EXCLUSIVE INTERNATIONAL MARKETING AGREEMENT
THIS EXCLUSIVE INTERNATIONAL MARKETING AGREEMENT (this "Agreement"),
effective as of April 19, 1996, is made by and among the DIGITAL RECORDERS,
INC., a North Carolina corporation, TWINVISION CORP. OF NORTH AMERICA, INC., a
North Carolina corporation and a wholly-owned subsidiary of Digital Recorders,
Inc., each with offices at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
Xxxxxxxx 00000, and XXXXXXXX XXXXXX INTERNATIONAL, INC. ("RTI"), a Texas
corporation with offices at 000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxx
00000. Digital Recorders, Inc. and TwinVision Corp. of North America, Inc. are
referred to collectively herein as the "Company."
WHEREAS, the Company is or will be engaged in the production of
products such as automatic voice-announce systems and passenger information
display systems for bus, rail and other public transit and transportation
vehicles, and certain related and similar products; and
WHEREAS, the Company intends to distribute some or all of its products
outside of North America through Transit-Media GmbH, a wholly-owned German
subsidiary of Digital Recorders, Inc. ("Transit-Media"), to the extent possible,
and it is not currently expected that Transit-Media will be able feasibly to
accomplish the international distribution of such products to the full extent
desired by the Company; and
WHEREAS, RTI and one of its principals, Xxxxx X. Xxxxxx, have extensive
experience and expertise in the public transportation automatic voice-announce
and information display technology markets; and
WHEREAS, RTI desires to receive from the Company, and the Company is
willing to grant to RTI, the exclusive right to market, sell and distribute the
existing and currently proposed products of the Company, and any additional
public transit or transportation rail or bus vehicle-related products developed
in the future by the Company with the assistance of RTI (collectively, the
"Products") in the Territory (as defined below) under the terms and conditions
set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
I. RIGHTS AND OBLIGATIONS
1.1 Grant of Rights. The Company hereby grants to RTI during the term
of this Agreement the exclusive and unlimited right and license, throughout the
Territory, to market, sell and distribute the Products, and to authorize others
to do so, in accordance with the terms of this Agreement. As used in this
Agreement, the term "Territory" means all of the nations and other political
subdivisions in Europe, Asia, Indonesia, South America and Australia and the
surrounding waters, now or hereafter in existence.
Except as contemplated in the first paragraph of Section 1.2, the
Company shall not market, sell or distribute any Products (whether finished or
unfinished) to, or permit any Products (whether finished or unfinished) to be
sold by, any person or entity other than RTI in the Territory, directly or
indirectly, during the term of this Agreement.
1.2 Certain Limitations. The parties acknowledge that some or all of
the Products may be distributed in a portion of the Territory, specifically, in
Singapore, Hong Kong and Europe (the "Transit-Media Territory"), by
Transit-Media and that RTI has agreed to provide certain services to
Transit-Media in connection therewith pursuant to a Management Services
Agreement among RTI, Digital Recorders, Inc. and Transit-Media dated as of
_________________, 1996 (the "Transit-Media Agreement"). RTI agrees that it will
not market, sell or distribute Products hereunder in direct competition with
Transit-Media in the portions of the Transit-Media Territory in which
Transit-Media, from time to time, is actively attempting to market and
distribute Products.
The parties acknowledge that the Company's right to sell, and to
authorize RTI to sell, certain of the Products (the "Lite Vision Products") is
derived from the Exclusive Distribution and License Agreement dated as of April
19, 1996 by and between RTI, Lite Vision Corporation and UTM, Inc. and the
related Exclusive Distribution and Sublicense Agreement dated as of June 1, 1996
(the "Sublicense") by and between RTI and TwinVision Corp. of North America,
Inc., in each case as amended and supplemented. RTI's rights hereunder with
respect to the Lite Vision Products are subject to the terms and conditions of
such agreements and are limited to the territory specified therein (to the
extent included in the Territory) and such additional territories in which the
Company may hereafter obtain the right to distribute (on an exclusive or
nonexclusive basis) the Lite Vision Products.
1.3 RTI's Responsibilities. RTI will use its reasonable best efforts to
promote the sale and distribution of the Products in the Territory. RTI will
advise the Company periodically of its activities in connection with sales of
Products, the demand for and reaction to Products and other matters relating to
the marketing of the Products in the Territory.
1.4 The Company's Responsibilities. The Company will use its reasonable
best efforts to provide Products to RTI and its sublicensees and customers in
the quantities requested by RTI in accordance with Section 2.2. Such Products
will be in finished form, unless RTI requests delivery of unfinished Products.
The Company will provide RTI with all sales leads and mailing lists obtained by
the Company relating to potential sales of Products in the Territory.
II. MARKETING AND DISTRIBUTION
2.1 Control of Marketing. RTI shall have sole authority and control of
the marketing and distribution of the Products in the Territory, including
without limitation the
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determination of the content and quantity of promotional materials, the terms of
the marketing plan and the establishment and modification of the terms and
conditions of sale (including selling price, discounts, credit for returns and
similar matters); PROVIDED, HOWEVER, that such terms and conditions shall be
discussed with, approved by and reasonably acceptable to the Company, and
PROVIDED FURTHER, that RTI shall not have the authority to obligate the Company
to perform any action or incur any expense that it has not agreed, in this
Agreement or otherwise, to perform or incur.
The rights granted in Section 1.1 entitle RTI to sell, distribute and
market the Products directly itself and/or indirectly through distributors,
wholesalers and agents. RTI may, in its sole discretion, negotiate and enter
into sales, distribution and marketing agreements relating to the Products with
third parties, for such periods of time, with such terms and conditions and
covering such geographic areas within the Territory as RTI may deem appropriate.
RTI shall be responsible for its own costs and expenses incurred in connection
with the marketing and promotion of the Products in the Territory; PROVIDED,
HOWEVER, that the Company shall be responsible for and shall pay all reasonable
commissions payable to distributors, wholesalers or other agents engaged by RTI
as contemplated herein, and the amounts of such commissions shall be in addition
to, and shall not be deducted from or otherwise reduce the commissions payable
to RTI pursuant to Section 3.1(a). RTI shall not be subject to any requirements
with respect to minimum or maximum advertising expenditures or other marketing
efforts.
Notwithstanding the foregoing, (i) the Company shall supply to RTI, at
no cost to RTI, such product descriptions, brochures and other promotional
materials relating to the Products as RTI may reasonably request, (ii) RTI shall
promote and sell the Products under such trade names and trademarks as may be
designated by the Company from time to time and (iii) RTI shall not use the
Company's trade names or trademarks except as may be authorized or approved by
the Company. RTI shall have no right, title or interest in the trade names or
trademarks of the Company.
2.2 Methods of Sale. RTI may, at its election and in its sole
discretion, effect each sale of Products in the Territory pursuant to either of
the following methods:
(a) Direct Sales. The Company agrees to sell Products directly to
customers within the Territory upon the receipt from RTI of purchase orders,
completed by RTI or such customers (but in all cases approved and countersigned
by RTI), or pursuant to contracts entered into by RTI with a customer. If the
terms and conditions of sale are not set forth in a contract between RTI and the
customer, the purchase order submitted to the Company in accordance with this
paragraph (a) shall set forth the quantities ordered, purchase price, delivery
location, method of delivery, freight terms and such other information as is
commercially necessary in connection therewith. Such sales, whether by purchase
order or contract, shall be made upon such terms and conditions as may be agreed
by RTI and the customer, subject to the limitations set forth in Section 2.1,
and provided that RTI may not obligate the Company to sell any Products for less
than the minimum price, if any, previously communicated by the Company to RTI.
Upon its receipt
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of a purchase order, the Company shall deliver the Products ordered to the
customer at the location and by the date specified therein, and shall invoice
the customer directly for the full amount of the specified purchase price.
(b) Purchase and Resale. RTI may purchase Products from the Company at
such prices and upon such terms and conditions as the parties may agree from
time to time. The Company agrees to sell Products to RTI in accordance with such
terms and conditions, upon receipt from RTI of purchase orders containing such
information as may be commercially necessary in connection therewith. The prices
and other terms and conditions upon which such Products may be resold by RTI in
the Territory shall be within RTI's sole and absolute discretion.
2.3 No Purchase Requirements. RTI shall not be obligated to purchase,
or obtain orders for the purchase of, any minimum number of Products pursuant to
Section 2.2. Notwithstanding the foregoing or the provisions of Section 1.1, if
RTI fails to make any sales in any individual nation or other political
subdivision within the Territory (each, a "Subterritory") within 24 months after
the date of this Agreement, the Company shall thereafter have the right to
terminate the exclusivity of RTI's rights and license with respect to such
Subterritory by giving 90 days' written notice to RTI; PROVIDED, HOWEVER, that
such termination of exclusivity shall not occur if RTI makes any sales of
Products in such Subterritory prior to the expiration of such 90-day notice
period; and PROVIDED FURTHER, that the Company shall negotiate in good faith
with RTI regarding the terms and conditions of an alternative exclusive
arrangement with respect to such Subterritory to take effect after the end of
such 90-day period if RTI does not make any sales in such Subterritory during
such period. Any termination of exclusivity with respect to any Subterritory
shall not diminish or affect in any way RTI's exclusive rights and license with
respect to the remainder of the Territory or any other Subterritory.
2.4 Planning. RTI will use its best efforts periodically to provide the
Company with estimates of the quantities of each Product that RTI reasonably
expects to order pursuant to Section 2.2(a) and (b), provided that RTI shall not
be required to achieve, or be subject to any liability for any failure to
achieve, such estimates. The Company shall promptly inform RTI whether it
reasonably expects to be able to meet its obligation to provide the Products in
such quantities.
III. COMPENSATION AND EXPENSES
3.1 Compensation.
(a) Direct Sales. The Company will pay to RTI a commission equal to a
percentage of the Company' Net Sales of the Products in the Territory pursuant
to Section 2.2(a) of this Agreement, determined in accordance with the following
schedule, based on Net Sales volume achieved in each calendar year:
First $2,000,000 Net Sales----------------rate of 3%
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Next $3,000,000 Net Sales----------------rate of 2%
Net Sales exceeding $5,000,000----------rate of 1%
Payment of this commission will be due by the 15th day of each month,
without further action by RTI to prompt or collect same, with respect to Net
Sales received by the Company or any affiliate in the preceding month, and will
continue, following termination of this Agreement, until commission has been
paid on all contracts and purchase orders, and contracts and purchase orders
resulting from proposals, dated prior to the date of termination of this
Agreement.
For purposes of this Agreement, "Net Sales" means gross revenues
derived by the Company and its affiliates from direct or indirect sales
(excluding sales to RTI pursuant to Section 2.2(b)), as contracted or invoiced,
less returns, allowances and other adjustments determined in accordance with
generally accepted accounting principles, consistently applied, which is the
amount the Company or an affiliate enters in its records as the amount due and
payable by a customer. Notwithstanding the foregoing, sales commissions paid or
payable to RTI or any other person or entity shall not be deducted from gross
revenues for purposes of calculating Net Sales.
The Company shall maintain records in sufficient detail for purposes of
determining the amounts payable to RTI. The Company shall provide to RTI with
each payment a written accounting that sets forth, in such detail as is
reasonably satisfactory to RTI, the manner in which the payment was calculated.
RTI, or RTI's agent, shall have the right to inspect the Company's records for
the limited purpose of verifying calculation of the amounts payable, subject to
such restrictions as the Company may reasonably impose to protect the
confidentiality of those records. Such inspections shall be made during
reasonable business hours as may be set by the Company.
Notwithstanding the foregoing, the parties acknowledge and agree that
RTI shall not be entitled to any commissions under this Agreement with respect
to sales of Products by Transit-Media in the Transit-Media Territory, and the
revenues from such sales shall not be included in Net Sales, as defined above,
or considered for purposes of determining whether the sales levels specified in
the table above have been reached. Nothing in this Agreement, however, shall
diminish or affect RTI's right to receive payments from the Company or
Transit-Media under the Transit-Media Agreement with respect to such sales.
(b) Purchase and Resale. RTI shall retain any and all amounts it
receives in connection with the marketing, sale and distribution of Products it
purchases from the Company and resells as contemplated by Section 2.2(b), and
the Company shall not be entitled to any payment in connection therewith other
than the purchase price paid by RTI pursuant to Section 2.2(b).
3.2 Expenses. Except as otherwise expressly provided in this Agreement
or any Attachment hereto, each party shall be responsible for its own expenses
incurred in
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connection with the performance of its obligations and the exercise
of its rights under this Agreement.
IV. DOCUMENTATION AND SUPPORT
4.1 Documentation. The Company shall provide to RTI, its sublicensees
and each customer who purchases any Product pursuant to this Agreement copies of
all Documentation and Specifications relating to the applicable Product.
"Documentation" means user guides, operating manuals, specifications, test data,
bills of materials, engineering drawings, sketches, education materials and
other information relating to the Product, whether in print, magnetic,
electronic or video format, in existence at the time any Product is delivered to
RTI or its sublicensees or customers. "Specifications" means the functional,
performance, operational, compatibility and other specifications or
characteristics of the Product, included in the Documentation or otherwise
provided by the Company to RTI, its sublicensees or any other purchaser of the
Product. The Company has provided to RTI copies of all Documentation and
Specifications for the Products in existence as of the date of this Agreement.
The Company shall provide all updates, revisions and supplements to the
Documentation and Specifications, when produced, to RTI, its sublicensees and
each customer who purchases any Product pursuant to this Agreement.
4.2 Maintenance and Support. The Company shall provide or make
available to each customer who purchases any Product pursuant to this Agreement
the same maintenance and support services that the Company provides or makes
available generally to other purchasers of the Products, including correction of
errors, updates, non-custom enhancements and telephone support. RTI and its
agents and representatives shall have no obligation to provide any customer or
other party any maintenance or support services with respect to any Product
except as RTI may determine in its sole discretion.
4.3 Corrections and Enhancements. The Company shall promptly correct,
without charge, all errors in the design of any Product. The Company
acknowledges that all enhancements of any Product are subject to the rights and
license granted to RTI, and the Company shall deliver all enhancements without
any charge other than the purchase price paid in accordance with Section 2.2. An
"enhancement" is any modification, improvement, change, addition or upgrade made
to, or any new or alternative version of, a Product after the original versions
are supplied to RTI or its sublicensees or customers, and shall include any new
device, equipment, component, system or technology that is or may be a
replacement or substitute for, a derivative of or a complement to the Product.
4.4 Discontinuance of Products. The Company shall provide RTI at least
12 months' advance written notice of its intent to discontinue any Product. The
Company shall provide to RTI such information and training as may be necessary
to permit RTI to maintain and support such Product, or to authorize others to do
so. Notwithstanding the preceding sentence, RTI shall have no obligation to
provide to any customer or other
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party any demonstration, maintenance or support services with respect to any
Product, including any discontinued Product.
V. REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of the Company. Digital Recorders,
Inc. and TwinVision Corp. of North America, Inc. jointly and severally
represent and warrant to RTI that:
(a) Digital Recorders, Inc. and TwinVision Corp. of North America, Inc.
are each duly incorporated pursuant to the laws of the State of North Carolina
and each is validly existing and in good standing under such laws and has full
power and authority to enter into and perform its obligations under this
Agreement. The officer whose name appears on the signature page of this
Agreement has full power and authority to execute and deliver this Agreement on
behalf of each of such corporations and to cause each of them to perform its
obligations under this Agreement.
(b) The Company has, and upon execution and delivery of the Agreement
RTI will have, all rights or licenses necessary to permit it to market, sell and
distribute the Products as contemplated by this Agreement, and to authorize
others to do so, without liability to any third party. Neither the Products nor
the sale thereof as contemplated herein will violate any law or infringe upon or
violate the rights of any person or entity (including but not limited to
copyright, patent or other intellectual property rights).
(c) All Products sold to RTI and its customers and sublicensees
pursuant to this Agreement will be delivered in good and marketable condition
and will conform to all Specifications for such Products previously delivered to
and accepted by RTI, which Specifications are subject to change from time to
time by agreement of the parties. RTI and its customers and sublicensees shall
have the right to return, at the Company's expense, any and all Products that
are not in such condition or that do not conform to such Specifications at the
time of delivery.
(d) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT THE COMPANY MAKES
NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
5.2 Representations and Warranties of RTI. RTI represents and warrants
to the Company that RTI is a corporation duly organized, validly existing and in
good standing under the laws of the State of Texas and has full power and
authority to enter into and perform its obligations under this Agreement. The
officer whose name appears on the signature page of this Agreement has full
power and authority to execute and deliver this Agreement on behalf of RTI and
to cause RTI to perform its obligations under this Agreement.
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VI. INDEMNITY
6.1 Indemnification by the Company. Digital Recorders, Inc. and
TwinVision Corp. of North America, Inc., jointly and severally, shall indemnify,
defend and hold harmless RTI from and against any and all damages, liabilities,
costs and expenses, including reasonable attorneys fees (collectively,
"Liabilities"), that arise from any claim, lawsuit or other action (a) arising
out of or resulting from the breach by the Company of any of its
representations, warranties, agreements or covenants contained in this
Agreement, or (b) relating to the infringement of any patent, copyright or other
intellectual property right arising out of or resulting from the production,
marketing or commercial exploitation of the Products. RTI shall notify the
Company immediately of any such claims and Liabilities, shall permit the Company
to have exclusive control of the defense and/or settlement of such claims,
including without limitation the selection of defense counsel, and shall
cooperate with the Company in the defense and/or settlement of such claim.
6.2 Indemnification by RTI. RTI shall indemnify, defend and hold
harmless the Company from and against any and all Liabilities that arise from
any claim, lawsuit or other action arising out of or resulting from the breach
by RTI of any of its representations, warranties, agreements or covenants
contained in this Agreement. The Company shall notify RTI immediately of any
such claims and Liabilities, shall permit RTI to have exclusive control of the
defense and/or settlement of such claims, including without limitation the
selection of defense counsel, and shall cooperate with RTI in the defense and/or
settlement of such claim.
VII. TERM AND TERMINATION
7.1 Term and Termination. This Agreement may be terminated as
follows:
(a) By mutual agreement of all parties at any time;
(b) By either party upon 30 days' written notice to the other party if
the other party commits any material default or breach of any of its agreements,
obligations, representations or warranties contained in this Agreement; or
(c) By either party upon 30 days' written notice to the other party if
the other party (which, in the case of the Company, shall mean Digital
Recorders, Inc. or TwinVision Corp. of North America, Inc.) is declared bankrupt
or becomes insolvent or voluntarily institutes a bankruptcy proceeding under the
Bankruptcy Code, or a receiver is appointed for the assets of such other party,
or such other party makes a general assignment for the benefit of creditors or
admits in writing its inability to pay its debts as they become due;
PROVIDED, HOWEVER, that this Agreement will not be terminated as provided in
paragraph (b) or (c) of this Section 7.1 if, within such 30-day period, such
other party
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cures such breach, default, act or circumstance giving rise to the
right of termination to the reasonable satisfaction of the party delivering the
notice.
The term of this Agreement shall be a period of three years commencing
on the date of its execution by RTI and the Company. This Agreement shall
automatically be renewed for an additional three-year term at the end of the
initial and each successive term, unless either party shall have given notice to
the other party that it elects not to renew this Agreement prior to the end of
the second year of the initial or any subsequent three-year term.
7.2 Effect of Termination. The termination of this Agreement shall not
affect either party's obligation to pay any amount due and owing the other party
under the provisions of this Agreement as of the date of termination. The
Company shall deliver all Products that are subject to, and otherwise fully
perform, all contracts and purchase orders, and contracts and purchase orders
resulting from all proposals, dated prior to the date of termination of this
Agreement, and RTI shall be entitled to receive the commissions specified in
Section 3.1(a) with respect to such Products. The termination of this Agreement
shall not affect any rights or obligations of any party under any provision of
this Agreement that is intended to survive such termination.
7.3 Sell-Off Rights. Without limiting Section 7.2, upon termination of
this Agreement, RTI and its sublicensees and distributors shall have the right
to sell off their respective remaining inventories of Products, and RTI shall be
entitled to receive payment with respect to such sales in accordance with
Section 3.1(a); PROVIDED, HOWEVER, that RTI shall offer the Company the
opportunity to purchase such Products, and the Company shall have the right of
first refusal to purchase any such Product, at a price equal to the price
offered to RTI by a third party, within a period of 10 business days after RTI
has given notice to the Company of its intent to sell the Product.
VIII. MISCELLANEOUS
8.1 Relationship of Parties. It is understood by the parties that RTI
is an independent contractor with respect to the Company, and not an employee,
partner or joint venturer of Digital Recorders, Inc. or TwinVision Corp. of
North America, Inc. RTI may refer to itself as the exclusive, authorized dealer,
distributor or sales agent of the Company in the Territory.
Each agreement, obligation, indemnity, representation and warranty of
the Company herein shall be a joint and several agreement, obligation,
indemnity, representation and warranty of Digital Recorders, Inc. and TwinVision
Corp. of North America, Inc., and Digital Recorders, Inc. and TwinVision Corp.
of North America, Inc. each shall have the authority to act on behalf of and to
bind the other in all matters relating to this Agreement and the transactions
contemplated hereby. RTI shall be entitled to rely on any notice, instruction or
other communication received from either of such corporations as having been
duly authorized by both. Any reference in this
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Agreement to the Company, or to a "party" or any similar reference, shall, in
the case of the Company, be deemed to include Digital Recorders, Inc. and
TwinVision Corp. of North America, Inc., jointly and severally, unless the
context clearly requires otherwise. Any breach of this Agreement by Digital
Recorders, Inc. or TwinVision Corp. of North America, Inc. shall constitute a
breach by both.
8.2 Notices. All notices required or permitted under this Agreement
shall be in writing and shall be sent by telecopy or by a courier service that
guarantees overnight delivery, addressed as follows:
If to the Company:
Digital Recorders, Inc.
X. Xxxxxxxx X. Xxxxxxxx, Chairman and CEO
0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, Xxxxx Xxxxxxxx 00000
Fax no.: 000-000-0000
If to RTI:
Xxxxxxxx Xxxxxx International, Inc.
Xxxxx X. Xxxxxx, Principal
000 Xxxx Xxxxxxxx Xxxx, Xxxxx 000, Xxx 00
Xxxxxxxxxx, Xxxxx 00000
Fax no.: 000-000-0000
Such address may be changed from time to time by either party by
providing written notice to the other in the manner set forth above. The date of
delivery to such a courier service or of telecopying shall be deemed to be the
effective date on which notice was given, provided that all telecopies shall
contain a provision requiring confirmation of receipt and shall not be effective
unless confirmation of receipt is received within 24 hours of transmission.
Except to the extent expressly stated otherwise in this Agreement,
notice to Digital Recorders, Inc. at such address shall be deemed to be notice
to both Digital Recorders, Inc. and TwinVision Corp. of North America, Inc. and
shall satisfy any obligation hereunder of RTI to provide notice to the Company.
8.3 Entire Agreement. This Agreement contains the entire agreement of
the parties related to the subject matter hereof. This Agreement supersedes any
prior written or oral agreements between the parties with respect to such
subject matter.
8.4 Amendment. This Agreement may be modified or amended only by means
of a written instrument signed by both parties.
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8.5 Severability. If any provision of this Agreement shall be held to
be invalid or unenforceable for any reason, the remaining provisions shall
continue to be valid and enforceable. If a court finds that any provision of
this Agreement is invalid or unenforceable, but that by limiting such provision
it would become valid and enforceable, then such provision shall be deemed to be
written, construed and enforced as so limited.
8.6 No Waiver. The failure of either party to enforce any provision of
this Agreement shall not be construed as a waiver or limitation of that party's
right to subsequently enforce and compel strict compliance with such provision
or any other provision of this Agreement.
8.7 Applicable Law. This Agreement shall be governed by the laws of the
State of Texas. Exclusive venue and jurisdiction of any dispute or suit arising
hereunder shall lie with the courts of the State of Texas located in Dallas
County, Texas, or the federal courts located in the Northern District of Texas
and, without limiting the foregoing, such courts shall have authority to enforce
the equitable relief provisions of Section 8.8 and the dispute resolution
provisions of Section 8.9.
8.8 Equitable Relief. The Company acknowledges that a breach by the
Company of this Agreement or a failure by the Company to perform any of its
obligations hereunder may cause irreparable harm and injury to RTI for which
damages in an action at law would be inadequate and therefore agrees that RTI
will be entitled to an injunction or other equitable relief to prevent or remedy
any such breach or failure of performance by the Company. Such relief shall be
in addition to any other rights or remedies that RTI may have.
8.9 Dispute Resolution. The parties agree to engage in binding
arbitration for resolution of all disputes arising out of or relating to this
Agreement or the performance or failure of performance hereunder. Such
arbitration shall be conducted in Dallas County, Texas pursuant to the expedited
procedures of and in accordance with the rules of the American Arbitration
Association. The arbitrator shall be mutually selected by the parties or, if
they cannot agree on such selection, the Company and RTI each shall designate
one arbitrator to represent it in the selection process and the two arbitrators
shall appoint a third arbitrator who shall arbitrate such dispute. Such
selection process shall be completed within 30 days from the date on which
arbitration is requested by either party. The arbitrator selected shall, if
reasonably possible, be one who is familiar with the commercial and
manufacturing practices of the public transportation and transit passenger
information display industry. The arbitrator's award shall be final and binding
on the parties hereto and enforceable by either party in any court of competent
jurisdiction. The parties agree that each party will bear its own costs of such
arbitration (including attorneys' fees and expenses), regardless of the decision
rendered by the arbitrator.
8.10 Binding Effect and Assignment. This Agreement shall be binding
upon each party and its respective successors and permitted assigns. This
Agreement may not be
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assigned or transferred by either party without the prior written consent of the
other, subject to the right of RTI to sublicense or enter into other contracts
or agreements relating to the marketing, sale or distribution of the Products as
contemplated herein.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date set forth in
the first paragraph of this Agreement.
DIGITAL RECORDERS, INC.
By:
X. Xxxxxxxx X. Xxxxxxxx
Chairman and CEO
TWINVISION CORP. OF
NORTH AMERICA, INC.
By:
X. Xxxxxxxx X. Xxxxxxxx
Chairman
XXXXXXXX XXXXXX
INTERNATIONAL, INC.
By:
Xxxxx X. Xxxxxx
Principal
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