such Confidential
Information from dissemination to, and use by, any third party other than in
accordance with paragraph (iv) below; (iii) that it will not create any
derivative work from Confidential Information of the Disclosing Party in
violation of this Agreement or the Disclosing Party’s copyrights; (iv) to
restrict access to the Confidential Information of the Disclosing Party to such
of the Receiving Party’s personnel, agents, and/or consultants and contractors,
if any, who have a need to have access and who have been advised of the
obligation of confidentiality and have agreed in writing to treat such
information in accordance with the terms of this Agreement; and (v) to return or
destroy all Confidential Information of the Disclosing Party in its possession
upon termination or expiration of this Agreement.
14.3 Confidentiality
Exceptions. Notwithstanding the foregoing, the provisions of
Sections 14.1 and 14.2 shall not apply to Confidential Information that (i) is
publicly available or in the public domain at the time disclosed; (ii) is or
becomes publicly available or enters the public domain through no fault of the
Receiving Party; (iii) is rightfully communicated to the Receiving Party by
persons not bound by confidentiality obligations with respect thereto; (iv) is
already in the Receiving Party’s possession free of any confidentiality
obligations with respect thereto at the time of disclosure; (v) is independently
developed by the Receiving Party without reference to the disclosing Party’s
confidential information; or (vi) is approved by the disclosing Party for
release or disclosure to the Receiving Party without
restriction. Notwithstanding the foregoing, each Party may disclose
Confidential Information to the limited extent required (x) in order to comply
with the order of a court or other governmental body, or as otherwise necessary
to comply with applicable law or rules of any exchange or market on which the
securities of a Party are listed, provided that the Party making the disclosure
pursuant to the order shall first have given notice to the other Party, if
legally permitted to do so, so that the disclosing Party may seek a protective
order or other appropriate remedy. The receiving Party shall furnish
only that portion of the Confidential Information that the receiving Party is
legally required to furnish and shall reasonably cooperate with the disclosing
Party in seeking assurances that confidential treatment will be accorded such
Confidential Information.
15. Term and
Termination.
15.1 Term. Except as otherwise set
forth in this Agreement, the initial term of this Agreement is for three (3)
year(s) from the Effective Date set forth above, unless earlier terminated as
provided in this Agreement. This Agreement may be renewed upon mutual written
agreement of the parties.
15.2 Termination. GVI may terminate
this Agreement immediately in its sole discretion upon Omeon’s material breach
of Section 14 of this Agreement. This Agreement terminates automatically upon
exercise of all the purchase options by GVI and/or the exercise of all rights to
compel purchase by Omeon, or any combination thereof.
8.
15.3 Effects of Termination. Upon
any expiration or termination of this Agreement, the licenses granted
under this Agreement shall immediately cease and terminate, and any development
sublicenses granted by Omeon to any third party shall likewise cease and
terminate. As such, Omeon (i) shall immediately discontinue all use of GVI’s
Confidential Information; (ii) shall delete any GVI Confidential Information
from Omeon’ computer storage or any other media, including, but not limited to,
online and off-line libraries; and (iii) shall return to GVI or, at GVI’s
option, destroy, all copies of GVI’s Confidential Information.
15.4 Survival. The rights and
obligations contained in Sections 7 (“Ownership of Work
Product”), 8 (“Artist’s, Moral,
and Other Rights”), 10 (“Representations
and Warranties”), 14 (“Confidential
Information”), and 16 (“Non-solicitation
of Employees”) will survive any termination or expiration of this
Agreement.
16. Non-solicitation of Employees and
Contractors. During the term of this Agreement and for one (1)
year following the last day on which Omeon performs services for GVI under this
Agreement, GVI will not, directly or indirectly, employ or offer employment to
any employee of Omeon or contractor provided by Omeon, or assist any related
corporation, affiliate or third party in doing so, without first contacting
Omeon and obtaining the Omeon’s express consent with respect to the specific
employee(s) in question.
17. General
Provisions.
17.1 Force Majeure. Except with
respect to payment obligations hereunder, if a Party is prevented or delayed in
performance of its obligations hereunder as a result of compliance with any
requirement of applicable law, war, terrorist attack, insurrection, riot, fires,
floods, epidemics, failure of public utilities or public transportation systems,
or other circumstances beyond such Party’s reasonable control, such failure or
delay shall not be deemed to constitute a material breach of this Agreement, but
such obligation shall remain in full force and effect, and shall be performed or
satisfied as soon as reasonably practicable after the termination of the
relevant circumstances causing such failure or delay, provided that if such
Party is prevented or delayed from performing for more than ninety (90) days,
the other Party may terminate this Agreement upon thirty (30) days’ written
notice.
17.2 Successors and Assigns. Omeon
may not subcontract or otherwise delegate its obligations under this Agreement
without GVI’s prior written consent. The Parties may not assign this Agreement
without prior written consent. Subject to the foregoing, this Agreement will be
for the benefit of GVI’s successors and assigns, and will be binding on Omeon’s
subcontractors or delegatees.
17.3 Notices. Any notice required
or permitted by this Agreement shall be in writing and shall be delivered as
follows with notice deemed given as indicated: (i) by overnight courier upon
written verification of receipt; or (ii) by telecopy or facsimile transmission
upon acknowledgment of receipt of electronic transmission. Notice shall be sent
to the addresses set forth above or such other address as either party may
specify in writing.
9.
17.4 Governing Law. THIS AGREEMENT
SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF. THE
PARTIES SPECIFICALLY EXCLUDE THE OPERATION OF THE UNITED NATIONS CONVENTION ON
THE INTERNATIONAL SALE OF GOODS. FOR PURPOSES OF ALL CLAIMS BROUGHT
UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN THE
BOROUGH OF MANHATTAN, NEW YORK.
17.5 Severability. Should any
provisions of this Agreement be held by a court of law to be illegal, invalid or
unenforceable, the legality, validity and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired
thereby.
17.6 Waiver. The waiver by a Party
of a breach of any provision of this Agreement by the other Party shall not
operate or be construed as a waiver of any other or subsequent breach by such
Party.
17.7 Injunctive Relief for Breach.
The Parties’ obligations under this Agreement are of a unique character that
gives them particular value; breach of any of such obligations will result in
irreparable and continuing damage to the other Party for which there will be no
adequate remedy at law; and, in the event of such breach, the affected Party
will be entitled to injunctive relief and/or a decree for specific performance,
and such other and further relief as may be proper (including monetary damages
if appropriate).
17.8 Publicity; Press Releases and
Marketing Material. Except as provided hereunder, neither party shall
publicly disclose the existence of this Agreement, any information concerning
this Agreement or the terms and conditions of this Agreement without the prior
written consent of the other parties. The Parties shall coordinate in good faith
the disclosure of this Agreement, including mutually agreeable press releases
and marketing materials. Neither party may issue a press release or other
marketing material that mentions the other party without the other party’s prior
written consent.
17.9 Entire Agreement. This
Agreement constitutes the entire agreement between the parties relating to this
subject matter and supersedes all prior or contemporaneous oral or written
agreements concerning such subject matter. The terms of this Agreement will
govern GVI’s option to purchase developed software and in the event of any
conflict between the terms of this Agreement and any Definitive Agreement, the
terms of this Agreement will control. This Agreement may only be changed by
mutual agreement of authorized representatives of the parties in writing and
duly executed.
17.10 Headings. The
headings in this Agreement are inserted merely for the purpose of convenience
and shall not affect the meaning or interpretation of this
Agreement.
17.11 Counterparts. This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one Agreement.
10.
[Signature
page follows]
11.
In Witness
Whereof, the parties have executed this Agreement as of the date first
written above.
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GVI
Security Video
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Omeon
Inc.
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Management
Solutions, LLC
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By:
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By:
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s/
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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|||
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Title: CFO
and COO
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Title:
CEO & President
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|||
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▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇.
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▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
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|||
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▇▇▇▇▇
▇▇▇
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▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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For
purposes of Section 4 above
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PacketNVR
LLP, PARTNERS:
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/s/ ▇▇▇ ▇▇▇▇▇▇
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||||
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▇▇▇
▇▇▇▇▇▇ – Managing Partner
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||||
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▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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||||
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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||||
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s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
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||||
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▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ – Managing Partner
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||||
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▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Parent
Guaranty:
Parent
hereby guarantees the payment obligations of GVI under the foregoing
Agreement.
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GVI
Security Solutions, Inc.
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By:
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: CFO
and COO
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||
12.
EXHIBIT A –Software
Development Schedule
EXHIBIT B –
Specifications
EXHIBIT C -
Assignment Of Intellectual Property Rights
EXHIBIT D -
Summary - Schedule Of Milestones And Potential Payments
EXHIBIT E - Warranty Service
Level Commitment
EXHIBIT F - Third Party
Software