[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED
WITH THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURTIES ACT OF 1933, AS AMENDED.
BUSINESS ALLIANCE AGREEMENT
This BUSINESS ALLIANCE AGREEMENT ("Agreement") is made and entered into
as of the date the last signature below is affixed (hereinafter
"Effective Date"), by and between uniView Technologies Products Group,
Inc., a Texas corporation, with its principal place of business at 00000
Xxxxx Xxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx Xxxxx 00000 ("UNIVIEW") and
Zoned In, Inc. with its principal place of business at 0000 Xxxx Xxxx
Xxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 ("Zoned In").
A. Whereas, UNIVIEW develops and markets set top boxes for, among
other things, accessing the Internet;
B. Whereas, UNIVIEW has access to the trademark "Xxxxxx Xxxxxx(R)"
for use in relation to set top boxes;
C. Whereas, Zoned In offers a secured Internet network accessed
through set top boxes and other methods; and
D. Whereas, UNIVIEW desires to fulfill Zoned In's orders for set
top boxes and Zoned In desires to utilize uniView's expertise in the
production of a set top box ("Z-Box") utilizing the Xxxxxx Xxxxxx
trademark.
Now, Therefore, the parties hereby agree as follows:
1.0 AGREEMENT DOCUMENTS AND DEFINITIONS
1.1 Agreement Documents: This Agreement is comprised of this Agreement
and the following Exhibits, that may be amended from time to time by
written approval of both parties, which are attached hereto and made a
part hereof:
Exhibit A - Zoned In's Specified Features
Exhibit B - UNIVIEW's Specifications
1.2 Definitions:
1.2.1 Zoned In's Specified Features shall mean a detailed
description of the desired features of the Product.
1.2.2 UNIVIEW's Specifications shall mean the hardware reference
platform specification developed in accordance with Zoned In's
Specified Features, defining the Product.
1.2.3 Product shall mean an enclosed set top box for use in
accessing the Internet ("Z-Box"), which conforms to Zoned In's
Specified Features, manufactured according to UNIVIEW's
Specifications, and which contains the Xxxxxx Xxxxxx trademark. The
Product may consist of two versions, a consumer model and a business
model.
1.2.4 Confidential Information shall mean Zoned In's Specified
Features, UNIVIEW's Specifications, this Agreement, and all other
proprietary information relating to the subject matter of this
Agreement furnished by one Party to the other Party under this
Agreement and designated as confidential, where possible in writing,
by an appropriate legend, such as "Zoned In Confidential
Proprietary" or "UNIVIEW Confidential Proprietary", and if disclosed
orally, that which is identified at the time of oral disclosure as
being confidential and being confirmed within thirty (30) days after
such oral disclosure in written and/or graphic model form and
designated by the disclosing party in writing as confidential by
such legend.
2. PRODUCT DEVELOPMENT AND ACCEPTANCE
2.1 Pursuant to the terms of this Agreement, the parties will work
together to develop and customize the most functional and cost effective
Product from an existing hardware reference platform specification by
creating a derivative specification, which incorporates Zoned In's
Specified Features. Zoned In will provide its Specified Features to
UNIVIEW and UNIVIEW will design and integrate those features with the
existing hardware reference platform. The parties recognize that
technical assistance and discussions will be required, from time to time,
to assist UNIVIEW in integrating Zoned In's Specified Features into the
Product. UNIVIEW and Zoned In agree to mutually cooperate to resolve
technical issues in order to efficiently resolve technical questions as
they might arise. Each party agrees to bear its own costs associated
with any such assistance.
2.1.1 Whenever possible Zoned In will provide the hardware and
appropriate drivers for peripheral devices that connect to the
Product. However, the parties agree to work together on the
interfacing issues relating to such devices. In addition, UNIVIEW
will work on all issues pertaining to the Product interfacing with
the Internet and Zoned In's secured network.
2.1.2 The Graphic User Interface (GUI) shall only display Zoned
In's trademark or trademarks approved by Zoned In into the home page
of the Z-Box.
2.1.3 User authentication shall be accomplished through smart
cards. Zoned In will enable smart cards to be sent to users prior
to the user's receipt of the Z-Box. The smart card will
automatically register and authenticate the user at an
authentication site located within Zoned In's default Internet
Service Provider (ISP).
2.2 UNIVIEW will develop and provide to Zoned In a Product prototype
with per unit pricing no later than thirty (30) days after UNIVIEW
receives Zoned In's Specified Features. This prototype shall contain all
of Zoned In's Specified Features, or may contain whatever feature set to
which the parties may mutually agree in order to expedite delivery of the
initial prototype. The prototype shall also include the GUI that
incorporates Zoned In's trademark into the home page of the Z-Box. Once
Zoned In accepts the prototype, UNIVIEW shall provide nineteen (19)
additional like prototypes to Zoned In no later than fifteen (15) days
after acceptance.
2.3 Zoned In shall have thirty (30) days from the date it receives the
initial Product prototype in which to accept or reject such Product
prototype in writing.
2.3.1 Acceptance or rejection shall be based upon a
determination by UNIVIEW and Zoned In as to whether the delivered
Product prototype operates substantially in accordance with Zoned
In's Specified Features and whether the per unit pricing is
acceptable. Such acceptance shall not be unreasonably withheld. If
Zoned In fails to deliver to UNIVIEW its written acceptance or
rejection within the thirty (30) day acceptance period, the Product
prototype shall be deemed accepted and approved for production.
2.3.2 If Zoned In gives UNIVIEW written notice of rejection of
the Product prototype or pricing within the thirty (30) day
acceptance period, then the parties will cooperate in determining a
corrective action plan, which may include modification of Zoned In's
Specified Features to obtain more favorable pricing. If the parties
have attempted good faith corrective actions and the corrected
Product prototype still fails to operate substantially in accordance
with Zoned In's Specified Features or if the pricing is still
unacceptable, then either party shall have the right to terminate
this Agreement. Upon such termination, all Confidential Information
shall be returned to its owner.
3.0 PRICING, REVENUE SHARING AND PAYMENT
3.1 For manufacturing quantities of the Product, pricing shall be based
upon written estimates provided from time to time by UNIVIEW to Zoned In.
Such pricing shall be finalized as may be mutually agreed prior to mass
production of the Product. Based upon initial discussions of the
potential features of the Product, the initial target price for the basic
consumer model of the Product is estimated to be **** per unit and the
initial target price for the basic business model of the Product is
estimated to be **** per unit. To the extent additional features are
added to or subtracted from the Product, the parties agree to revise
pricing in advance of manufacturing.
3.2 UNIVIEW shall provide its engineering and development services to
Zoned In at its cost, which costs shall be estimated by UNIVIEW and pre-
approved by Zoned In before they are incurred. These costs may be waived
by mutual agreement for any designated engineering project.
3.3 The parties agree to share the monthly fees collected from placement
of the Product with a customer, as may be mutually agreed, and to further
explore other sources of revenue sharing as additional streams of revenue
are developed. UNIVIEW shall receive **** per unit per month for each
Product unit placed with a customer.
3.3.1 Zoned In shall pay all revenue owed to UNIVIEW monthly,
within fifteen (15) days after the end of each month. When making a
payment, Zoned In shall provide a written unaudited report, which
identifies the transactions giving rise to such payment. Zoned In
shall keep and maintain at its principal office, accurate, true and
complete books, records, accounts and all other information
necessary for an exact determination of all revenue with respect to
which payments are due to UNIVIEW hereunder for all periods.
UNIVIEW will, upon request, have the right to audit such
transactions at its expense; however, the cost of any audit that
reveals an underpayment in excess of five percent (5%) of the amount
owing for the reporting period in question shall be borne entirely
by Zoned In.
3.3.2 Zoned In or a third party acting on Zoned In's behalf
shall provide an irrevocable Letter of Credit (LC) to the
manufacturer of the Product to secure payment for the Product a
minimum of twelve (12) weeks prior to any requested delivery date.
Zoned In has the final responsibility for providing the LC, however,
UNIVIEW agrees to provide any reasonable and necessary assistance to
Zoned In to obtain an LC.
4.0 ORDERS AND DELIVERY
4.1 The initial delivery forecasted for Products shall be as follows:
**** units on September 1, 2000
**** units on October 1, 2000
**** units on November 1, 2000
**** units on December 1, 2000
Should either party determine that this schedule is impossible for
any reason, it must notify the other party in writing within five (5)
days of such determination at the addresses shown in this Agreement.
4.2 Delivery schedules for additional Product orders shall be as
mutually agreed in writing. Normally, orders must be received a minimum
of twelve (12) weeks in advance of a requested delivery date.
4.3 Zoned In shall keep UNIVIEW informed of its sales, orders received,
and forecasts of Product requirements.
4.4 UNIVIEW shall keep Zoned In informed of any changes in production
scheduling and the parties agree to coordinate Product orders and Product
delivery dates to meet Zoned In's requirements as closely as possible.
4.5 Zoned In agrees to obtain UNIVIEW's advance approval of sales and
purchase orders in excess of 250,000 units in order to determine
appropriate delivery dates.
4.6 Within two (2) business days after procurement, Zoned In shall
provide UNIVIEW with a paper copy of all purchase orders. However, Zoned
In may choose to supply purchase orders via e-mail. Specifically, all
orders taken on line will be delivered to UNIVIEW via e-mail.
4.7 Upon execution of this Agreement, Zoned In shall provide UNIVIEW
with a copy of all existing customer contracts for the placement and sale
of Products. Within two (2) business days after procurement, Zoned in
shall provide UNIVIEW with a copy of all customer contracts for the
placement and sale of Products entered into after the date of this
Agreement. Within two (2) business days after procurement, UNIVIEW will
provide to Zoned In any OEM agreements it intends to rely on to fulfill
Zoned In's Purchase orders. If UNIVIEW enters into subsequent OEM
agreements Zoned IN shall be notified within two (2) business days
thereof.
4.8 Within five (5) business days after receiving a written purchase
order from Zoned In, UNIVIEW shall provide Zoned In with a Product
delivery schedule for the purchase order.
4.9 All deliveries will be made C.I.F. Zoned In's designated
distribution center(s), except that UNIVIEW will make freight
arrangements in accordance with Zoned In's reasonable instruction, if
any, and Zoned In shall be responsible for freight, duty, insurance and
other associated charges. All PRODUCT will be delivered in individual
packaging co-branded with Zoned In's and UNIVIEW's "Xxxxxx Mathesr"
trademarks. The packaging shall be pre-approved by Zoned In.
4.10 Possession and risk of loss shall pass to Zoned In at delivery.
Zoned In shall pay all costs of insurance from the time of possession.
UNIVIEW shall cooperate fully with Zoned In with respect to Zoned In's
obtaining insurance protection for the Products.
5.0 LICENSE AND OWNERSHIP RIGHTS
5.1 All right, title and interest in and to preexisting technology of
each party, including all underlying intellectual property rights, shall
remain vested with the respective party of origin, and no licenses are
granted to either party to use such rights other than as expressly
authorized in this Agreement.
5.2 UNIVIEW shall own any underlying copyright, patent and trade secret
rights in any and all portions of the Product created solely by UNIVIEW
in the performance of this Agreement. Zoned In shall own any underlying
copyright, patent and trade secret rights in any and all portions of the
Product created solely by Zoned In.
5.3 All intellectual property, which is created as a joint effort with
no clear definition of credit, may be mutually owned property but cannot
be used or promoted without the consent or participation by both parties.
Such potential mutually owned intellectual property will be specified and
agreed prior to commencement of development.
5.4 Zoned In shall have a perpetual, world-wide, royalty-free, non-
exclusive license for the special application of UNIVIEW needed to
convert the set top box platform into the customized Zoned In Product,
with the right to sublicense the application to its customers only.
Provided that Zoned In substantially meets its delivery forecasts as set
out in paragraph 4.1 above, the Z-Box as configured for Zoned In shall be
provided exclusively to Zoned In and UNIVIEW agrees that it will not sell
the Z-Box to another party for a period of three years after termination
of this agreement.
5.5 UNIVIEW shall have, for purposes of manufacturing the Product for
Zoned In, a perpetual, world-wide, royalty-free, non-exclusive license
for any Zoned In proprietary software necessary in the manufacture of the
Product, with right to sublicense such software, including all
confidential know-how, methods, inventions, discoveries and other
proprietary information, in the manufacture of the Product. However,
Zoned In will be consulted prior to a sublicense agreement being granted
under this part for its approval. In addition, any sublicensor shall
provide Zoned In with non-disclosure non-compete agreements as required
by Zoned In.
5.6 Any off-the-shelf software UNIVIEW provides to Zoned In for Zoned
In's own use or for sublicensing to Zoned In's end users will be
furnished only under the terms of separate Software License Agreements
that may be in the form of a written agreement, shrink-wrap or break-the-
seal as may be required by UNIVIEW's suppliers. These agreements contain
provisions, under which Zoned In agrees to be bound, relating to software
ownership, protection, trademark display and conditions for sublicensing
the software to Zoned In's customers. The software is UNIVIEW's own or
UNIVIEW's supplier's Proprietary information. All required software
under this section shall be pre-approved by Zoned In and Zoned In may
contact suppliers directly for licensing rights there under. The
software referred to in this section does not include the software
required to operate the Z-Box as purchased herein. Any software required
to operate the Z-Box shall be included in the price of the Z-Box and all
of Zoned In's rights to the software may be transferred with the purchase
of the Z-Box under the first sale doctrine.
6.0 MARKETING AND CUSTOMER SERVICE
6.1 The parties will cooperate to plan and execute joint seminars,
public relations events, press releases, participation in trade shows,
conventions and conferences, as mutually deemed appropriate.
6.2 Each party shall provide customer support as may be mutually
agreed. UNIVIEW shall provide customer support for the Product and Zoned
In shall provide customer support for its software.
7.0 CONFIDENTIALITY
7.1 Neither party will, for a period of three (3) years from the receipt
of Confidential Information from the other party, publish or disseminate,
except to employees with a need to know, any such Confidential
Information.
7.2 Information shall not be considered "Confidential Information" if it
(i) is not clearly marked as being confidential by the transferring party
or if disclosed orally, is not confirmed in writing and so marked within
thirty (30) days of disclosure, (ii) was previously known by the
receiving party, (iii) becomes public knowledge without breach of this
Agreement, (iv) is at any time independently developed by the receiving
party, (v) approved for release by the party designating the information
as Confidential, or (vi) is lawfully obtained from a third party or
parties without a duty of confidentiality.
7.3 The obligations of the respective parties set forth in this Section
shall survive either the termination or expiration of this agreement.
7.4 Notwithstanding the above, the Receiving Party may use Residuals of
any portion of the Confidential Information to develop products and
services and to provide such other products and services to third
parties. The term "Residuals" means information in non-tangible form,
which may be retained by employees of the Receiving Party without the use
of rote memorization and who have had access to the Confidential
Information, including ideas, concepts, know-how or techniques contained
therein. No patent or copyright rights of the Disclosing Party are
granted, either expressly or by implication, in connection with any use
of Residuals of any portion of the Confidential Information.
8.0 PRODUCT CHANGE
8.1 UNIVIEW reserves the right to make modifications to the Product and
its components. UNIVIEW agrees to notify Zoned In of any change to the
Product that may affect Zoned In's Specified Features, reliability of the
Product or the packaging media. UNIVIEW shall provide Zoned In with
written notification of the aforementioned changes not less than thirty
(30) days prior to the proposed change. In the event any proposed change
affects the operation, reliability or life of the Product, or the ability
to interface the Product with other products, and in the event UNIVIEW
and Zoned In fail to reach agreement thereon, Zoned In shall have the
right to terminate this Agreement and/or any or all outstanding purchase
orders for the Product, in whole or in part.
9.0 TERM, TERMINATION AND CANCELLATIONS
9.1 The initial term of this Agreement shall begin on the Effective date
hereof and shall continue from year to year unless otherwise terminated
hereunder.
9.2 This Agreement may be terminated by either party under the
circumstances and with the consequences provided in this section or as
otherwise stated in this Agreement.
9.2.1. If either party hereto becomes insolvent or bankrupt or
admits its inability to pay its debts as they mature, or makes an
assignment for the benefit of its creditors, or ceases to function
as a going concern or to conduct its operations in the normal course
of business, or if the majority of the ownership or control of
either party is acquired by another enterprise reasonably considered
to be a competitor of the other party, or if either party acquires a
majority interest in such an enterprise, the other party shall have
the right to terminate this Agreement immediately and such
termination shall occur upon the giving to the other party of notice
of its intention so to terminate. For purposes of the foregoing,
"control" shall mean the direct or indirect ability or power to
direct, or cause the direction of, the management and policies of a
party, whether through the ability to vote a party's securities, by
contract or otherwise. It is understood that Zoned In is in a joint
venture with a biometric company that will provide hardware features
associated with its secured portal service. The parties agree that
this does not constitute a competitor as contemplated in this
section.
9.2.2 If either party breaches this Agreement, the other party
shall have the right to terminate this Agreement in whole or any
portion hereof. Termination as a result of breach by either party
shall not be effective unless: (i) the breach is a material breach,
(ii) the party wishing to terminate provides written notice to the
other party of the occurrence and nature of the breach, and (iii)
the party to whom such notice was given fails to correct the breach
with thirty (30) days of receipt of such notice.
9.2.3 If either party wishes to terminate this Agreement or a
portion thereof solely for the convenience of such party, that party
shall have the right to terminate this Agreement by giving written
notice to that effect to the other party, such termination to be
effective thirty (30) days after the giving of such notice.
9.2.4 Either party may terminate this Agreement if it
determines, in the exercise of good faith that completion of the
work under Section 2 is infeasible. Termination under this section
9.2.4 can be accomplished by giving written notice to that effect to
the other Party. Such termination will be effective thirty (30)
days after the giving of such notice.
9.3 Cancellation or Delay of Production Orders
9.3.1 Zoned In and UNIVIEW agree to comply with the terms and
conditions of the manufacturing contract between UNIVIEW and the
designated manufacturer of the Product including, among others,
obligations regarding cancellation of accepted purchase orders and
delays in Product shipments.
9.3.2 If UNIVIEW notifies Zoned In that the manufacturer cannot
deliver Product as promised within sixty (60) days or less before
the scheduled ship date, UNIVIEW agrees to use its best efforts to
ensure delivery of Product as soon as possible.
9.4 However, in the event a customer contract extends beyond any
termination or expiration of this Agreement, such products or services
shall remain in effect for the agreed upon time specified in the customer
agreement, subject to all of the terms and conditions of this Agreement
as if it were still in effect with respect to such products or services.
10.0 CRITICAL COMPONENT LIABILITY
10.1 UNIVIEW's products are not designed, intended or authorized for use
as critical components in life support or safety devices or systems or
for any other application in which the failure of UNIVIEW's product could
create a situation where personal injury or death may occur without the
express written approval of UNIVIEW.
11.0 PRODUCT WARRANTY
11.1 Product warranties shall be as provided by the manufacturers of the
Product. UNIVIEW and Zoned In understand that the current warranty of
the initial manufacturer is that the Product(s) will be free from
material defects in material and workmanship for a period of twelve
months from the sale to the end-user with a maximum period of fifteen
(15) months from expedition date from the factory. This warranty is
limited to the repair or replacement of the defective product, which must
be returned to the manufacturer according to its "Return Procedure."
UNIVIEW agrees to assist Zoned In customers with their warranty claims as
part of the customer service provided by UNIVIEW. Zoned In shall make no
warranties with respect to the products or services provided or rendered
by UNIVIEW under this Agreement except as authorized in writing by
UNIVIEW. Zoned In acknowledges that, except as may be provided in this
agreement or otherwise provided by UNIVIEW in writing, NO OTHER
WARRANTIES ARE CREATED BY THIS AGREEMENT, INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.0 INTELLECTUAL PROPERTY INDEMNIFICATION
12.1.1 UNIVIEW represents and warrants that during the Term of
this Agreement, the Product and services, when properly used as
contemplated herein, will not infringe or misappropriate any United
States copyright, trademark, patent, or the trade secrets of any
third persons; provided that (i) UNIVIEW is given prompt written
notice of such claim; (ii) UNIVIEW is given the right to control and
direct the investigation, preparation, defense or settlement of any
claim; (iii) Zoned In fully cooperates with UNIVIEW in the
investigation, preparation, defense or settlement of any claim; (iv)
Zoned In has in all respects complied with the terms of this
Agreement, and (v) the alleged infringement was not caused by Zoned
In's alteration of the Product or use of it in combination with
other software, equipment or technology not approved in writing by
UNIVIEW.
12.1.2 Upon being notified of such a claim, UNIVIEW shall in its
sole discretion (i) defend through litigation or obtain through
negotiation the right of Zoned In to continue using the Product;
(ii) rework the Product so as to make it noninfringing while
preserving the original functionality, or (iii) replace the Product
with articles having substantially equivalent functionality. If
UNIVIEW determines that none of the foregoing alternatives provide
an adequate remedy, UNIVIEW may terminate this Agreement with
respect to such infringing Product upon advance written notice to
Zoned In and, in discharge of its obligations, refund an equitable
portion of fees actually paid by Zoned In for the infringing Product
or services. THESE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE
FOR BREACH OF THE WARRANTY PROVIDED IN THIS SUBSECTION
12.2 Zoned In agrees to defend, at its expense, any suits against UNIVIEW
based upon a claim that any article furnished hereunder by Zoned In to
UNIVIEW for use in connection with the Product, directly infringes a
trade secret, a U.S. patent, a mask work right, or a copyright, and to
pay costs and damages finally awarded in any such suit, provided that
Zoned In is notified promptly in writing of the suit and at Zoned In's
request and at its expense is given control of said suit and all
requested reasonable assistance for defense of same. This indemnity does
not extend to any suit based upon any infringement or alleged
infringement of any patent, mask work right, or copyright by the
combination of any article furnished by Zoned In with other elements if
such infringement would be avoided by the use of the article alone. The
foregoing states the entire liability of Zoned In for trade secret,
patent, mask work right, or copyright infringement.
13.0 LIMITATION OF LIABILITY
13.1 UNIVIEW SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE PORTION OF
THE TOTAL CONTRACT PRICE ACTUALLY PAID BY ZONED IN. IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES DUE TO THE BREACH OF ANY PARTY'S OBLIGATIONS. ZONED IN'S AND
UNIVIEW'S SOLE REMEDY FOR ANY BREACH HEREUNDER SHALL BE LIMITED TO
REMEDIES SET FORTH HEREIN.
14.0 USE OF NAME AND TRADEMARK
Nothing contained in this agreement shall be construed as conferring any
rights to use in advertising, publicity, or other activities any name,
trademark, or other designation of either party hereto, including any
contraction, abbreviation, or simulation of any of the foregoing without
the express written approval of the other party.
15.0 EQUITY PARTICIPATION
15.1 The parties hereby agree to a mutual equity participation in
connection with this Agreement. UNIVIEW agrees to issue to Zoned In a
warrant to purchase one (1) share of uniView Technologies Corporation par
value $.10 common stock, exercisable at $4.00 per share, for every Z-Box
shipped, up to 1 million warrants; and Zoned In agrees to issue to
UNIVIEW a warrant to purchase one (1) share of Zoned In par value $.001
commo stock at $20.00 per share for every five (5) Z-boxes shipped, up
to 200,000 warrants. The warrants become available to each party as the
Product ships and are exercisable for three years thereafter.
15.2 Each party represents and warrants to the other that the issuance of
their respective shares of common stock (collectively, the "Shares") will
have been authorized by all necessary action, corporate or otherwise, and
that upon delivery of the stock certificates representing the shares, the
shares shall be validly issued, fully paid, and non-assessable.
15.3 Each party represents to the other that it is acquiring the Shares
for its own account for investment purposes only and not with a view
towards distribution. The parties understand and agree that it must bear
the economic risks of the Shares for an indefinite period of time.
Except as expressly set forth above, no representations or warranties
have been made to either party by the other, its officers or directors,
or any agent, employee or affiliate of any of them regarding either
company. Each party has conducted whatever investigations and due
diligence activities it deems appropriate in connection with its
acquisition of the Shares. Each party understands that no federal or
state governmental authority has made any finding or determination
relating to the fairness of an investment in the Shares and that no
federal or state governmental authority has recommended or endorsed, or
will recommend or endorse, the Shares. Each party, in making the
decision to acquire the Shares, has relied upon independent investigation
made by it and has not relied on any information or representations made
by third parties. Each party understands that the Shares have not been
registered under the Securities Act or under state securities laws and
therefore it cannot dispose of any or all of the Shares unless and until
such Shares are subsequently registered under the Securities Act of 1933
and applicable state securities laws or exemptions from such registration
are available. Each party acknowledges that a legend substantially as
follows will be placed on the certificates representing the Shares:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (2) PURSUANT TO
AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR OTHER
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), AND IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR OTHER JURISDICTION.
16.0 GENERAL PROVISIONS
16.1 This Agreement, including the Exhibits attached hereto and made a
part hereof, constitute the entire understanding between the Parties
relating to the subject matter hereof. This Agreement supersedes any
previous agreements, either oral or written, relating to the subject
matter herein.
16.2 This Agreement may not be amended or modified in any respect unless
approved in writing and signed by duly authorized officers of the
respective Parties.
16.3 This Agreement and its performance shall be governed by, subject to
and construed in accordance with applicable United States Federal law and
the laws of the State of Florida.
16.4 All captions and descriptive headings used in this Agreement are for
convenience of reference only and are not to be used in interpreting the
obligations of the Parties under this Agreement.
16.5 Except as required by law, neither Party shall disclose any of the
terms and conditions of this Agreement to any third party without the
prior written consent of the other Party. However, Zoned In and UNIVIEW
will cooperate on making a joint press release regarding the joint
development of the Product shortly after this Agreement is signed.
16.6 Notice hereunder shall be deemed to have been sufficiently given
when delivered in writing by certified or registered mail, or by a
recognized courier service, by either Party to the other and directed to:
If to UNIVIEW: If to Zoned In:
Xxxxxx X. X'Xxxx, President Xxxxxxxx X. Xxxxx, President
uniView Technologies Products Zoned In, Inc.
Group, Inc 0000 Xxxx Xxxx Xxxxx,
00000 Xxxxx Xxxxxx Parkway, Suite 204
Suite 2050 Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxx, Xxxxx 00000
and to: and to:
Xxxx Xxxx, COO Xxxxxx X. Xxxxxxx, Esq.
uniView Technologies Products Zoned In, Inc.
Group, Inc 0000 Xxxx Xxxx Xxxxx,
00000 Xxxxx Xxxxxx Parkway, Suite 204
Suite 2050 Xxxx Xxxxx, Xxxxxxx 00000
Xxxxxx, Xxxxx 00000
16.6.1 Either Party may change its address by a notice given to
the other Party in the manner set forth above. Notice given as
herein provided shall be construed to have been given seven (7) days
after the mailing thereof.
16.7 Neither this Agreement nor any interest hereunder may be transferred
or assigned, by operation of law or otherwise, by Zoned In without the
prior written consent UNIVIEW. It is the express intent of the parties,
that after issuance of a purchase order by Zoned In, UNIVIEW may assign
the executory portions of this agreement to a third party to perform the
remaining obligations hereunder.
16.8 This Agreement and the obligations and performance of the Parties
hereto shall be subject to all laws, both present and future, of any
Government having competent jurisdiction over the Parties hereto, and to
orders, regulations, licenses, directions or requests of any such
Government, or any department, agency or corporation thereof.
16.9 Each of the Parties will act as, and will be, independent in all
aspects of their performance of this Agreement. Neither Party will act
or have authority to act as an agent for the other Party for any purpose
whatsoever. Except as expressly provided in this Agreement, nothing will
constitute either Party as agent for the other or either Party the
authority to make representations or agreements on behalf to the other,
and each Party covenants not to make any representations or to take any
actions inconsistent with the foregoing. Nothing in this Agreement will
be deemed to constitute or create a joint venture, partnership, pooling
arrangement, contractor arrangement or other formal business entity or
fiduciary relationship between Zoned In (or any of its affiliates) and
UNIVIEW (or any of its affiliates), and nothing in this Agreement shall
be constructed as providing for the sharing of profits or losses arising
out of the efforts of either of UNIVIEW or Zoned In under this Agreement.
16.10 Zoned In and UNIVIEW agree not to export or reexport, or cause
to be exported or reexported, any technical data (including any Technical
Information) received hereunder, or the direct product of such technical
data, to any country to which, under the laws of the United States,
either party is or may be prohibited from exporting its technology or the
direct product thereof without first obtaining proper governmental
approval.
16.11 If any of the provisions of this Agreement shall be held by a
court of competent jurisdiction to be contrary to the law, the remaining
provisions of the Agreement shall remain in full force and effect.
16.12 No orders requiring the submission of cost or pricing data,
containing a defense priority, or to which the Federal Acquisition
Regulation or other U.S. Government procurement requirements are
applicable, will be placed pursuant to this agreement. Any such orders
shall require separate negotiation, agreement and processing.
16.13 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.
16.14 The failure of either Party to insist in any instance upon the
performance by the other Party of any of the terms or conditions, or of
the future performance of any of the terms, covenants or conditions,
shall not relieve such other Party of its obligations with respect to
such performance, and such terms and conditions shall continue in full
force and effect.
16.15 Nothing in this Agreement shall preclude either party from
entering into similar relationships with other companies, nor shall this
Agreement preclude either party from independently developing or
marketing any products that are similar to or compete with the other
party's products; provided, however, that the recipient of Confidential
Information shall not use it for any such purpose.
16.16 In the event of an irreconcilable dispute arising out of or in
connection with this Agreement the parties shall not resort to litigation
but shall submit to arbitration conducted in Miami, Florida in accordance
with the Rules of the American Arbitration Association. The arbitrators
shall have the authority to order discovery, depositions, preliminary and
permanent injunctions, specific performance, and other equitable relief.
The award shall be binding on the parties and may be entered in the
courts of any country. The arbitrators shall rule in accordance with the
laws of the State of Florida, United States of America. Notwithstanding
the foregoing, either party may apply to any court of competent
jurisdiction for injunctive relief without breach of this arbitration
provision.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives as of the day and
year first written herein.
Zoned In, Inc. uniView Technologies Products
Group, Inc.
_/s/ Xxxxxxxx X. Penna_____ _/s/ Xxxxxx X. O'Mara_____
Xxxxxxxx X. Xxxxx, President Xxxxxx X. X'Xxxx, President
Date: ___5/23/00__________ Date:___5/25/00____________
