Exhibit 10.8
TRADEMARK LICENSE AGREEMENT
AGREEMENT made this date by and between uniView Technologies
Corporation, a Texas corporation, whose principal place of business is
located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "uniView") and Avmark, Inc., whose principal place of
business is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "Avmark").
WHEREAS uniView represents and warrants that it is the exclusive owner
of all rights in and to the valuable trademark "CurtisMathes" (hereinafter
referred to as the "▇▇▇▇"), in relation to television sets and related
products, and further represents that, within the past three years, consumer
electronics products have been distributed bearing the ▇▇▇▇ throughout the
United States of America, and that its rights are valid and subsisting; and
WHEREAS Avmark desires to use the ▇▇▇▇ as hereinafter described.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is hereby agreed:
1. GRANT OF LICENSE. (a) Grant. For the use, the Term, in the
Territory, and on the terms and subject to the conditions hereinafter set
forth, uniView hereby grants to Avmark a license to use the ▇▇▇▇ ("License")
as provided herein solely with respect to Licensed Products, as defined
hereinbelow. Avmark may manufacture, distribute, market, and sell Licensed
Products and shall use the ▇▇▇▇ only on Licensed Products manufactured in
accordance with the specifications, directions and processes approved in
writing by uniView.
(b) Exclusivity. The License is exclusive for Licensed Products only
and, so long as Avmark duly performs its obligations hereunder, uniView
shall not itself use or grant others the right or license to use the ▇▇▇▇
for the above purposes in the Territory hereinafter set forth. Nothing in
this Agreement shall be construed to prevent uniView from granting any other
licenses for the use of the ▇▇▇▇ in connection with products not covered by
this Agreement, or from otherwise utilizing the ▇▇▇▇ in any manner
whatsoever.
(c) Web Site. Avmark shall have a further right and license during
the term of this Agreement to use the Web site and domain name
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with services offered by Avmark to
consumers relating to this Agreement. uniView or its designee shall
develop, maintain and host the Web site pursuant to a separate Web Hosting
Agreement signed by the parties. Avmark shall pay to uniView or its
designee its most favored rate to develop, maintain and host the Web site on
its server. Avmark shall obtain uniView's prior written approval of all
content published on the Web site.
(d) No Other Grant. Avmark is granted no other right, title, or
license to the ▇▇▇▇ or any other uniView trademark.
2. LICENSED PRODUCTS. (a) "Licensed Products" means the following
traditional consumer electronics products, either stand alone or in
combination: (1) 5" through 36" direct view television sets; (2) projection
television sets; (3) digital television sets; (4) Video Cassette Recorders
(VCR's); (5) Digital Video Disc (DVD) units; (6) all categories of audio
products, including portable audio, home audio, and digital audio; and (7)
telephones and telephone answering devices.
(b) uniView hereby specifically excludes from this Agreement (1) set
top box (STB) units which connect to the Internet and (2) computers; either
or both of which may also contain many of the same functions and features as
those offered by the foregoing Licensed Products.
3. TERRITORY. The License extends only to the United States of America
and Canada (hereinafter referred to as the "Territory"). Avmark agrees that
it will not make or authorize any direct or indirect use of the ▇▇▇▇ in any
other area, and that it will not knowingly sell Licensed Products to persons
who intend or are likely to resell or redistribute them in any other area.
4. TERM. The initial term of this License shall commence on July 1,
2000, and shall end on June 30, 2005, unless sooner terminated in accordance
with the provisions hereof. At the end of this term, the License may
thereafter be renewed by mutual agreement of the parties for successive
terms through June 2020.
5. ROYALTY. (a) Rate. Avmark agrees to pay to uniView as royalty a sum
equal to one percent (1%) of the net cost of the Licensed Products sold by
Avmark or any of its affiliated, associated or subsidiary companies to Kmart
Corporation or similar vendor ("Vendor"), as per Vendor's invoice, prior to
loads for freight, advertising or royalties. No other costs incurred in the
manufacture, sale, distribution or exploitation of the Licensed Products
shall be deductible from the calculation of any royalty.
(b) Minimum Royalty. Avmark further agrees to pay to uniView, as a
minimum guarantee against royalties to be paid to uniView during each year
of the contract term, the following minimum annual royalties:
July 1, 2000 through June 30, 2001 $500,000
July 1, 2001 through June 30, 2002 $750,000
July 1, 2002 through June 30, 2003 $1 million
July 1, 2003 through June 30, 2004 $1.25 million
July 1, 2004 through June 30, 2005 $1.5 million
The minimum royalty shall be paid annually as it accrues, within sixty
(60) days after the close of each contract year during the term of this
Agreement or any extension hereof. Payment shall accompany the statements
furnished as required below.
(c) Royalty Payments. Royalties shall be due within twenty (20) days
after the close of each contract quarter in which earned, during the term of
this Agreement or any extension hereof, and payment shall accompany the
statements furnished as required below. The receipt or acceptance by
uniView of any of the statements furnished pursuant to this Agreement or of
any royalties paid hereunder (or the cashing of any royalty checks paid
hereunder) shall not preclude uniView from verifying the correctness thereof
at any time, and in the event that any inconsistencies or mistakes are
discovered in such statements or payments, they shall immediately be
rectified and the appropriate payment made by Avmark. Domestic taxes
payable in the Territory shall be payable by Avmark.
(d) Direct Payment. Subject to obtaining uniView's prior written
consent, not to be unreasonably withheld, Avmark shall have the right to
structure one or more of its deals with its Vendors or manufacturers so that
the trademark royalty, or a sum in lieu of royalty, is paid directly to
uniView. In that event, uniView shall receive and retain only those sums
reflected in this agreement as being due to uniView, and shall promptly
remit to Avmark all sums in excess thereof. In such event, uniView agrees
to provide to Avmark a copy of all statements which accompanied any such
payments received by uniView.
(e) Royalty Rebates. uniView agrees to rebate to Avmark fifteen
percent (15%) of the amount of royalties paid to uniView by Avmark in excess
of Two and one-half million Dollars ($2,500,000) for any contract year
during the term of this License.
(f) Royalty Abatement. uniView agrees that Avmark shall be liable
only for those royalties that are actually paid to Avmark by a Vendor and
Avmark shall be relieved of its payment obligation to uniView with respect
to royalties that are not paid by the Vendor after commercially reasonable
efforts by Avmark to collect the same.
(g) Periodic Statements. (i) Within twenty (20) days after the
close of each contract quarter during the term of this Agreement or any
extension hereof, Avmark shall furnish to uniView, in a form reasonably
acceptable to uniView, a complete and accurate statement certified to be
accurate by Avmark showing the model number, quantity shipped, invoice cost
to Vendor, and Vendor PO number for all Licensed Products distributed and/or
sold by Avmark during the preceding contract quarter. Such statements shall
be furnished to uniView whether or not any of the Licensed Products have
been sold during the preceding contract quarter.
(ii) Within sixty (60) days after the end of each year of this
Agreement or any extension hereof, Avmark shall furnish to uniView, in a
form reasonably acceptable to uniView, a complete and accurate statement
certified to be accurate by Avmark showing the model number, quantity
shipped, invoice cost to Vendor, and Vendor PO number for all Licensed
Products distributed and/or sold by Avmark during the preceding contract
year, as shown on Avmark's business books and records. If such statement
discloses any underpayment of royalties for that year, including minimum
royalties, Avmark shall pay the amount of the underpayment to uniView at the
time of the statement required under this paragraph. Any overpayment shall
be credited by uniView to Avmark's account.
(iii) All books and records maintained by Avmark relating to
operations concerning this License shall be available for inspection by
uniView or any of its designated representatives at any reasonable, mutually
agreeable time and Avmark shall cooperate with any person making such
examination on behalf of uniView. All books of account and records shall be
kept available for at least two (2) years after the termination of this
License. Such inspection shall be at uniView's expense unless a discrepancy
in the amount of five percent (5%) or more is discovered, in which event
Avmark shall bear such expense, including without limitation accounting,
auditing and legal fees and costs.
6. TRADEMARK USAGE. (a) Approval by uniView. Avmark shall use the
▇▇▇▇ in accordance with all applicable Federal, State and local laws
pertaining to the use of trademarks in the Territory and shall provide
uniView with artwork of all proposed advertising and promotional materials
containing the ▇▇▇▇, including without limitation artwork for tags, labels,
imprints, cartons, containers, packaging and wrapping material, as well as
artwork of all advertising, promotion and display material which depicts or
portrays the ▇▇▇▇, and shall use the ▇▇▇▇ only as may be approved in writing
by uniView. uniView shall have the right to disapprove any materials
submitted if it determines, in the exercise of its good faith judgment, that
the materials in question would impair the value and goodwill associated
with the ▇▇▇▇ by reason of (i) noncompliance with uniView's trademark
guidelines; (ii) use of materials that are unethical, immoral, or offensive
to good taste; (iii) failure to carry proper copyright or trademark notices;
or (iv) any other reasonable cause. uniView agrees to notify Avmark in
writing of its approval of any materials submitted under this subsection
within ten (10) calendar days after uniView's confirmed receipt of the
materials, and agrees, in the case of a disapproval, to notify Avmark in
writing of the reasons for disapproval. uniView's failure to respond within
that 10-day period shall be deemed approval of the submission in question.
(b) Modification of Usage. Upon disapproval and notice from uniView
specifying the non-conformance of any materials submitted under this
subsection, Avmark shall promptly modify any usage and any material that
does not conform to the foregoing provisions of this Agreement. Avmark
shall notify its distributors and customers of any such non-conformance as
to materials or products already distributed, as may be reasonably requested
by uniView.
7. PROTECTION OF TRADEMARK AND LOGOS. (a) Sole owner. uniView is the
sole owner of the ▇▇▇▇ and all goodwill associated therewith. Avmark's use
of the ▇▇▇▇ inures solely to the benefit of uniView and Avmark shall not at
any time acquire any rights in the ▇▇▇▇ by virtue of its use of the ▇▇▇▇.
Avmark shall not do anything that might harm the reputation or goodwill of
the ▇▇▇▇. Avmark shall not challenge uniView's rights in or attempt to
register the ▇▇▇▇, or any other name or ▇▇▇▇ owned by uniView or
substantially similar thereto. Avmark shall take no action inconsistent
with uniView's rights in the ▇▇▇▇.
(b) Assignment of Rights. Avmark agrees to cooperate fully and in
good faith with uniView for the purpose of securing and preserving uniView's
rights in and to the ▇▇▇▇. Nothing contained in this Agreement shall be
construed as an assignment or grant to Avmark of any right, title or
interest in or to the ▇▇▇▇, it being understood that all rights relating
thereto are reserved by uniView, except for the License hereunder to Avmark
of the right to use the ▇▇▇▇ only as specifically and expressly provided in
this Agreement. If at any time Avmark acquires any rights in, or
registrations or applications for, the ▇▇▇▇ by operation of law or
otherwise, it will immediately upon request by uniView and at no expense to
uniView, assign such rights, registrations, or applications to uniView,
along with any and all associated goodwill, and Avmark hereby assigns and
transfers to uniView all ▇▇▇▇ and trademark rights created by uses of the
▇▇▇▇, together with the goodwill of the business in connection with which
the ▇▇▇▇ are used. Avmark hereby agrees that at the termination or
expiration of this Agreement, including any extension hereof, Avmark will be
deemed to have assigned, transferred and conveyed to uniView any rights,
equities, good will, titles or other rights in and to the ▇▇▇▇ which may
have been obtained by Avmark or which may have vested in Avmark in pursuance
of any endeavors covered hereby, and that Avmark will execute any
instruments requested by uniView to accomplish or confirm the foregoing.
Any such assignment, transfer or conveyance shall be without other
consideration than the mutual covenants and considerations of this
Agreement.
(c) Notice of Adverse Uses. Avmark shall give prompt notice to
uniView of any adverse uses of marks confusingly similar to the ▇▇▇▇ in the
Territory and, except as hereinafter provided, agrees to take no action of
any kind with respect thereto except by the express written authorization of
uniView. uniView may at its option commence, prosecute or defend any action
or claim concerning the ▇▇▇▇. uniView shall have the right to control any
such litigation. Should uniView not take reasonably necessary action within
a reasonable time, to protect the ▇▇▇▇ from such adverse uses within the
Territory during the term of this License, then Avmark shall have the right,
after giving uniView reasonable notice, to institute a lawsuit in its own
name and on its own behalf, to enjoin such adverse use, providing that
Avmark first provides uniView with reasonable security to protect uniView
from possible financial liability.
(d) Records Relative to ▇▇▇▇ Uses. Avmark shall keep appropriate
records (including copies of pertinent invoices and correspondence) relating
to the dates when each of the Licensed Products is first placed on sale or
sold in the Territory, and the dates of first use of the ▇▇▇▇ on the
Licensed Products and advertising materials. At uniView's request, Avmark
shall supply uniView with samples of the trademark usages in question and
other information that will enable uniView to renew, or to complete and
obtain trademark or design applications or registrations, or to evaluate or
oppose any trademark or design applications, registrations, or uses of third
parties.
(e) Registered User Laws. As to those countries requiring
applications to register Avmark as a registered user of the ▇▇▇▇ used on or
in connection with the Licensed Products, or requiring the recordation of
this Agreement, Avmark agrees to execute and deliver to the proper
authorities all necessary documents for those purposes and to furnish
uniView with a copy of all such documents so filed.
8. INDEMNIFICATION BY AVMARK AND PRODUCT LIABILITY INSURANCE. uniView
assumes no liability to Avmark or third parties with respect to the
performance of the Licensed Products manufactured or sold by Avmark under
the ▇▇▇▇. Avmark hereby indemnifies uniView and undertakes to defend itself
and uniView against and hold uniView harmless from any claims, suits, loss
and damage arising out of any allegedly unauthorized use of any trademark,
patent, process, idea, method or device by Avmark in connection with the
Licensed Products or any other alleged action by Avmark, including, without
limitation, any allegation that Avmark had actual or apparent authority from
uniView for its actions as an agent of "▇▇▇▇▇▇ ▇▇▇▇▇▇" or uniView, any
alleged act of unfair competition, and also from any claims, suits, loss and
damage arising out of alleged defects in the Licensed Products. Avmark
agrees that it will obtain, at its own expense, product liability insurance
in a mutually agreed amount from a recognized insurance company reasonably
acceptable to uniView, providing adequate protection for uniView (as well as
for Avmark) against any claims, suits, loss or damage arising out of any
alleged defects in the Licensed Products. As proof of such insurance, a
fully paid certificate of insurance naming uniView as an insured party will
be submitted to uniView by Avmark for uniView's prior approval before any
Licensed Product is distributed or sold, and at the latest within thirty
(30) days after the date of this Agreement. Any proposed change in
certificates of insurance shall be submitted to uniView for its prior
approval. uniView shall be entitled to a copy of the then prevailing
certificate of insurance, which shall be furnished to uniView by Avmark.
9. QUALITY CONTROL. (a) Quality. Avmark agrees that the Licensed
Products shall be manufactured, sold and distributed in accordance with all
applicable Federal, State and local laws, including but not limited to
product safety and labeling, and that the same shall not reflect adversely
upon uniView or the ▇▇▇▇. All Licensed Products shall be manufactured in
accordance with specifications, directions, and processes approved in
writing by uniView from time to time. uniView agrees to notify Avmark in
writing of its approval of any materials submitted under this subsection
within ten (10) calendar days after uniView's confirmed receipt of the
materials, and agrees, in the case of a disapproval, to notify Avmark in
writing of the reasons for disapproval. uniView's failure to respond within
that 10-day period shall be deemed approval of the submission in question.
(b) Manufacturer's Records of Quality Assurance. Avmark shall, upon
request, furnish to uniView manufacturing quality assurance records
evidencing compliance with the sampling procedures of MIL STD 105E Level II,
or a comparable standard generally recognized in the industry, and shall
report to uniView the results thereof pertaining to the quality of the
Licensed Products being manufactured including, without limitation, product
life tests, failure ratios, and reject rates.
(c) Inspection of Manufacturing Facilities. Avmark agrees to allow or
facilitate uniView's authorized agents, at any and all times upon reasonable
notice and during regular business hours, to enter the premises where
Licensed Products are being manufactured to inspect the same.
10. WARRANTY AND SERVICING. uniView and "▇▇▇▇▇▇ ▇▇▇▇▇▇" shall have no
obligation to provide any warranty or servicing for any Licensed Product.
Avmark agrees to clearly notify its customers and end-users of the Licensed
Products of the name and address of the warranty and servicing provider for
the Licensed Products.
11. ADVERTISING AND DISTRIBUTION. Avmark agrees to use its best efforts to
advertise and promote the Licensed Products during the term of this
Agreement. Avmark agrees that during the term of this License it will
diligently and continuously manufacture, distribute and sell the Licensed
Products and that it will make and maintain adequate arrangement for their
distribution.
12. TERMINATION. (a) Material Default. Should Avmark fail to
comply with any material provision of this Agreement, uniView may terminate
this License upon thirty (30) days' written notice to Avmark, provided that
Avmark has not corrected such default during the notice period. Provided
further, that should such default occur as a sole result of a Vendor's
inability or refusal to pay royalties, then, after commercially reasonable
efforts by Avmark to collect the same, Avmark shall be permitted a
reasonable period of time to replace such Vendor before uniView terminates
this License.
(b) Cure of Breach. As a condition precedent to any assertion by
either party that the other is in default in performing any obligation
contained herein, the party alleging the default must advise the other of
the specific facts upon which it is claimed that the other is in default and
the said other party shall be allowed a period of thirty (30) days after
receipt of such notice, within which to cure such default. The parties
agree that no breach of the terms hereof will be deemed incurable.
(c) Production Quantities of Licensed Products. If Avmark shall not
have commenced in good faith to manufacture Licensed Products in substantial
quantities on or before September 1, 2000, uniView, in addition to all other
remedies available to it hereunder, may at its sole option terminate this
License with respect to any Licensed Products which have not yet been
manufactured and distributed, by giving written notice of termination to
Avmark. Avmark may nullify such termination by commencing to manufacture
Licensed Products in substantial quantities within thirty (30) days and
promptly providing uniView with written notice that it has done so.
(d) Active Distribution of Audio and Telephone Licensed Products. If
Avmark shall not have actively marketed and sold audio and telephone
Licensed Products on or before June 30, 2002, uniView, in addition to all
other remedies available to it hereunder, may at its sole option terminate
this License with respect to any audio and telephone Licensed Products which
have not yet been manufactured and distributed, by giving written notice of
such termination to Avmark.
13. FINAL STATEMENT UPON TERMINATION OR EXPIRATION. Sixty (60) days
before the expiration of this License and, in the event of its termination,
ten (10) days after receipt of notice of termination, Avmark shall furnish
to uniView a statement showing the number and description of Licensed
Products on hand or in process. uniView shall have the right to take a
physical inventory upon ten (10) days written notice to ascertain or verify
such inventory and statement, and refusal by Avmark to submit to such
physical inventory by uniView shall forfeit Avmark's right to dispose of
such inventory, uniView retaining all other legal and equitable rights
uniView may have in the circumstances.
14. DISPOSAL OF STOCK UPON TERMINATION OR EXPIRATION. After termination
of the License, or any part thereof, under the provisions set out above,
Avmark may, except as otherwise provided in this Agreement, dispose of the
affected Licensed Products which are on hand or in process at the time
notice of termination is received. Such disposal may occur for a period of
ninety (90) days after notice of termination, provided advances and
royalties with respect to that period are paid and statements are furnished
for that period in accordance with this License. Notwithstanding anything
to the contrary herein, Avmark shall not manufacture, sell or dispose of any
Licensed Products after an expiration or a termination of this License which
is based on the failure of Avmark to affix notice of trademark registration
or any other notice to the Licensed Products, cartons, containers, or
packing or wrapping material or advertising, promotional or display
material, or because of the departure by Avmark from the quality and style
approved by uniView pursuant to this Agreement.
15. EFFECT OF TERMINATION OR EXPIRATION. Upon and after the expiration
or termination of this License, all rights granted to Avmark hereunder shall
forthwith revert to uniView, who shall be free to license others to use the
▇▇▇▇ in connection with the manufacture, sale and distribution of the
Licensed Products and Avmark will refrain from further use of the ▇▇▇▇ or
any further reference to it, direct or indirect, in connection with the
manufacture, sale or distribution of Avmark's products, except as provided
in paragraph 14. Termination of the License shall be without prejudice to
any rights which uniView may otherwise have against Avmark. Upon the
termination of this License, notwithstanding anything to the contrary
herein, all royalties on sales theretofore made shall become immediately due
and payable and no minimum royalties shall be refunded or avoidable.
16. THIRD PARTY LICENSES. Avmark agrees to use its best efforts to
obtain all third party licenses reasonably required for the manufacture and
distribution of the Licensed Products, e.g. Macrovision, in such a manner as
will permit uniView full use of the same third party licenses for other
products.
17. PUBLICITY. The parties agree that the timing and content of any
release of information to the public concerning this Agreement shall be as
mutually agreed.
18 FIRST REFUSAL. In the event uniView desires to sell, assign or
otherwise transfer its interest in the ▇▇▇▇ and has obtained a bona fide
offer for the sale thereof made by some person other than Avmark, it shall
first offer to transfer its interest to Avmark at the price and on the terms
offered to it. Avmark shall notify uniView in writing of its decision
within thirty (30) days after receiving uniView's notice of its desire to
sell. All things being equal, uniView will give Avmark favorable
consideration in any such sale.
19. NOTICES. All notices or other communications hereunder must be given
in writing as follows:
uniView Technologies Corporation Avmark, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇ FAX: ▇▇▇-▇▇▇-▇▇▇▇
Such notices shall be either (i) delivered in person, (ii) transmitted by
facsimile telecommunication, provided that any notice so given is also
mailed as provided for herein, (iii) delivered by Federal Express or similar
commercial delivery service, or (iv) mailed by certified mail, postage
prepaid, return receipt requested. All notices and statements to be given,
and all payments to be made hereunder, shall be given or made at the
respective addresses of the parties as set forth above or to such other
address or facsimile number as the parties shall have designated to the
other by like notice. Each such notice or other communication shall be
effective (i) if given by facsimile telecommunication, when transmitted,
(ii) if given by mail, five (5) business days after such communication is
deposited in the mail and addressed as aforesaid, (iii) if given by Federal
Express or similar commercial delivery service, one (1) business day after
such communication is deposited with such service and addressed as
aforesaid, and (iv) if given by any other means, when actually delivered at
such address.
20. NO JOINT VENTURE. Nothing herein contained shall be construed to
place the parties in the relationship of partners or joint venturers, and
none of the parties shall have any power to obligate or bind the others in
any manner whatsoever.
21. ASSIGNMENT OR SUBLICENSE BY AVMARK. This Agreement and all rights
and duties hereunder are personal to Avmark and shall not, without the prior
written consent of uniView, be assigned, mortgaged, sublicensed or otherwise
encumbered by Avmark or by operation of law, which consent shall not be
unreasonably withheld. Notwithstanding the foregoing, uniView agrees that
Avmark may sublicense the ▇▇▇▇ to Kmart Corporation according to terms
relating to the ▇▇▇▇ which are identical to those contained in this
Agreement and according to other terms which are substantially in accordance
with this Agreement. uniView may assign its rights hereunder and shall
furnish written notice of any such assignment to the other parties.
22. ENTIRE AGREEMENT; NO WAIVER. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other communications, whether written or oral, including,
without limitation, the letter agreement between the parties dated May 11,
1999 and its annexed form license agreement. None of the terms of this
Agreement can be waived or modified except by an express agreement in
writing signed by both parties. The failure of either party hereto to
enforce, or the delay by either party in enforcing, any of its rights under
this Agreement shall not be deemed a continuing waiver or a modification
thereof and either party may, within the time provided by applicable law,
commence appropriate legal proceeding to enforce any or all of such rights.
No person, firm, group or corporation (whether included in the ▇▇▇▇ or
otherwise) other than the named parties shall be deemed to have acquired any
rights by reason of anything contained in this Agreement.
23. SEVERABILITY. If any provision hereof is determined by a tribunal of
competent jurisdiction to be illegal or unenforceable, it shall
automatically be deemed conformed to the minimum requirements of law and,
along with all other provisions hereof, shall thereupon be given full force
and effect. Headings are for reference purposes only and have no
substantive effect.
24. FORCE MAJEURE. Each party shall be excused from any delay in
performance hereunder caused by an occurrence or contingency beyond its
reasonable control and despite its best efforts, including, but not limited
to, an act of God, war, fire, government requirements, inability to secure
materials and transportation difficulties. The affected party shall give
the other party prompt written notice of any such delay. The obligations and
rights of the party so excused shall be extended on a day-to-day basis for
the time period resulting from such excusable delay
25. DISPUTES, CHOICE OF LAW. Except for certain emergency judicial relief
sought in connection with misuse of the ▇▇▇▇ which may be brought at any
time, the parties agree that all disputes between them shall be submitted
for informal resolution to their respective chief operating officers. Any
remaining dispute shall be submitted for arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association. Such
arbitration proceedings shall be held in a neutral city approximately
equidistant from Avmark's and uniView's main offices, the site to be chosen
by the party seeking to initiate the arbitration. The award of the
arbitrators shall include a written explanation of their decision, shall be
limited to remedies otherwise available in court and shall be binding upon
the parties and enforceable in any court of competent jurisdiction. This
agreement shall be governed by and construed in accordance with the
substantive laws of the United States and Texas.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed as of July 1, 2000.
uniView Technologies Corporation Avmark, Inc.
By:____/s/ ▇▇▇▇▇▇▇ ▇. Custer_____ By:___/s/ ▇▇▇▇▇ ▇. Vance_________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
