10.20
Technology Reseller Agreement between eLutions, Inc. and Company
dated January 31, 2005
TECHNOLOGY RESELLER AGREEMENT
This Technology Reseller Agreement ("Agreement") is made as of this 31 day
of January 2005 between eLutions, Inc., a Delaware corporation and OnScreen
Technologies, Inc. a Colorado corporation (the "Company").
eLutions and the Company hereby agree as follows:
1. Purpose. The purpose of this Agreement is to set forth the terms and
conditions under which eLutions is willing to develop and supply and the
Company is willing to market, promote, and resell certain eLutions'
wireless Products to end-users ("Customers") with whom the Company has an
existing relationship, with whom the Company develops a relationship, or
to whom the Company has been directed by eLutions. Products are described
in Exhibit A, with pricing, and shall be updated from time to time by
eLutions acting in its sole discretion; provided, however, that the cost
to the Company for the initial non-cancellable, non-refundable hardware
order will not exceed the amounts indicated on Exhibit A without the
written consent of the Company.
2. Definitions. As used herein, the following terms shall have the designated
meanings: "Commission" for any software Product means the Commission set
forth on Exhibit A.
"Market" means signage applications in the public safety and commercial
markets and applications in the automatic vehicle location ("AVL") market.
"Person" means an individual, partnership, joint venture, corporation,
trust, estate, incorporated organization or other legal entity or any
governmental department, agency or other body or subdivision thereof.
"Product(s)" means the products and services offered for sale by eLutions
as set forth in Exhibit A.
"Retail Price" means the prices to end users of the Products as set forth
on Exhibit A, and shall be updated from time to time by eLutions acting in
its sole discretion; provided, however, that the Retail Price for the
initial non-cancellable, non-refundable order will not exceed the amounts
indicated on Exhibit A without the written consent of both parties.
"Warranties" for Products means the warranties contained in Exhibits B and
C for hardware Products and software Products, respectively.
3. Appointment. eLutions appoints the Company as its non-exclusive
distributor worldwide (the "Territory") for the Market for the purpose of
marketing and selling Products to Customers in accordance with terms and
conditions set forth in this Agreement.
3.1 Independent contractor. Nothing in this Agreement shall constitute
or be deemed to constitute a franchise, license, joint venture,
partnership, agency or relationship of employment between the
parties. The Company acknowledges that it is acting solely as an
independent contractor and has no authority or power to bind
eLutions.
3.2 No subagents. The Company shall not appoint any subagent,
sub-distributor, or similar Person to promote the sale of Products
in the territory or otherwise to perform any of the Company's
obligations without prior written approval of eLutions which
approval shall not be unreasonably withhold. eLutions shall respond
to such notice of intended appointment within two business days from
receipt of said notice. Failure of eLutions to respond within the
said 2 business days shall be
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approval of the intended appointment. The current distributor
agreements listed on the "Pending Distributor Agreements" attached
hereto as Exhibit D are approved by eLutions.
4. Responsibilities of the Company. The Company will use commercially
reasonable efforts and devote such time as may be reasonably necessary, to
conduct an aggressive selling program and to promote the sale of the
Products in the Territory and the Market.
4.1 Initial Hardware Order and Deposit. The Company hereby places a
non-cancellable, nonrefundable order for an aggregate of 2,000
iR1600 modems and/or the satellite versions of the iRX modem (in
each case, with or without GPS and including bundled accessories as
specified on Exhibit A) for delivery over a period of 30 months
following the date of this Agreement, at the prices set forth in
Exhibit A and with the first deliveries to occur on or before March
1, 2005 and the first deliveries of the satellite version of the iRX
modem by June 1, 2005. Within ten (10) days of the date of this
Agreement, Company will provide eLutions a non-refundable deposit of
$87,500. An additional $87,500 deposit shall be paid at such time as
eLutions demonstrates functionality of the wireless system described
hereafter in sections 5.6 and 5.8. Said $175,000 deposit shall be
applied pro rata toward payment of the first 1,000 modems. Any
deposit balance remaining at December 2005 shall be applied toward
any balance of payment due to eLutions from Company. In addition,
the Company shall (i) maintain a reasonable inventory of Products in
order to satisfy its anticipated sales thereof, (ii) use its best
efforts to provide adequate and timely delivery of Products to its
customers, and (iii) during the term of this Agreement, fulfil all
of its Market customers' wireless modem requirements with Products
offered by eLutions. Within 5 days from payment of the said deposit,
eLutions shall deliver to Company two bundled iR1600 modems for
integration testing. After completion of testing, Company shall
return to eLutions said two modems in like new condition.
4.2 Non-Compete. During the term of this Agreement, the Company will not
design, manufacture, support, sell, or otherwise arrange for the
manufacture and sale of fixed modem products or any hardware or
software products competing with the Products, nor will the Company
facilitate or enable others in so doing. During the term of this
Agreement, eLutions will not (1) design, manufacture, support, sell,
or otherwise arrange for the manufacture and sale of LED signs,
including, but not limited to RediAlertTM and RediAdTM signs
competing with the sign products of Company, nor facilitate or
enable others in so doing, nor (2) directly or indirectly, use the
RediAlertTM RediAdTM wireless sign technology referred to in Section
5.6 below in competition with the Company nor contract with others
to do so.
4.3 Limited Exception to Non-Compete. Each party agrees to not use
supplies, material services or products of a competitor of the other
party when such supplies, material or products are available from
the other party. The only exception to this covenant is: in the
event that an end-use customer of Company requires use of a specific
product that competes with eLutions or in such locations where
eLutions is not readily available.
4.4 Marketing and Promotion. The Company will use reasonable commercial
efforts at all times diligently and faithfully to market, promote,
sell and distribute the Products to all potential customers through
its channels.
4.5 Recruiting and Training. The Company will recruit, train, develop
and maintain sales, customer service, and delivery employees or
subcontractors of the quality and such numbers as are reasonably
required to maintain customer satisfaction levels.
4.6 Records. The Company will keep and maintain complete and accurate
records of all sales and deliveries of Products including quantities
of Products purchased, and dollar amounts invoiced, all
solicitations for sales of Products; and all comments and complaints
received from any Person concerning Products. eLutions shall have
the right to inspection on reasonable advance notice of the
Company's records to verify compliance with this Agreement, but such
inspection may be
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made only during regular business hours and is to be confined to
those records relating to activities under this Agreement.
4.7 Special Notice. The Company will report promptly to eLutions any
information received by it concerning (i) possible infringement off
the patents, trademarks, copyrights, or other intellectual property
rights of eLutions, or unfair competition with the Products by any
Person, (ii) opportunities for the development or marketing of new
or additional Products, (iii) competitive pricing information and
(iv) any other legal or commercial event or development relating to
the marketing of the Products and the performance of this Agreement.
4.8 Conduct of business. The Company will establish, conduct and
maintain its business at all times and in every respect in full
compliance with all applicable laws, directives, regulations and
ordinances.
5. Responsibilities of eLutions.
5.1 Delivery and information. eLutions shall at all times exert its
diligent, good faith efforts to deliver any ordered Products to the
Company on the terms and conditions set forth herein.
5.2 Changes to Products and Pricing. After 90 days written notice to
Company, eLutions may, at any time in its sole discretion.
5.2.1 Establish and alter the prices and terms of payment at which
it sells any of the Products to the Company, subject to the
provisions of Section 4.1.
5.2.2 Add Products to and remove them from Exhibit A, or alter the
pricing thereof, subject to the provisions of Section 4.1.
5.2.3 If Company objects to such price and term of payment
alteration or alteration of the pricing thereof and eLutions,
within 30 days after receipt of written notice of such
objection, fails to cure the Company's objection, the Company
may terminate this contract.
5.2.4 If Company elects to not terminate this contract, then for the
discontinued Products, eLutions shall be obligated to have
available service and sufficient replacement parts for no less
than one year after said discontinuance.
5.3 Advertising and promotional materials. eLutions shall provide
electronically upon the Company's request at no charge the necessary
advertising and promotional materials related to the Products,
including but not limited to specification sheets, brochures
advertising reprints and related materials. eLutions may also
prescribe the manner in which trademarks and logos are to be used.
eLutions shall also provide information relative to the Company's
participation in such advertising programs, allowances and other
arrangements as eLutions makes available to its distributors during
the term of hereof.
5.4 Marketing and promotion plans. eLutions shall develop and share the
appropriate marketing and promotion plans in order to support the
launching of new Products as well as to support the
commercialisation of existing Products.
5.5 Training& eLutions shall provide to the Company without charge
appropriate training (not to exceed 2 days for a group not to exceed
six persons) and materials for each Product in order to maximize the
Company's ability to service the Territory. This training shall
occur either at a location designated by eLutions or, at the option
of the Company, at one or more of the Company's offices. If the
Company elects to have the training sessions at their corporate
headquarters, the Company shall reimburse eLutions for travel and
lodging. If the Company
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desires additional or supplemental training, eLutions agrees to
provide such training at $75 per hour at a location and time to be
mutually agreed, plus reimbursement of travel and lodging as
necessary.
5.6 RediAlertTM RediAdTM Software Development, Demonstration, and
Branding. eLutions will develop the Company's "RediAlertTM RediAdTM"
wireless communication software to provide for a graphical interface
to allow the Company's customer's RediAlertTM RediAdTM signs to be
programmed and viewed over eLutions' ASP server and to allow sign
messages to be changed over the ASP service. Customers of the
Company who subscribe to RediAlertTM will be directed to a
RediAlertTM web page and will not be able to view the RediAdTM web
page unless they are provided with the secure password, and
Customers of the Company who subscribe to RediAdTM will be directed
to a RediAdTM web page and will not be able to view the RediAlertTM
web page unless they are provided with the secure password. On or
about March 1, 2005, eLutions will demonstrate such RediAlertTM
RediAdTM wireless sign features to the Company on eLutions' ASP
service, provided that the Company provides the necessary technical
information for eLutions to complete the software development.
eLutions will allow RediAlertTM RediAdTM wireless sign customers to
use the software through eLutions' ASP server or to host the service
themselves, subject in the latter case to the customer executing an
ASP hosting license. eLutions will co-brand the RediAlertTM RediAdTM
wireless ssign software with the Company's logo and service xxxx at
no additional charge. RediAlertTM RediAdTM wireless sign technology
that is totally developed by eLutions shall be the sole property of
eLutions.
5.7 Future Product Discount. For all future eLutions Products that may
be used with the Company's wireless sign technology, eLutions will
provide to Company a 27% discount from its published MSRP/list
price, provided that such reduction does not trigger a "best
customer" clause in another contract which would require eLutions to
offer a similar discount to another customer. In the event of such
"trigger" effect, the discount shall be equal to the "best customer"
clause in the "best customer" contract. When "best customer" pricing
exceeds the discount percent noted above, eLutions shall provide to
Company pricing no less than "best customer" pricing for commercial
sales extended to any customer under similar commercial and volume
sales situations.
5.7.1 Should an alternative solution become available from another
vendor that is the functional equivalent of eLutions' modem
solution and is available to Company for more than 30% below
the eLutions contracted price to Company, eLutions shall enter
into good faith negotiations with Company to reduce the price
to Company so as to ensure competitive viability.
5.8 Minimum Functionality. The Products collectively will provide, at a
minimum, the following functionality (in each case, subject to the
availability of a cellular or satellite network and an internet
connection):
5.8.1 From a web based ASP hosted by eLutions, permit the remote
control, real time or buffered, of the Company's TM
RediAlertTM and RediAdTM signs.
5.8.2 Provide a hardwired interface with the Company's current
controller, which the Company will modify to facilitate the
interface.
5.8.3 Transmit sufficient secure wireless electronic signal to drive
the Company's LED RediAlertTM and RediAdTM displays, including
full motion and sound, which signal shall be fully controlled
wirelessly and remotely through input from a desktop or laptop
computer with internet access (and, after May 1, 2005, also
from a pocket PC or PDA).
5.8.4 Have return secure signal capability so as to allow the remote
user to electronically be informed of the location of the
display (provided that the Company uses the GPS version of the
wireless modem), view the data and video displayed on the LED
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display, show the time of each run of the display, and
sound/display an alarm when the scheduled display is off
schedule.
6. Trademarks.
6.1 No transfer of interest. This Agreement is not intended to and shall
not be construed to give the Company any right, title, franchise or
other interest in any of the trademarks, except as provided for in
Section 6.2 of this Agreement, or as specifically authorized by
eLutions in writing.
6.2 Trademark use. During the term of this Agreement the Company is
authorized to use the appropriate trademarks of eLutions in
connection with the Company's sale, advertisement and promotion of
Products. Upon termination of this Agreement and sale or disposition
of any Products remaining in inventory, the Company shall cease to
use any such trademarks and shall, within thirty (30) days, remove
any reference to eLutions from its advertising and promotional
material unless otherwise agreed by eLutions in writing.
6.3 Trademark ownership. The Company acknowledges that the trademarks
under which the Products are marketed are the property of eLutions,
with the exception of the Company branding referred to Section 5.7
above.
7. Prices and Products; F.O.B. Other than the fixed prices for the initial
hardware order referred to in Section 4.1, prices and Product availability
may be changed by eLutions from time to time. In the event the Company
sells Products without bundling them with non-Product offerings, the sale
prices to the customer shall be the Retail Price set forth on Exhibit A.
All prices in Exhibit A are F.O.B. eLutions' shipping point.
8. Terms of Payment
8.1 Terms and Condition of sales. All orders for Products are subject to
appropriate credit review by eLutions' Finance Department. Orders
are not considered accepted until they are acknowledged by eLutions.
All orders must include a delivery schedule, adjustments to which
require thirty (30) days notice. Additions to any order after thirty
(30) days will be considered and priced as separate orders. By
placing each order hereunder, the Company confirms its agreement
with and acceptance of all such terms and conditions. In the event
of any discrepancy between the provisions set forth herein, on the
one hand, and any purchase order, order confirmation, or other
communication between the parties, whether or not acknowledged by
the other party, the provisions hereof shall prevail. All orders
placed hereunder are binding, noncancellable, and non-refundable.
8.2 Payment. The Company shall make payment for Products to eLutions
within thirty (30) days following receipt of an invoice from
eLutions. eLutions may invoice upon shipment of each order.
8.3 Commission on Software. For all sales of software Products
hereunder, eLutions shall pay the Company the Commission within 30
days of receipt by eLutions of payment from the customer.
8.4 Modification of Products., eLutions will give Company no less than
30 days written notice of all engineering modifications that
significantly impact Products in the Company's inventory if such
changes affect form, fit or function, and if the modifications are
reasonably likely to preclude or materially limit the Company's
ability to sell any Products held by it once the engineering
modifications are implemented.
8.5 Return material authorization. A return material authorization will
be issued by eLutions within thirty (30) days of any request for the
same by the Company when required in a connection with any permitted
return under this Agreement. A return material authorization will
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only be issued during the relevant warranty period for Products with
defects in manufacturing in need of repair or replacement unless
otherwise specifically covered in this Agreement.
8.6 Warranties. Limited warranties cover eLutions hardware and software
Products and are described in Exhibits B and C, respectively, and
such Warranties may be changed from time to time for future
purchases of Products and new Products by mutual written agreement
which written approval of Company shall not be unreasonably
withheld.
9. Disclosure of Proprietary Information. Each party (a "Receiving Party")
shall receive and use all information received by it from the other (the
"Disclosing Party") in writing and marked "Proprietary", "Confidential" or
the like, oral information subsequently reduced to writing and so marked,
and all other confidential information and trade secrets relating to the
Products and Services, including but not limited to, methods of
manufacture, secret processes, price lists and customer lists (hereinafter
referred to as "Confidential Information"), for its internal uses relating
to the promotion and sale of Products by the Company, shall not disclose
such Confidential Information to any Person or Persons except for
employees, contractors and third party consultants of such Receiving Party
who have a need to know such information to carry out the purposes of this
Agreement, and shall treat such Confidential Information with the same
standard of care as the Receiving Party observes toward its own
confidential information (but in no event less than a reasonable degree of
care). In addition, the Company shall comply with all other
confidentiality requirements imposed upon eLutions from time to time
pursuant to third party agreements, as notified to the Company by eLutions
from time to time.
Notwithstanding the above, a Receiving Party shall not be liable for
disclosure of any Confidential Information if the same:
(a) was in the public domain at the time it was disclosed;
(b) was known to the Receiving Party prior to the time of
disclosure;
(c) was disclosed with the prior written approval of the
Disclosing Party;
(d) can be demonstrated to have been independently developed by
the Receiving Party without use of information supplied by the
Disclosing Party;
(e) becomes known to Receiving Party from a source other than
Disclosing Party without breach of this Agreement by the
Receiving Party or breach by a third party of any legal
obligation.
All Confidential Information disclosed pursuant to this Agreement shall be
and remain the property of the Disclosing Party and the Confidential
Information and any copies thereof shall be promptly returned to the
Disclosing Party upon written request, or destroyed at the Disclosing
Party's option.
10. Initial Term; Termination.
10.1 Term and renewal. This Agreement shall commence on the date first
listed above and shall continue until the close of business on the
fifth-year Anniversary of that date, (the "Initial Term") unless
earlier terminated pursuant to the terms hereof. Termination of this
Agreement shall no way affect the status of any orders outstanding
as of the effective date of such termination.
10.2 Termination for breach. Either eLutions or the Company may terminate
this Agreement in the event of a material breach of its terms by the
other party, by providing (30) days advanced written notice. In case
of a material breach by either party, the party that committed the
breach shall have a right to cure the breach within thirty (30) days
(except in the case of a payment default by the Company, in which
event the time to cure shall be five (5) days) and perform
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under this Agreement. In that regard, both parties acknowledge that
neither party shall in any way be liable to the other for any loss,
expense, or damage (including special, consequential, or incidental
damages) under this Agreement or by reason of any termination of
this Agreement.
10.3 Termination for bankruptcy or insolvency. If either party files a
petition in a bankruptcy or makes an assignment for the benefit of
creditors or if any involuntary petition in bankruptcy or petition
for an arrangement of debts is entered in a court or consented to by
either of the parties or a receiver be appointed for the business of
either party, or at any part thereof, and the said involuntary
petition for an arrangement or appointment of a receiver is not
vacated or discharged within sixty (60) days or if either party
discontinues its operations for any reason whatsoever, the other
party may immediately terminate this Agreement.
11. Events Following Termination.
11.1 Obligations upon termination. Upon the expiration or termination of
this Agreement for any reason, the following shall occur.
11.1.1All rights, licences, privileges and obligations granted or
received by the parties under this Agreement shall immediately
cease and terminate, except as specifically preserved,
extended or imposed by a provision of this Section 11.
11.1.2Following the sale or disposition of any Products remaining
in inventory at the time of the termination, the Company shall
cease to use any such trademarks of eLutions and shall, within
thirty (30) days, remove any reference to eLutions from its
advertising and promotional material.
11.1.3The Company may return all unsold Products in accordance with
Section 12, only in the event of termination by the Company
due to an adjudicated material breach by eLutions. In the
event of termination for any other reason, eLutions shall
consider in its sole discretion whether to accept return of
Products (less a restocking fee).
11.1.4The indebtedness of either party to the other not already due
shall become immediately due and payable as of the effective
date of termination of this Agreement
11.1.5The Company shall return to eLutions all unused advertising
and promotional materials in the possession of the Company
which are not obsolete and in their original packaging and
otherwise dispose of as eLutions may direct, all sales
manuals, price list, data sheets, technical materials,
advertising materials, and other data relating to the
Products, eLutions, or eLutions' customers that may have been
furnished to the Company (and shall certify such disposal to
eLutions).
11.2 Survival after termination or expiration. The obligations of
eLutions and the Company under Sections 6.2, 8.1, 8 .2, 9, 11, 12,
14, and 15 shall survive termination or, expiration of this
Agreement.
12. Return of Products on Termination; Upon any termination of this Agreement,
the Company shall (i) if the termination was due to an adjudicated
material breach by eLutions, return to eLutions any or all Products not
purchased by the Company and (ii) pay eLutions as stated in paragraph 8.1
for all Products which have been sold to the Company as of effective date
of termination. The Company will continue to aid in the sale of the
Products to reduce the quantity of goods returned. eLutions shall pay all
shipping charges on such repurchases.
Notwithstanding the foregoing, eLutions shall be required to accept only
those Products which are in the original unopened packaging, are unused
and undamaged, are not out of date, and are in good merchandisable
condition, after testing and inspection by eLutions.
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No termination of this Agreement shall affect any obligation of the
Company to pay amounts due hereunder, and all such payments shall be made
when due in accordance with this Agreement.
13. Special Purchases. eLutions and the Company may, at any time during the
term of this Agreement, enter into separate agreements for the special
purchase of the Products, including non-standard Products and Products in
greater quantities than those set forth in the then current Price List,
and such agreements shall be subject to all terms and conditions hereof,
unless otherwise agreed in writing.
14. Governing Law and Arbitration. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without
regard to its provisions concerning conflicts of law.
The parties hereby agree that in the event any of the terms and conditions
contained in this contract must be enforced by reason of any failure of
observance or of performance by any of the parties hereto, in each such
instance, the parties to this Agreement agree that exclusive jurisdiction
and venue shall properly lie in the Circuit Court of the State of Florida,
in and for Hillsborough County, Florida, or in the United States District
Court for the Middle District of Florida (Tampa Division), with respect to
any legal proceedings arising from this Agreement.
15. Miscellaneous.
15.1 Relationship of Parties. The relationship between the parties hereto
shall be that of independent contractors, each being in full control
of its own business. Under no circumstances shall either party have
the right or authority to act or make any commitment on behalf of or
to bind the other or represent the other as its agent in any way.
Nothing in this Agreement shall be construed as creating any rights,
benefits or interests in a Person not a party to this Agreement.
15.2 Assignment. This Agreement may not be assigned partially or
completely by either party without the prior written consent of the
other, which shall not be unreasonably withheld. This Agreement
shall be binding upon and inure to the benefit of the parties hereto
and their successors and assigns. For purposes hereof, the term
"assign" shall include, without limitation, a merger, sale of assets
or business, or other transfer or change of control by operation of
law or otherwise. Notwithstanding the foregoing, eLutions may assign
its rights and obligations hereunder to its parent corporation,
Engage Networks, Inc.
15.3 Authority. Both parties represent and warrant to each other that
they have the right and lawful authority to enter into this
Agreement for the purposes herein and that there are no other
outstanding agreements or obligations inconsistent with the terms
and provisions hereof.
15.4 Entire Agreement., This Agreement contains the entire understanding
of the parties with respect to the subject matter hereof and
supersedes all prior agreements relating thereto, whether written or
oral, between the parties. Amendments to this Agreement must be in
writing and signed by the duly authorized officers of the parties.
15.5 No Implied Waivers. The failure of either party at any time to
require performance by the other of any provision hereof shall not
affect the right of such party to require performance at any time
thereafter, nor shall the waiver by either party of a breach of any
provision hereof be taken or held to be a waiver of the provision
itself.
15.6 Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof in that
jurisdiction or affecting the validity or enforceability of such
provision in any other jurisdiction.
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15.7 Force Majeure. Neither party shall be liable for any failure or
delay in performing its obligations under this Agreement, or for any
loss or damage resulting there from, due to causes beyond its
control, including but not limited to, acts of God, the public
enemy, riots, fires, sabotage, terrorist activity, natural
catastrophes, epidemics or part unavailability. In the event of such
failure or delay, the date of delivery or performance shall be
extended for a period not to exceed the time lost by reason of the
failure or delay; provided that the party affected by such delay is
using reasonable commercial efforts to mitigate or eliminate the
cause of such delay or its effects.
15.8 Notices. Any and all notices and communications permitted or
required to be given hereunder shall be deemed received: (i) upon
actual delivery, if delivery is by band; or (ii) upon receipt by the
transmitting party of confirmation or answer back if delivery is by
facsimile; (iii) one (1) business day after delivery to a recognized
national overnight courier, postage prepaid; or (iv) three (3)
business days after delivery into the United States mail if delivery
is by postage paid registered or certified mail with return receipt
requested. Each such notice shall be sent to the respective party at
the address indicated below or at any other address as the
respective party may designate by notice delivered pursuant hereto.
If to eLutions: eLutions, Inc.
0000 Xxxx 0xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
Attention: Managing Director-Wireless Applications
Telephone:(000) 000-0000
Facsimile: (000) 000-0000
If to the Company:
OnScreen Technologies, Inc.
000 0xx Xxxxxx, Xxxxx Xxxxx 000
Xxxxxx Xxxxxx, Xxxxxxx 00000
Attention: Xxxx "JT" Thatch, CEO/President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15.9 DNAR, AAR. eLutions is a Nextel Data National Authorized Reseller
("DNAR") of Nextel's wireless telecommunications services. eLutions
will request Nextel approval of the Company as an Associate
Authorized Representative. If Nextel approves such request, the
Company will be required to sign a written agreement in form and
substance reasonably satisfactory to Nextel, to be bound by the
provisions of eLutions' DNAR agreement with Nextel. In such event,
the Company and eLutions will split DNAR proceeds generated through
the Company 50150.
15.10 Limitation of Liability. EXCEPT FOR LIABILITY UNDER SECTION 9,
NEITHER PARTY, ITS AFFILIATES NOR ANY PARTNERSHIP IN WHICH ANY OF
THE FOREGOING ENTITIES IS A GENERAL PARTNER SHALL BE LIABLE FOR ANY
LOSS OF PROFITS, LOSS OF USE, OR INDIRECT, SPECIAL, PUNITIVE,
RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN
CONNECTION WITH, OR ARISING OUT OF FAILURE TO FURNISH, OR THE
FURNISHING OF PRODUCTS, SERVICES, ASSISTANCE OR RECOMMENDATIONS
UNDER THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR LIABILITY UNDER SECTION 9,
EACH PARTY'S TOTAL LIABILITIES IN CONNECTION WITH THIS AGREEMENT,
WHETHER ARISING UNDER CONTRACT OR OTHERWISE, ARE LIMITED TO THE
PAYMENTS REQUIRED TO BE MADE BY THE COMPANY TO ELUTIONS UNDER THIS
AGREEMENT IN THE YEAR IMMEDIATELY PRIOR TO THE CLAIM (OR, IF THE
CLAIM IS MADE IN THE FIRST YEAR OF THE TERM, THE PAYMENTS REQUIRED
TO BE MADE IN SUCH YEAR) SPECIFICALLY RELATING TO THE PRODUCTS AND
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SERVICES DELIVERED OR TO BE DELIVERED HEREUNDER, REGARDLESS OF THE
NATURE OF THE CAUSE OF ACTION ASSERTED.
15.11 Indemnity. Each party agrees to indemnify the other party, its
subsidiaries, affiliates, parent and any partnership in which any of
the foregoing entities is a general partner from any actions, suits,
hearings, proceedings, judgments, liabilities, damages, claims or
demands (including the costs, expenses and reasonable attorney fees
on account thereof) that may be made: (i) by anyone, including
without limitation the indemnifying party's employees, subrogates,
invitees or persons not a party hereto, for injuries to persons or
damages to property including theft, as a result of, or in
connection with the performance of this Agreement and directly or
indirectly caused, in whole or in part, by the acts or omissions,
negligent or otherwise, of the indemnifying party or a subcontractor
or an agent of the indemnifying party or an employee or any one of
them; or (ii) by persons furnished by indemnifying party or any
subcontractors under Worker's Compensation or similar acts; or (iii)
by any person not a party hereto for any breach of any provision of
this Agreement by the indemnifying party unless said breach was
waived in writing by the other party. In addition to these indemnity
obligations, at the other party's request, the indemnifying party
agrees to defend against any such liability, claim or demand. Each
party agrees to notify the other party promptly of any written
claims or demands which might reasonably be expected to invoke these
indemnification provisions.
15.12 Counterparts. This Agreement may be executed in one or more
counterparts, including by facsimile, all of which when duly
executed constitute a single document.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above set forth.
ONSCREEN TECHNOLOGIES, INC.
By: /s/
-----------------------------------
Name: Xxxx "JT" Thatch
Title: CEO/Presodent
Date:
ELUTIONS, INC.
By: /s/
-----------------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Managing Director-Wireless
Applications
Date:
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EXHIBIT B
Limited Warranty - Hardware
1. Warranty Service:
A. eLutions warrants its hardware products to original purchasers of
the products, purchasing through eLutions or its authorized dealers,
against defects in material and workmanship occurring under normal
use and service from the date of purchase for a twelve (12) month
period. Warranty obligations may be performed only by eLutions or
its authorized representatives.
B. eLutions will, at its election, either repair or replace, with a
reasonably equivalent new or remanufactured part, any parts of the
product that fail to operate properly for their intended use if such
failure is due to a defect in material or workmanship. This warranty
covers parts and labor.
C. You must provide proof that you have purchased the product from
eLutions or an authorized dealer to be eligible for coverage under
this warranty.
2. Exclusions From Coverage: This Warranty does not apply if the product has
been misused, neglected, improperly installed (including failure to use the
Approved Components described in the web site listed on the reverse hereof) or
maintained, and excludes damage due to repair or alteration by a party
unauthorized by eLutions, or accidental or unusual deterioration or degradation
of the Product or parts thereof due to a physical environment beyond the
requirements of the Specifications. This Warranty does not cover normal wear and
tear, defects in appearance, cosmetic scratches or other cosmetic damage to
surfaces that do not inhibit proper operation of the product. For any products
that fail to comply with the Warranty solely due to any defects in circuit
boards supplied by third parties, eLutions shall replace such products with
products from its warranty replacement inventory, but eLutions shall be
otherwise relieved of remedying such products; provided, however, eLutions shall
use commercially reasonable efforts to mitigate or eliminate such failures and
to remedy such failures.
3. Limitations: ELUTIONS IS NOT RESPONSIBLE FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES RESULTING FROM BREACH OF ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING
DAMAGE TO PROPERTY AND, TO THE EXTENT PERMITTED BY LAW, DAMAGES FOR PERSONAL
INJURY. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES INCLUDING IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND HEREBY
EXPRESSLY LIMITS ANY SUCH OTHER WARRANTIES TO THE TERMS AND CONDITIONS OF THIS
WARRANTY.
SOME STATES DO NOT ALLOW LIMITATION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR
LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR
EXCLUSIONS MAY NOT APPLY TO YOU.
4. Legal Rights: This Warranty gives you specific legal rights, and you may also
have other rights which vary from State to State.
5. Contact Information: To obtain warranty information, contact an eLutions
service representative at 0-000-000-0000
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LIMITED WARRANTY -HARDWARE
(continued)
Installation and Usage Requirements
BOX CONTENTS
[varies according to hardware product]
ONLINE
Documentation
Additional copies of Installation Guides and Configuration Guide can be
downloaded (at no charge) online at xxx.xxxxxxxx.xxx/xxxxxxxx.
REQUIRED COMPONENTS
[varies according to hardware product]
CONFIGURATIONS AND REQUIRED COMPONENTS:
[varies according to hardware product]
How to Order:
To place an order, please go to www.elutions.comlwireless or contact eLutions'
Wireless Support Center at 0-000-000-0000.
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eLutions, Inc.
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EXHIBIT C
LIMITED WARRANTY - SOFTWARE
Media. eLutions warrants that the encasements or other media in which the
Licensed Software and Software Documentation are delivered by eLutions to
Licensee will be free of defects in material and workmanship. eLutions will
provide a replacement of any such media that does not comply with the warranties
set forth in this Section, provided that Licensee gives eLutions written notice
of such noncompliance within ninety (90) days after eLutions' delivery of the
non-complying media to Licensee.
Performance. eLutions warrants to Licensee that for a period of one (1) year
after purchase of the initial Licensed Software, the Licensed Software will
perform in all material respects the functions described in the applicable
Software Documentation when operated in accordance with the applicable Software
Documentation. eLutions will use commercially reasonable efforts to correct any
Licensed Software that does not comply with the warranties set forth in this
Section (e.g., by the provision of an enhancement to any non-complying eLutions
Licensed Software); provided that Licensee gives eLutions written notice of the
non-compliance within sixty (60) days after learning of such non-compliance.
Exclusions. eLutions' warranties do NOT apply to any non-compliance resulting
from any: (i) items furnished by Licensee or any third party; (ii) use not in
accordance with the applicable Software Documentation; (iii) modification,
damage, misuse or other action of any third party; (iv) combination with any
goods, services or other items provided by Licensee or any third party; or (v)
any failure of Licensee to comply with any applicable Software Documentation.
eLutions does NOT warrant that the Licensed Software or Software Documentation
is free from bugs, errors, defects or deficiencies.
DISCLAIMER NO CONSEQUENTIAL DAMAGES. THE WARRANTIES AND REMEDIES SET FORTH
HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF ELUTIONS AND
REMEDIES OF LICENSEE OR USERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE,
WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY OR NON-COMPLIANCE ACTUAL OR
ALLEGED IN ANY SERVICES, LICENSED SOFTWARE, SOFTWARE DOCUMENTATION, THIRD PARTY
SOFTWARE, DESIGNATED SYSTEM OR OTHER DELIVERABLE UNDER THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING
FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE). ELUTIONS WILL
NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE, OR SIMILAR
DAMAGES OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR USE.
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