TECHNICAL DEVELOPMENT
AND MARKETING ALLIANCE AGREEMENT
(Amended and Restated)
This Amended and Restated Technical Development and Marketing Alliance Agreement
(the "Agreement") is entered into as of the ____ day of November, 1997, (the
"Effective Date"), between Xxxxxxxx Wireless, Inc. d/b/a Xxxxxxxx Telemetry
Services, a Delaware corporation with offices at 000 Xxxx Xxxxx Xxxxxx, Xxxxx,
Xxxxxxxx 00000 ("WWI") and World Wireless Communications, Inc., a Nevada
corporation with offices at 000 Xxxxxx Xxxxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx
00000 ("WWC"). Upon execution by both parties, this Agreement amends, restates,
replaces and supersedes that certain Technical Development and Marketing
Alliance Agreement between these parties dated September 26, 1997, from and
after said Effective Date.
WHEREAS, WWI wishes to establish a business relationship with WWC under which
WWI would benefit from WWC's engineering services and experience, and under
which WWI would also enjoy a reliable source of radio based modules and products
and thereby allow WWI a unique competitive edge in the Telemetry Market (as
defined below);
WHEREAS, WWC wishes to establish a business relationship with WWI under which
WWC would benefit from a constant market for the radio based modules, technology
and other products it designs and manufactures exclusively for customers; and
WHEREAS, WWI and WWC wish to establish a business relationship, under the terms
described below, which will mutually support and enhance the development and
marketing efforts of each company in the area of wireless telemetry products and
services.
Now, therefore, the parties agree as follows:
1. Definitions
"Affiliates" means any person, entity, or association directly or indirectly
controlling or controlled by or under direct or indirect common control with,
the party, entity, person or association in question. "Control" will mean the
power to direct the management policies of the controlled person, entity, or
association, whether by voting securities, by contract, by family relationship
or otherwise.
"Radio Technology" means those components of any Telemetry Radio Product that is
the subject of a CSA (as hereinafter defined) and that incorporates or is
derived from technology in which WWC shows, by documentary evidence, that it
owned one or more patents, trade-secret rights, or computer-program copyrights
prior to the date of any CSA by which WWC agreed to design the Telemetry Radio
Product in question for WWI (the "Design Agreement Date"). In the previous
sentence, the term "patent" includes any patent issued after the Design
Agreement Date on an application filed prior to that date.
"Telemetry Markets" means, collectively, businesses and individuals who use
energy and devices or equipment to meter, monitor and/or control (i) use or
consumption of energy or utilities in their various forms, including but not
limited to gas, water and/or electricity, (ii) environmental conditions in
physical facilities, (iii) the status of a variety of sensors in said
facilities, or (iv) the status of inventory and condition of products and items
in said facilities. Telemetry Markets also includes businesses that sell and
distribute products through remote facilities, including without limitation
vending machines and postal and express drop boxes.
"Telemetry Radio Products" means a fully functional radio module for
transmitting and/or receiving data in support of the Telemetry Market. For
purposes of this Agreement, XxxXxxx Technology is not a Telemetry Radio Product.
"Telemetry System" means, collectively, that system consisting of remote
monitoring devices for acquiring data,
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 1 of 9
communication devices for transmitting and receiving such data, data collection
networks, host computer systems for processing such data, (optionally) control
devices for remote control of equipment, software for performing the foregoing
functions, and related technical support services and other management,
processing, networking and related services.
"XXX" or "Telemetry Interface Module" refers to a data capture, data processing
and communication device proprietary to WWI and designed or intended to be
attached to various customer equipment for capturing, sorting and communicating
telemetry data to Telemetry Gateways.
"XxxXxxx Technology" means that telemetry concept and technology developed by
WWI by which various radios (including XXXX) or other transmission devices, are
combined or configured and packaged with other hardware and software for
communicating with metering devices, processing the telemetry data, storing the
data, and communicating the data to a central collection point, as the foregoing
currently exists or is hereafter modified, enhanced, adapted or otherwise
changed.
2. Scope and Purpose of the Alliance. WWC will assist and cooperate with WWI in
developing, engineering, and manufacturing Telemetry Radio Products, XxxXxxx
Technology and other components for Telemetry Systems under the terms contained
herein. WWI shall grant WWC certain engineering, development and manufacturing
contracts, and marketing rights, under the terms contained herein. From time to
time other applications of Telemetry Radio Products may be included by mutual
written consent of both parties, under the terms of this Agreement, including
such possible applications as process control, toll systems, asset tracking and
automatic identification.
3. Systems Engineering and Design Services. From time to time WWI may contract
with WWC for systems engineering and design services relating to Telemetry
Systems. The specific terms of such services shall be set forth in separate
Commercial Services Agreements ("CSA"). Without binding themselves to any
particular form of CSA, the parties contemplate that each CSA for design or
engineering services will include or incorporate a specific scope of requested
services, rates for compensation, and agreements on ownership of final
engineering work product or design. Unless otherwise specifically provided in an
applicable CSA as Radio Technology, all resulting work efforts and
documentation, together with any and all patent rights, copyrights and other
intellectual property rights arising or resulting from such engineering or
design services will accrue to and become the exclusive property of WWI.
4. Manufacturing Services.
4.1 The parties may from time to time enter into CSAs under which WWC may
provide manufacturing services for WWI, subject to and consistent with the
following rights and general conditions:
(i) Exclusive Rights. WWI hereby grants to WWC exclusive rights to
manufacture all Telemetry Radio Products WWC designs exclusively for use by
WWI pursuant to Section 3 above. For its part, WWC agrees that it will
manufacture Telemetry Radio Products exclusively for WWI. Said
manufacturing services will be governed by mutually acceptable terms set
forth in separate manufacturing CSAs, unless such terms are specified in an
existing CSA for engineering and design services. Terms in such CSAs will
include service level expectations concerning cost, quality and timeliness
and will include manufacturing warranties. WWC and WWI will jointly
identify third-party backup or standby manufacturers, with whom WWC shall
contract, or (subject to the limitations hereunder) with whom WWI may
contract, for acceptable supportive manufacturing services under terms
agreed to under CSAs. Exclusive manufacturing rights granted under this
subsection will remain in force as long as WWC maintains service level
expectations specified in applicable CSAs and as long as WWC maintains the
capability to perform under proposed CSAs. Upon the termination of such
exclusivity rights. WWI may identify and contract with another
manufacturer, subject to WWC's rights to a 2% royalty to be paid by WWI for
WWI's continuing rights to use and incorporate the Radio Technology in a
resulting product. Notwithstanding WWI's contract with another
manufacturer, WWC will continue to manufacture and deliver specified
product to WWI as required under applicable CSAs for as long as WWI
performs its obligations under this Agreement and the applicable CSAs,
including reasonably timely payment for the manufactured products.
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 2 of 9
(ii) Non Exclusive Rights. From time to time WWI may also, at its
option, contract with WWC to manufacture other products or devices for WWI
under terms of separate CSAs. Except as granted in Section 4.1(i), WWC has
no exclusive rights to manufacture any product for WWI.
4.2 Without binding themselves to any particular form of CSA, the parties
contemplate that each CSA for manufacturing services will include or
incorporate, by schedules or otherwise, at least the following details: (i)
product description and sufficient specifications to permit objective standards
for manufacturing, performance and quality control, to include compliance with
all applicable standards necessary for UL certification and for FCC compliance
and certification; (ii) estimated manufacturing quantity and production/delivery
schedules; (iii) price or method of compensation for WWC's manufacturing
services and for WWI's use of Radio Technology incorporated in any such product.
To the extent that compensation for manufacturing is based or calculated upon
costs incurred, WWC will in good faith disclose its component and manufacturing
costs to WWI and WWI will in good faith negotiate a fair compensation for
component and manufacturing costs based on industry standards and the price
constraints of the Telemetry Market.
5. Property Rights.
5.1 With the sole exception of Radio Technology, WWI will own all XxxXxxx
Technology, whether or not said technology has heretofore been reduced to or
memorialized by patents or patent applications. All work product relating to the
XxxXxxx Technology (including, without limitation, such things as drawings,
specifications, prototypes, circuit boards and technical information) and
documentation associated with the design, engineering, creation and/or
manufacturing of the XxxXxxx Technology will remain the exclusive property of
WWI. WWC will hold all XxxXxxx Technology work product in trust for the
exclusive purpose of satisfying manufacturing or engineering requests defined by
applicable CSAs and subject to confidentiality agreements currently in place and
in effect between the parties. WWC shall not release to any other party for any
reason whatsoever at any time any such information or any work product relating
thereto, except as specifically licensed to do so as part of or in connection
with an agreement governing WWC's authorized manufacture, distribution, resale
or other authorized marketing of or dealings with XxxXxxx Technology.
5.2 In addition, and with the exception of Radio Technology, WWI will own
all right, title and interest in and to any and all intellectual property rights
throughout the world (including without limitation patent rights, design patent
rights, copyrights, trade secret rights, and the like) associated with all
Telemetry Radio Products and other devices manufactured for WWI by WWC as works
for hire, including without limitations any modifications, enhancements,
adaptations or other changes to the XxxXxxx Technology, and WWC will execute
patent applications, copyright registrations, written assignments, and any other
documents reasonably required to memorialize and perfect such rights as such
action may be requested by WWI from time to time.
5.3 All Radio Technology used by WWC (i) in creating Telemetry Radio
Products and any other devices or (ii) in otherwise providing services for WWI
(including but not limited to drawings, specifications, prototypes and circuit
boards relating to such Radio Technology) will remain the exclusive property of
WWC, and WWC hereby grants to WWI a perpetual, world-wide, royalty-free license
to use the Radio Technology in products manufactured by WWC for WWI for
Telemetry Systems in the Telemetry Markets. The parties understand that the
Radio Technology is based upon existing WWC technology and that WWC retains
ownership rights to any patents, technology, copyrights or trademarks that were
used in creating the Radio Technology. If, however, WWI contracts to WWC under
terms specified in a CSA for a custom component of a Telemetry System, or other
telemetry device, including a custom Telemetry Radio Product, then WWI will own
all such intellectual property rights in that specified product (as well as the
drawings, specifications, prototypes, circuit boards, technical information and
documentation relating thereto) as well as any such intellectual property rights
that may be derived therefrom.
5.4 WWC agrees, unless specified otherwise in the CSA, that all work
product relating to the Telemetry Radio Products (including without limitation
such things as drawings, specifications, prototypes, circuit boards and
technical information) and documentation associated with designing, engineering,
creating and/or manufacturing the Telemetry Radio Products will be the exclusive
property of WWI and will be delivered to WWI from time to time as specified by
the applicable CSA. WWC shall not release to any other party for any reason
whatsoever at any time any such work product or information, and all of the work
product and information that had not previously been returned to WWI shall be
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 3 of 9
returned to WWI promptly following the termination of this Agreement, or earlier
upon the request of WWI. For so long as WWC retains exclusive manufacturing
rights as provided in Section 4 and is performing manufacturing services for
WWI. WWI will hold all such documentation proprietary between WWC and WWI and
will not disclose the documentation or solicit any other manufacturer. WWI
nevertheless grants to WWC a non-exclusive, world-wide, royalty-free license to
use and incorporate technology thus developed by WWC for WWI into WWC products
produced or marketed into markets other than the Telemetry Markets.
6. Marketing Services
6.1 Subject to Section 6.2 and the last sentence in this paragraph, WWI
grants to WWC the non-exclusive, world-wide, license and right to market WWI's
Telemetry Systems pursuant to a marketing plan, to be developed by the parties
before March 31, 1998. Said marketing plan will provide a basis for an agreement
between the parties that will more specifically set forth the terms and
conditions of the parties' marketing relationship, including such terms as
pricing, quantities and commitment levels and any additional license terms and
conditions that may reasonably be required. The parties will determine whether
such agreement will allow WWC to sell the Telemetry Systems on an agency basis,
as a reseller, or under other arrangements. WWI retains the right at any time in
the future to assign certain market segments to specific marketers.
6.2 WWI retains the right to approve in advance WWC's pursuit of all
marketing opportunities. To receive approval, WWC will follow a customer
registration process, to be established by mutual agreement. WWI will not
unreasonably deny WWC's registration of a potentially new customer, but WWI
reserves the right to deny WWC's request to pursue a customer if WWI or any of
WWI's Affiliates, at WWI's sole discretion, believes that selling to that
customer is detrimental in some way to the Xxxxxxxx Companies or if the customer
is being pursued, or under active consideration to be pursued, by WWI or another
authorized marketer. Once registered, WWI will neither sell to nor will it allow
another marketer to pursue the registered customer. The registration will be
canceled only after sufficient time period for closing has elapsed and only if
it becomes obvious that WWC is not making progress toward closing the
opportunity.
6.3 Each party shall be fully responsible to its customers for their
satisfaction with the Telemetry Systems. Each party will provide technical
support to the other in certain instances.
7. Relationship of the Parties. The execution of this Agreement does not
constitute, nor shall the execution hereof be construed to create or imply, a
partnership, joint venture, principal-agent or employment relationship, or any
other such relationship. Under the terms of this Agreement, neither WWI nor WWC
has the right or authority to bind or commit the other party to any obligations.
8. Warranties. WWC warrants that the Radio Technology will be free of defects
and, further, that any products manufactured by WWC or under its direction for
WWI will satisfy governing specifications under applicable CSAs, will be
functional and free of defects in materials and manufacturing and will satisfy
all applicable standards required for FCC certification and UL certification.
Consistent with this warranty, costs of compliance will be borne by WWC.
However, costs of all required testing and certification will be borne by WWI
alone. WWC agrees to replace or (at WWI's option) to issue credit for any
product which fails to comply with the applicable warranty within the applicable
warranty period, which, unless otherwise specifically defined in a governing
CSA, shall be 12 months from the date of delivery of the product to a WWI
customer. After WWI's discovery of any such failure, WWI will provide prompt
notice thereof to WWC; however, any delay in providing such notice will in no
way diminish WWC's warranty obligation. WWI will bear the cost of returning any
products to be replaced if requested by WWC; and WWC will bear the cost of
distributing the replacement products.
9. General Indemnity. Each party shall defend, indemnify, and hold the other
harmless from any and all liabilities resulting from or relating to any breach
of warranty, representation, or agreement or performance of duties and
obligations of such party, except to the extent caused by the negligence or
willful acts or omissions of the party entitled to indemnification. This broad
and general mutual obligation of indemnity may be modified or limited by mutual
agreement relating to specific products or services.
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 4 of 9
10. Representations and Warranties. Each party is a valid entity and in good
standing, has authority to enter into this Agreement, the CSAs and the other
agreements contemplated hereby, and to carry out the actions described herein.
Each party further warrants and represents that the Agreement is binding and
enforceable as against such party in accordance with its terms, subject to
bankruptcy, insolvency or other similar laws relating to creditors' rights
generally, and subject to general principals of equity. WWC represents that it
is the exclusive owner of the Radio Technology and all patents, copyrights, or
other intellectual property rights pertaining thereto. WWC further represents
that no cause of action against WWC has commenced or been threatened as of the
Effective Date of this Agreement which alleges that such Radio Technology
infringes upon a third party's present or future patent, copyright, trade secret
or other proprietary right. WWI represents that no cause of action against WWI
has commenced or been threatened as of the Effective Date of this Agreement
which alleges that the Xxxxxxx Technology infringes upon a third party's present
or future patent, copyright, trade secret or other proprietary right.
11. Term. The initial term of this Agreement shall commence upon the Effective
Date and will continue for three years and will be extended automatically beyond
said period to coincide with the longest term of, or period of performance
under, any CSA entered into during the original term or during an extended term
of this Agreement; otherwise, the term may only be extended by the mutual
agreement of the parties.
12. Termination. In the event that:
(i) the parties mutually agree to terminate this Agreement; or
(ii) a party is in material breach of this Agreement (including any CSA)
and, after the non-breaching party has given the breaching party 45
days' prior notice setting forth in reasonable detail the alleged
breach, the breaching party has failed to cure such breach within such
45-day period; or
(iii) a party (a) is not paying its debts as such debts generally become
due, (b) becomes insolvent, (c) files or has filed against it a
petition (or other document) under any bankruptcy law or similar law
that is unresolved within sixty (60) days of the filing of such
petition (or document), (d) proposes any dissolution, liquidation,
composition, financial reorganization or recapitalization with
creditors, or (e) makes a general assignment or trust mortgage for the
benefit of creditors, or if (f) a receiver, trustee, custodian or
similar agent is appointed or takes possession of any of a party's
property or business, or (g) execution is levied upon, all or
substantially all of the other party's business or assets; or
(iv) WWC sells all or substantially all of its assets, or WWC enters into a
merger in which WWC is not the surviving entity, or control of WWC is
transferred to another entity, and upon any of the foregoing events or
within one year thereafter WWI reasonably deems the transferee,
surviving entity or controlling entity, as the case may be, to be an
entity that is detrimental to The Xxxxxxxx Companies, Inc. or any
Affiliate;
then, in the case of subpart (i), this Agreement may be terminated by mutual
agreement, or in the case of subparts (ii), (iii) or (iv), this Agreement may be
terminated by the other party providing written notice to that effect (in
addition to any earlier notice required above), which termination shall not
limit any other rights or remedies that a party may have as a result of a breach
of this Agreement. Nothing herein shall be deemed to require that either party
declare a breach and termination of this Agreement as a result of a breach of
any particular CSA, which CSA may be terminated with or without a termination of
this Agreement.
13. Certain Effects of Termination
13.1 Upon the parties' mutual agreement to terminate this Agreement,
(i) WWC shall grant WWI a non-exclusive, perpetual, world-wide license
to manufacture and use Telemetry Radio Products based on the Radio
Technology, as long as WWI pays to WWC a royalty equal to 5% of WWI's
demonstrable manufacturing costs of the radio component of such Telemetry
Radio Products.
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 5 of 9
(ii) WWC shall release all design and manufacturing work product, not
already released, as previously provided in this Agreement.
(iii) WWC shall work in good faith to ensure an orderly transition to a
new manufacturer.
13.2 Upon termination due to the events described in subparts (ii), (iii)
or (iv) of Section 12, to the extent such breach or events are attributable to
WWC, and during the one-year period thereafter, and in order for WWI to
establish another manufacturing relationship, WWI may elect to use, and upon
such election, WWC shall provide, all of WWC's work product, documentation and
Radio Technology, and shall grant to WWI a perpetual, world-wide license to
manufacture and use Telemetry Radio Products based on the Radio Technology, as
long as WWI pays to WWC a royalty equal to 2% of WWI's demonstrable
manufacturing costs of the radio component of such Telemetry Radio Products. To
this end, WWC will immediately turn over all remaining design and manufacturing
work product and documentation to WWI and work in good faith to transfer and
assign to WWI all outside manufacturing contracts relating to any CSAs.
13.3 Termination of this Agreement by a party for reasons set forth in
Sections 12 (ii), (iii), or (iv) shall, at the option of the terminating party,
also terminate all CSAs then in effect between the parties.
14. Confidentiality. The parties acknowledge that they are subject to that
certain Confidentiality Agreement executed between the parties and dated June
25, 1997, a copy which is attached hereto as Exhibit A and the terms of which
are incorporated herein by this reference; provided, however, that Section 8
thereof is hereby amended so as to provide that the confidentiality obligations
and use restrictions shall remain in effect for a period equal to the term of
this Agreement, including any extensions thereof, and for a period of two years
thereafter. The parties further acknowledge that the disclosure of confidential
or proprietary information hereunder shall constitute "Information" (as such
term is used in the Confidentiality Agreement), and that no disclosures shall be
made in violation of such Confidentiality Agreement.
15. Notices. Any notice or other communication herein required or permitted to
be given shall be in writing and may be personally served, sent by facsimile, or
sent by an internationally recognized overnight courier service, and shall be
deemed to have been received when (a) delivered in person or received by
facsimile (as evidenced by a facsimile confirmation sheet) or (b) three (3)
business days after delivery to the office of such overnight courier service
with postage prepaid and properly addressed to the other party, at the following
respective addresses:
To WWC: To WWI:
World Wireless Communications, Inc. Xxxxxxxx Wireless, Inc.
Attention: Xxxxx Xxxx Attention: Xxxxx X. Xxxxxxxxxx
000 Xxxxxx Xxxxxxxx Xxxxx, Xxxxx 000 Xxxxx Union Depot
Xxxx Xxxx Xxxx, Xxxx 00000 000 Xxxx Xxxxx Xxxxxx
Telephone #: (000) 000-0000 Xxxxx, XX 00000
Facsimile #: (000) 000-0000 Telephone #: (000) 000-0000
Facsimile #: (000) 000-0000
or to such other address or addresses as either party may from time to time
designate as to itself by like notice.
16. Patent/Copyright Indemnity.
16.1 WWC agrees it will at its sole cost and expense, defend, indemnify and
hold harmless WWI against all claims, liens, demands, damages, liability,
actions, causes of action, losses, judgments, costs and expenses of every nature
brought against WWI (including investigation costs and expenses, settlement
costs, and attorney's fees and expenses) (collectively, "Claim(s)") to the
extent such Claims arise out of, result from, or are attributable to any alleged
infringement of any present or future patent, copyright, or other proprietary
right (hereinafter called "Intellectual Property") based on WWC's design,
engineering and/or manufacturing activities hereunder or the use of the Radio
Technology provided by WWC pursuant to this Agreement; provided, however, WWI
gives WWC prompt notice in writing of the Claims. WWC shall defend, indemnify
and hold WWI harmless pursuant to this Section during the entire claim process,
regardless of whether the Claim is settled or goes to trial.
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 6 of 9
16.2 If a judgment or settlement is obtained or reasonably anticipated
against WWI's use of any Intellectual Property for which WWC has indemnified
WWI, WWC shall at WWC's sole cost and expense promptly modify the item or items
which were determined to be infringing, acquire a license or licenses on WWI's
behalf to provide the necessary rights to WWI to continue using the Intellectual
Property, or substitute the Intellectual Property with non-infringing
Intellectual Property which provides WWI the same functionality. If none of such
options is commercially reasonable, WWC shall refund any fees paid by WWI for
engineering and design services associated with the infringing Intellectual
Property, and pay to WWI the net book value of the Telemetry Radio Products
affected by the infringing Intellectual Property.
16.3 WWI agrees it will at its sole cost and expense, defend, indemnify and
hold harmless WWC against all claims, liens, demands, damages, liability,
actions, causes of action, losses, judgments, costs and expenses of every nature
brought against WWC (including investigation costs and expenses, settlement
costs, and attorney's fees and expenses) (collectively, "Claim(s)") to the
extent such Claims arise out of, result from, or are attributable to any alleged
infringement of any Intellectual Property (as defined in paragraph 16.1 above)
based on the XxxXxxx Technology or upon any other product or project
specification created by WWI for WWC's design, engineering and/or manufacturing
services other than the Radio Technology; provided, however, WWC gives WWI
prompt notice in writing of the Claims. WWI shall defend, indemnify and hold WWC
harmless pursuant to this Section during the entire claim process, regardless of
whether the Claim is settled or goes to trial.
17. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WHETHER UNDER CONTRACT, TORT OR OTHER CAUSE
OF ACTION, INCLUDING, BUT NOT LIMITED TO ANY DAMAGES, LOSS OR EXPENSES ARISING
FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY HARDWARE OR SOFTWARE,
INCORRECT THIRD PARTY CONTENT, THE OTHER PARTY'S LOST PROFITS, LOST BUSINESS,
LOST DATA, OR LIABILITY OR INJURY TO THIRD PERSONS, WHETHER FORESEEABLE OR NOT
AND REGARDLESS OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. IF THIS PROVISION IS IN CONFLICT WITH OTHER CONTRACTUAL TERMS AND
CONDITIONS, IT IS UNDERSTOOD BY THE PARTIES THAT THIS PROVISION WILL, IN ALL
CASES, PREVAIL. NOTWITHSTANDING ANY OF THE FOREGOING, THE LIMITATION DESCRIBED
ABOVE SHALL NOT LIMIT THE SCOPE OF DAMAGES FOR WHICH WWC HAS AGREED TO INDEMNIFY
WWI IN SECTION 16.
18. Noncompete. For the term of this Agreement (including any extension thereof
mutually agreed upon pursuant to section 11, but excluding any automatic
extension for the limited purpose of completing a CSA under section 11) and for
a period of five (5) years thereafter, WWC shall not (i) directly or indirectly
license the Radio Technology or directly or indirectly manufacture Telemetry
Radio Products for sale to or use by any vendor in the Telemetry Market other
than WWI; or (ii) sell, distribute or otherwise market Telemetry Radio Products
and/or Telemetry Systems other than WWI's in the Telemetry Market. WWC retains
the right to market its Radio Technology in markets other than Telemetry
Markets.
19. Force Majeure. If either party's performance under this Agreement or any
obligation hereunder is prevented, restricted or interfered with by causes
beyond such party's reasonable control, including earthquakes, landslides,
failure of power, riots, insurrection, war, acts of God or other reason of like
nature that could not have been reasonably anticipated by the non-performing
party as of the Effective Date and that cannot be reasonably avoided or
overcome, then such party shall be excused from such performance on a day-to-day
basis to the extent of such prevention, restriction or interference. The
affected party shall use reasonable efforts under the circumstances to avoid or
remove such causes of non-performance and shall proceed to perform with
reasonable dispatch whenever such causes are removed or cease, provided that the
nonperforming party gives the other party written notice of such cause promptly,
and in any event within fifteen (15) calendar days of discovery thereof.
20. Improper Use of Funds. WWC agrees that it will not use any funds received
under this Agreement for illegal or otherwise improper purposes. An improper
purpose would include, for example, payment of commissions, fees or
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 7 of 9
rebates to an employee of WWI and/or favoring such employee with gifts of
entertainment of significant cost or value. If WWI has reasonable cause to
believe that the provisions of this section have been violated, WWC agrees to
provide WWI, upon written request to WWC, access to sufficient records and
information to allow WWI to ensure compliance with the provisions of this
section.
21. Alternative Dispute Resolution. The parties will attempt in good faith to
resolve any controversy or claim arising out of or relating to this Agreement
within sixty (60) days by negotiations between senior executives of the parties
who have settlement authority and who do not have direct responsibility for the
administration of this Agreement.
The disputing party shall give the other party written notice of the dispute in
accordance with the notice provision of this Agreement. The other party shall
submit a response within twenty (20) days after receiving said notice. The
notice and response shall include (a) a summary of the party's position and a
summary of the evidence and arguments supporting its position, and (b) the name
of the executive who will represent the party. The executives shall meet at a
mutually acceptable time and place within thirty (30) days of the disputing
party's notice and thereafter as often as they deem reasonably necessary to
resolve the dispute.
If the matter has not been resolved within sixty (60) days of the disputing
party's notice, either party may initiate other means of alternative dispute
resolution of the controversy in accordance with the appropriate rules and
procedures of the Center for Public Resources or American Arbitration
Association or pursue its rights and remedies within a court of competent
jurisdiction.
22. General Provisions.
22.1 Announcements. The parties shall consult and confer with each
other prior to making any public announcement concerning any of the
transactions contemplated in this Agreement. Neither party shall make
or issue any public announcement concerning the subject matter of this
Agreement without ten days written notice to the other party or the
prior written consent of the other party.
22.2 Applicable Law. The validity, construction, and performance of
this Agreement shall be governed by and construed in accordance with
the laws of the State of Oklahoma, without regard to the principles of
conflict of laws.
22.3 Waiver. No waiver of any right or remedy on one occasion by either
party will be deemed a waiver of that right or remedy on any other
occasion.
22.4 Assignment. WWC shall not assign this Agreement or its rights or
obligations herein without the prior written consent of WWI.
22.5 Survival. Except as provided herein the provisions of Sections 5
(Property Rights), 8 (Warranties), 9 (General Indemnity), 10
(Representations and Warranties), 13 (Certain Effects of Termination),
14 (Confidentiality), 16 (Patent/Copyright Indemnity), 17 (Limitation
of Liability), 18 (Noncompete) and 21 (Alternative Dispute Resolution)
remain in effect indefinitely and shall survive the termination of this
Agreement.
22.6 Attorneys' Fees. Each party agrees to pay the other's reasonable
attorneys' fees and costs of litigation if the original party, for any
cause whatsoever, brings suit against the other party and the other
party is finally adjudicated not to have liability.
22.7 Compliance with Laws. The parties will comply, at their own and
separate expense, with all statutes, regulations, rules, ordinances,
and orders of any governmental body, department or agency that apply to
or result from their respective obligations under this Agreement,
provided, however, that the failure of either party to so comply will
not constitute a breach of this Agreement or any CSA between the
parties unless it materially affects performance of obligations owed
hereunder or under a CSA.
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 8 of 9
22.8 Headings. The headings provided in this Agreement are for
convenience only and will not be used in interpreting or construing
this Agreement.
22.9 Complete Agreement. Both parties acknowledge that they have read
this Agreement and any attachments or schedules hereto, understand them
and agree to be bound by their terms, and further agree that they are
the complete and exclusive statement of the Agreement between the
parties, which supersede all proposals oral or written and other
communications between the parties relating to the subject matter
hereof. The parties further agree that all changes to this Agreement
must be in writing and signed by the parties in order to bind them.
22.10. Severability. If any term or provision of this Agreement shall
to any extent be invalid or unenforceable, said term or provision shall
be severable and the remainder of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
WHEREFORE, the parties have entered into this Agreement as of the date first set
forth above.
XXXXXXXX WIRELESS, INC. WORLD WIRELESS COMMUNICATIONS, INC
dba Xxxxxxxx Telemetry Services
By: _______________________________ By: _______________________________
Name: _____________________________ Name: _____________________________
Title: ____________________________ Title: ____________________________
--------------------------------------------------------------------------------
WWC/WWI Technical Development and Marketing Alliance Agreement
(Amended and Restated) Page 9 of 9
