NON-EXCLUSIVE RESELLER AGREEMENT


 
This Non-Exclusive Reseller Agreement for purchase and sale of remote monitoring products (hereinafter this “Agreement”) is made effective as of this 26 day of May 2006 (“Effective Date”) by and between ▇▇▇▇▇▇ Corporation, a Delaware corporation, operating through its Broadcast Communications Division with offices located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ (hereinafter “▇▇▇▇▇▇”), and Statmon Technologies Corp., a Nevada corporation, with offices located at ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (hereinafter “Statmon”).
 
WHEREAS Statmon manufactures and supplies the Products (as hereinafter defined); and
 
WHEREAS, ▇▇▇▇▇▇ manufactures, markets and promotes digital, AM, FM, IBOC and Television broadcast systems and finished products which integrate among other products, network interface and system controllers, other broadcast and data products and components; and
 
WHEREAS, ▇▇▇▇▇▇ wishes to engage in the manufacture, marketing, and sale of digital, AM, FM, IBOC and Television broadcast systems which integrate Statmon’s products and to market, distribute and resell Statmon’s Products worldwide on a non-exclusive basis; and
 
WHEREAS, ▇▇▇▇▇▇ and Statmon entered into a Memorandum of Understanding on November 18, 2005 which has since expired (see copy in Exhibit G) to negotiate the formation of an agreement whereby ▇▇▇▇▇▇ may place purchase orders from time to time with Statmon for the purchase of the Products which Statmon may accept and complete in accordance with the terms of this Agreement.
 
NOW THEREFORE, in consideration of the premises and mutual covenants herein set forth and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

ARTICLE 1 –DEFINITIONS

For purposes of this Agreement, the following terms and their definitions shall apply:

“Affiliate” with respect to any Person, shall mean any other Person directly or indirectly controlling, controlled by, or under the direct or indirect common control with-such Person, including without limitation a corporation’s Subsidiaries, any company of which it is a Subsidiary, and other Subsidiaries of such company.

“ATSC Transport Stream” shall mean a bit stream that is compliant with the Advanced Television Systems Committee Standard.

“Conformance Testing” shall mean the testing and acceptance procedures for the Products as agreed to by the parties and incorporated into an Appendix from time to time.

“Days” shall mean calendar days unless otherwise noted.

“Designated Processors” shall mean the microprocessor units upon which ▇▇▇▇▇▇ may run the Statmon Product for uses in accordance with Article 17 of this Agreement..

“End User” shall mean: (i) with respect to Software and Related Documentation, any third party to whom a sub-license to Use Licensed Materials is granted by ▇▇▇▇▇▇ hereunder in connection with the purchase of Products by such third party from ▇▇▇▇▇▇ for use by such third party and not for resale, and (ii) with respect to Products purchased by ▇▇▇▇▇▇ hereunder, a third party who purchases Products for use by such third party and not for resale.
 
Proprietary
1
 
“Statmon Product” shall mean, Statmon software packages and remote terminal units including those listed in Appendix A, any upgrades, software revisions and any product extensions manufactured by Statmon for ▇▇▇▇▇▇.

“General Release Date” means the time at which Statmon notifies ▇▇▇▇▇▇ that Statmon is ready to ship to ▇▇▇▇▇▇ a specific Product or set of products previously under development.

“Hardware” shall mean remote terminal units, punch down blocks and associated connections.

“Licensed Materials” shall mean any Software and Related Documentation offered under this Agreement for which a license to Use is granted under the terms and conditions of this Agreement.

“New Products” shall mean Products which are added from time to time to Appendix A and designated as “New Products” by the mutual agreement of the Parties.

“Object Code” shall mean that representation of Software in binary form intended to be readily usable by a processor.

“Order” shall mean an order submitted by ▇▇▇▇▇▇ in writing to Statmon for the purchase of Products in accordance with this Agreement.

“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, trust, unincorporated association, entity, governmental body, or any other entity or organization.

“Price Schedules” shall mean Statmon’s official listings and explanations, in written or electronic form, for Products, Licensed Materials, prices, discount plans, discount rates, special price conditions and terms as listed in Appendix A, Products and Prices attached hereto and made a part of this Agreement.

“Products” shall collectively mean the Hardware and Software which comprises the Statmon Products and New Products.

“Related Documentation” shall mean materials in any form useful in connection with Software and/or its use and Products including, but not limited to, flowcharts, logic diagrams and listings, and program descriptions, Specifications and Product manuals.

“Return Material Authorization (RMA) Number” means the authorization number provided by Statmon’s customer service department to ▇▇▇▇▇▇ after ▇▇▇▇▇▇ or its End User has notified Statmon’s customer service department of a deficiency or malfunction in a Product.

“Software” shall mean a computer program in Object Code consisting of a set of logical instructions and tables of information that guide the functioning of a processor. Such program may be contained in any medium whatsoever, including firmware containing a pattern of bits, representing such program. However, the term “Software” does not mean or include such medium.

“Source Code” shall mean the most current representation of Software (as updated from time to time ) incorporating high-level or assembly language that generally is not directly executable by a processor.
 
Proprietary
2
 
“Specifications” shall mean Statmon’s or its vendor’s technical specifications for particular Products or Software furnished hereunder.

“Subsidiary” of a Person means a Person the majority of whose shares or other securities or ownership interests entitled to vote for election of directors or other governing body is now or hereafter owned or controlled by such Person either directly or indirectly, but a Person shall be deemed to be a Subsidiary of such Person only as long as such ownership or control exists.

“Use” with respect to Licensed Materials means loading the Licensed Materials, or any portion thereof, into a Designated Processor for execution of the instructions and tables contained in such Licensed Materials.

Appendices: The following Appendices are incorporated by reference hereunto and form a part of this Agreement:

(a)
  
Appendix A - Products and Prices
(b)
  
Appendix B - Escrow Agreement
(c)
  
Appendix C - Specifications
(d)
  
Appendix D - ReCon Inventory transferred to Axess Inventory
(e)
  
Appendix E - End User License Agreement  
(f)
  
Appendix F - Confidentiality Agreement
(g)
  
Appendix G - Memorandum of Understanding (expired and superseded by this Agreement)

ARTICLE 2 – TERM

This Agreement shall commence on the Effective Date and, except as otherwise provided in Article 24 - Termination, shall continue in effect for a period of three (3) years from the Effective Date of this Agreement (the “Term”). The modification, termination or expiration of this Agreement shall not affect the rights or obligations of either party under any Order or any outstanding ▇▇▇▇▇▇ quotation(s) to an End User which Statmon has approved in writing before the effective date of the modification, termination or expiration, which outstanding quotation shall not extend more than ninety (90) days following any such modification, termination, or expiration.

ARTICLE 3 – SCOPE

3.1 The terms and conditions set forth in this Agreement shall govern any Orders placed by ▇▇▇▇▇▇ during the Term for Statmon Products and Licensed Materials set forth in Appendix A - Products. ▇▇▇▇▇▇ shall have the right to procure Statmon Products and Licensed Materials under this Agreement with respect to Products, to market and resell (subject to the license terms stated herein) the same on a non-exclusive, world-wide basis. Statmon shall remain free to market and sell all Statmon Products and Licensed Materials as it, in its sole discretion, deems appropriate to any customer.

3.2 The Parties may add to Appendix A - at any time, provided that the addition of new Products or Licensed Materials shall not create any purchase obligation on ▇▇▇▇▇▇’ part. The parties may delete any Statmon Product from Appendix A only upon mutual written agreement between ▇▇▇▇▇▇ and Statmon.

ARTICLE 4 – NON-EXCLUSIVE RIGHTS

4.1 The term of all non-exclusive rights and non-exclusive licenses granted to ▇▇▇▇▇▇’ hereunder shall be for the Term of this Agreement unless this Agreement is terminated pursuant to the provisions of Article 24.
 
Proprietary
3
 
4.2 Both parties shall meet on a quarterly basis to have general discussions including, but not limited to, the review of current market conditions, product features, regulatory and competitive climate including pricing, technical features and improvements to new products.

ARTICLE 5 – RESPONSIBILITIES OF THE PARTIES 
 
5.1 In addition to all other obligations of ▇▇▇▇▇▇ under this Agreement, ▇▇▇▇▇▇ shall:

(a) where appropriate, train its End Users in the effective use of the Products and Licensed Materials, including providing any instructional material furnished by Statmon;

(b) inform its customers, of service and maintenance options available from Statmon

(c) report in writing within thirty (30) business days to Statmon all suspected Products and Licensed Materials defects or safety problems and keep Statmon informed of customer complaints.

(d) comply with all applicable requirements of federal, state and local laws, ordinances, administrative rules and regulations.

(e) offer to its End User a warranty for such Products and Licensed Materials on the same terms as the warranty granted to ▇▇▇▇▇▇ from Statmon.

(f) be responsible for all other expenses associated with its personnel’s attendance at training including, but not limited to, travel, lodging and meals. In addition, ▇▇▇▇▇▇ shall be responsible for all travel, lodging and meals expenses associated with the attendance of Statmon personnel at any training session.

(g) pass on sales leads for the Products to Statmon.

5.2 In addition to all other obligations of Statmon under this Agreement, Statmon shall:

(a) review ▇▇▇▇▇▇’ written reports referred to in Section 5.1 (c) and respond with a remedy or proposed remedy to such reports within 14 business days from Statmon’s receipt thereof;

(b) develop and manufacture the Products in compliance, with the Specifications and provide ▇▇▇▇▇▇ with service or replacement for Products in accordance with the terms and conditions of this Agreement.

(c) comply with all applicable requirements of federal, state and local laws, ordinances, administrative rules and regulations including.

(d) provide ▇▇▇▇▇▇ with instructional materials in mutually agreed upon quantities relating to the Products and Licensed Materials for training and educational purposes as needed; and

(e) provide ▇▇▇▇▇▇ with training for the Products and for major Software revisions free of charge at least once a year. In the event ▇▇▇▇▇▇ desires additional training, such shall be provided by Statmon at $150.00 per hour or $1,200 per day.

(f) be responsible for configuration, installation and homologation requirements for the Products worldwide, including all costs, expenses and fees associated with such installation and homologation.
(g) Provide pre-sales support and “first tier” support, after successful software installation, to all End Users that have purchased a support contract from Statmon either directly or through ▇▇▇▇▇▇. First tier is defined as direct technical support to the End User per the terms of the then current support packages provided by Statmon at the time, details of which are available on Statmon’s website ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇▇▇.▇▇▇▇
 
Proprietary
4

h) Pay ▇▇▇▇▇▇ a 10% referral fee for sales leads under 5.1 (g) above on qualified opportunities as defined herein (the “Referral Fee”). A Qualified Opportunity shall be defined as a sales lead communicated by ▇▇▇▇▇▇ to Statmon in writing and accepted as such by Statmon in writing. Statmon can reject a sales lead upon presentation to ▇▇▇▇▇▇ of substantive documentation that it was aware of the sales lead prior to the ▇▇▇▇▇▇ written communication of such lead. The parties will review the Qualified Opportunities periodically and may agree to different terms and conditions on substantial Qualified Opportunities on a case-by-case basis.

ARTICLE 6 – ORDERS

6.1 All Orders submitted by ▇▇▇▇▇▇ for Products and Licensed Materials shall incorporate and be subject to the terms and conditions of this Agreement. To the extent that any terms contained within this Agreement are in conflict with those referenced in any particular Order, the terms set forth herein shall take precedence and control. ▇▇▇▇▇▇ shall issue an Order to Statmon to procure Products hereunder. Any Order submitted pursuant to a firm price quotation shall include such firm price quotation number. All Orders, including electronic Orders, shall contain the information as detailed below:

(i)
  
Complete and correct ship to and ▇▇▇▇ to address;
(ii)
  
The quantity and type of Products and Licensed Materials being ordered;
(iii)
  
The price;
(iv)
  
The requested delivery date in accordance with Statmon’s standard interval for the Products and Licensed Materials being ordered, or, in the event a non-standard interval has been agreed to by the parties, reference shall be made to the specific document agreeing to the interval; and
(v)
  
Reference to this Agreement.
(vi)
  
End-User information, including End User’s name, address, telephone number, contact and call sign.
 
6.2 ▇▇▇▇▇▇ shall have the right to cancel any Order without liability in the event Statmon does not deliver any Products within the then delivery time of the Order except when such a delay is caused by a force majeure event which continues for less than 30 days, or as the parties may agree otherwise in writing.

ARTICLE 7 – PRICES, INVOICES AND TERMS OF PAYMENT

7.1 Statmon will invoice ▇▇▇▇▇▇ all amounts due for Products and Licensed Materials upon shipment or in either event, as soon as practical thereafter in accordance with prices set forth in Appendix A. The Parties agree to review the prices and discuss decreases based on sales volumes. Unless otherwise agreed in writing, ▇▇▇▇▇▇ may elect to pay all such invoiced amounts, less any disputed amounts for receipt by Statmon 2% 10 days or within (30) days of the invoice date.

ARTICLE 8 – DELIVERY; INSPECTION AND TESTING; ACCEPTANCE

8.1 Delivery of Units: Statmon shall deliver the Products to ▇▇▇▇▇▇ or designated End User at the address and according to the respective delivery schedules specified in the Orders.

8.2 Testing of Products by Statmon; Quality Control: Statmon shall have no obligation to develop any New Products. However, should Statmon desire to develop a New Product and seek to have it included within the terms of this Agreement, the following guidelines shall govern the development of such New Product: Statmon shall provide and maintain a quality control, inspection and test system for all Products in accordance with the Specifications and, upon ▇▇▇▇▇▇’ request, issue to ▇▇▇▇▇▇ a certificate as to the compliance of Products with applicable Specifications pursuant to each Product shipment. Statmon shall configure and assemble all Products in accordance with the Orders. Except as specified in Section 8.3 Statmon shall not ship any Product to ▇▇▇▇▇▇ until such Product has satisfied the Conformance Testing. ▇▇▇▇▇▇ shall have the right to inspect and witness Statmon’s testing of the Products at Statmon’s manufacturing facility and ▇▇▇▇▇▇ shall provide all reasonable facilities and assistance for such inspection if at ▇▇▇▇▇▇’ request the testing is to be done at a ▇▇▇▇▇▇ facility. In the event that ▇▇▇▇▇▇ witnesses the Conformance Testing of a New Product at Statmon’s manufacturing facility and determines that the Product satisfies all requirements of the Conformance Testing and otherwise conforms to all applicable Specifications, ▇▇▇▇▇▇ will so notify Statmon. Statmon’s quality control procedures will include a mechanism by which Products may be traced back to a particular lot. Complete and accurate records relating to such tests shall be maintained by Statmon at all times during the term of this Agreement and for a period of three (3) years thereafter and shall be made available to ▇▇▇▇▇▇ upon ▇▇▇▇▇▇ request.
 
Proprietary
5


8.3 Acceptance of New Products: All New Products not accepted by ▇▇▇▇▇▇ shall be subject to inspection and testing by ▇▇▇▇▇▇ in accordance with the Conformance Testing within thirty (30) days after ▇▇▇▇▇▇’ receipt of such Products at the site of ▇▇▇▇▇▇ specified in the Order to determine conformity with the Order and Specifications. Statmon shall have the right to witness all such inspections and testing by ▇▇▇▇▇▇.

8.4 Acceptance of Products (Other than New Products: If any Products (other than New Products) delivered do not conform to the Accepted Order or the Specifications, ▇▇▇▇▇▇ shall have the right to reject such Products within thirty (30) days after ▇▇▇▇▇▇’ receipt of such Products at the site of ▇▇▇▇▇▇ specified in the Order. Statmon shall bear the costs and expenses, including, without limitation, storage, transportation, shipping, recalling, repackaging, reshipping, and the like associated with repair and/or replacement of nonconforming Products or lots.

8.5 Statmon’s Obligations With Respect to Rejected Products: In the event that any Product is rejected by ▇▇▇▇▇▇ following the Conformance Testing procedures set forth in Sections 8.2, 8.3 and 8.4 due to failure of the Products to perform in accordance with the Specifications, Statmon shall promptly inspect and test such Product at ▇▇▇▇▇▇’ facility (or, at the election of either party, at Statmon’s facility) in accordance with the Conformance Testing to determine whether the Product conforms to all Specifications applicable to such Product. ▇▇▇▇▇▇ shall have the right to be present at all inspections and tests conducted by Statmon. In the event that a rejected Product does not satisfy the Conformance Testing, Statmon shall, as soon as possible but no later than within thirty (30) days after its receipt of ▇▇▇▇▇▇’ notice of rejection and without expense to ▇▇▇▇▇▇, correct defects in any nonconforming Product or, at its option, replace the nonconforming Product so that such Product or replacement Product satisfies the Conformance Testing. If Statmon is unable to correct defects in the nonconforming Product or replace the Products Statmon will so notify ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have the option to have Statmon provide a credit for such Products.

8.6 In the event Statmon promptly inspects and tests a rejected Product at a ▇▇▇▇▇▇ facility (or, at the election of either party, at Statmon’s facility) in accordance with the Conformance Testing and satisfies all such test included therein, such Product shall be deemed to be accepted for all purposes of this Agreement, effective upon ▇▇▇▇▇▇’ receipt of Statmon’s written certification of such test results or, if later, upon the subsequent return of such Product to ▇▇▇▇▇▇.

ARTICLE 9 – DISPOSITION OF RECON INVENTORY

9.1 The Parties acknowledge and agree that the inventory of all Products purchased and pre-paid by ▇▇▇▇▇▇ under the Agreement for Purchase & Sale of Remote Monitoring Products entered into by and between the Parties on February 25, 2003 (the “Exclusive OEM Agreement”) under the ReCon brand is attached hereto as Appendix D (hereinafter referred to as the “ReCon Inventory”) and forms part of this Agreement.
 
Proprietary
6
 
9.2 The Parties agree that the ReCon Inventory will be allocated against future shipments of Products under the Axess brand at the rate of 100% through March 31, 2006, at the rate of 75% from April 1, 2006 through June 30, 2006 and at the rate of 50% thereafter until such inventory is exhausted.

ARTICLE 10 – DOCUMENTATION

10.1 Statmon shall furnish ▇▇▇▇▇▇ with an electronic master copy of source documentation, including but not limited to instruction and technical manuals (“Product Information”) relating to the Products. ▇▇▇▇▇▇ shall use such Product Information in sales promotion and training of ▇▇▇▇▇▇ personnel and customers only with respect to the Products purchased under this Agreement.

10.2 For Products listed in Appendix A - Products, Statmon shall provide to ▇▇▇▇▇▇ the following product documentation in electronic format:

Operations and Maintenance Manuals
Product pictures in the highest resolution possible
Application Guide Brochures

▇▇▇▇▇▇ shall use such information in sales promotion, marketing activity and for End Users only with respect to the Products purchased under this Agreement and in accordance with the terms of this Agreement.

ARTICLE 11 – DISCONTINUED AVAILIBILTIY/SPARE PARTS

11.1 Statmon shall not discontinue making any Products available to ▇▇▇▇▇▇ without providing ▇▇▇▇▇▇ with at least 90 days prior written notice of such discontinuance and an opportunity to purchase such quantities of the Products as ▇▇▇▇▇▇ estimates it may need to support the Products sold to ▇▇▇▇▇▇’ End Users.

ARTICLE 12 –EXPORT CONTROL

The parties acknowledge that any Products, Software, and technical information (including, but not limited to, services and training) provided under this Agreement are subject to U.S. export laws and regulations and any use or transfer of such Products, Software, and technical information must be authorized under those regulations. ▇▇▇▇▇▇ agrees that it will not use, distribute, transfer, or transmit the Products, Software, or technical information (even if incorporated into other products) except in compliance with U.S. export regulations.

ARTICLE 13 – SALES OR USE TAXES

▇▇▇▇▇▇ shall provide Statmon with a valid tax exempt certificate, in which case ▇▇▇▇▇▇ shall not be liable for all sales taxes and related charges exempted under such certificate, however designated, imposed upon or based upon the provision, sale, license or use of Products, and Licensed Materials levied upon the sale.

ARTICLE 14 - TRANSPORTATION AND PACKING

Statmon will arrange for prepaid transportation (from a list of carriers pre-approved by ▇▇▇▇▇▇) to destinations in the contiguous United States and invoice transportation charges to ▇▇▇▇▇▇, which ▇▇▇▇▇▇ agrees to pay in accordance with Article 7. When possible, Statmon shall utilize ▇▇▇▇▇▇’ accounts with DHL, Federal Express or UPS and ▇▇▇▇▇▇ will be billed for such charges directly by the carrier. Premium transportation will be used only at ▇▇▇▇▇▇’ request. Statmon shall pack Products for delivery in the contiguous United States, in accordance with its standard practices for domestic shipments. Where, in order to meet ▇▇▇▇▇▇’ requests, Statmon packs Products in other than its normal manner or for destinations outside the contiguous United States, Statmon may ▇▇▇▇ ▇▇▇▇▇▇ for the additional charges for such packing and transportation.
 
Proprietary
7

 
ARTICLE 15 – TITLE AND RISK OF LOSS

Risk of loss to Products and Licensed Materials shall pass to ▇▇▇▇▇▇ upon delivery to a common carrier, ▇▇▇▇▇▇ or its designated carrier or agent. Title to the Products shall pass to ▇▇▇▇▇▇ upon delivery to ▇▇▇▇▇▇, or if ▇▇▇▇▇▇ so instructs, to ▇▇▇▇▇▇’ End User in accordance with the Order. Title to all Licensed Materials (whether or not part of firmware) furnished by Statmon, and all copies thereof made by ▇▇▇▇▇▇, including translations, compilations, and partial copies are, and shall at all times remain, the property of Statmon. ▇▇▇▇▇▇ shall notify Statmon promptly of any claim with respect to loss which occurs while Statmon has the risk of loss and shall cooperate in every reasonable way to facilitate the settlement of any claim. For purposes of this clause, “delivery” shall mean the point at which Statmon or Statmon’s supplier or agent turns over possession of the Product or Licensed Materials to a common carrier, ▇▇▇▇▇▇, ▇▇▇▇▇▇’ End User, ▇▇▇▇▇▇’ employee, ▇▇▇▇▇▇’ designated carrier, ▇▇▇▇▇▇’ warehouse, or other ▇▇▇▇▇▇ agent and not necessarily the final destination shown on the Order.

ARTICLE 16 – PRODUCT CHANGES AND DEVELOPMENTS

Statmon may modify the Product drawings and Specifications or substitute products of later design. Statmon guarantees that such modifications or substitutions will not impact upon form, fit, or function under normal and proper use of the ordered Product as provided in the Specifications. With respect to changes, modifications, and substitutions that do impact the form, fit, or function of the Products, Statmon shall notify ▇▇▇▇▇▇ in writing thirty (30) days prior to the date the changes become effective and ▇▇▇▇▇▇ shall notify Statmon of any objections thereto before the effective date of the change; if ▇▇▇▇▇▇ fails to notify Statmon of any such objections, ▇▇▇▇▇▇ shall be deemed to have consented to such change. Statmon shall inform ▇▇▇▇▇▇ on a periodic basis of any planned changes to the form, fit, or function of Products.

ARTICLE 17 – LICENSE

17.1 Upon delivery of Licensed Materials pursuant to this Agreement, Statmon, grants to ▇▇▇▇▇▇ a perpetual, personal, nontransferable, (except as specified herein), and nonexclusive license to Use the Licensed Materials solely on the Designated Processors for its own business operations and to grant sublicenses as provided below commencing in Section 17.3. ▇▇▇▇▇▇ shall not reverse engineer, decompile or disassemble Software furnished as object code to generate corresponding Source Code. Unless otherwise agreed in writing by Statmon, ▇▇▇▇▇▇ shall not modify Software furnished by Statmon under this Agreement except as provided in Statmon’s documentation. If a Designated Processor becomes temporarily inoperative, ▇▇▇▇▇▇ shall have the right to use the Licensed Materials temporarily on a backup processor until operable status is restored and processing on the backup processor is completed. ▇▇▇▇▇▇ may make up to two (2) archival copies of the Software for use as backup for failed Software.

17.2 All Licensed Materials (whether or not part of firmware) furnished by Statmon, and all copies thereof made by ▇▇▇▇▇▇, including translations, compilations and partial copies, are and shall remain the property of Statmon.

17.3 Notwithstanding the provisions of this article, in consideration of the fees to be paid hereunder, ▇▇▇▇▇▇ may sub-license the Use of Licensed Materials with finished products on behalf of Statmon to End Users, but only in connection with the sale or lease to such End User of the finished products incorporating Products purchased under this Agreement for which such Licensed Materials were furnished in connection with such Products. Such sub-license shall be administered electronically by Statmon for electronic acceptance by each End User the first time the Licensed Materials are used and shall incorporate the terms and conditions set forth in Appendix F, Statmon’s End User License Agreement. Upon request by ▇▇▇▇▇▇, Statmon agrees to provide ▇▇▇▇▇▇ with copies of all such sub-licenses for the sole purpose of verifying acceptance of the required terms and conditions. The terms of such sub-licenses shall survive any termination of rights under this Agreement, including termination under Section 1.7.4.
 
Proprietary
8
 
17.4 Statmon may cancel any license granted under this article if ▇▇▇▇▇▇ fails to materially comply with the terms and conditions of such License or this Agreement and this Agreement is terminated. Statmon may cancel any sub-license to an End User of ▇▇▇▇▇▇ who fails to materially comply with the terms of such sublicence. If a license or sub-license is canceled, or if Licensed Materials are no longer needed, the corresponding copies of Licensed Materials shall be returned to Statmon, or Statmon shall be assured, in a format reasonably required by Statmon, that all copies of Licensed Materials have been destroyed and software has been erased from all media; provided however, that ▇▇▇▇▇▇ may retain copies of the Licensed Materials reasonably required to fulfill its warranty and maintenance obligations to its non-breaching sub-licensees. This paragraph shall not affect (1) the proper sub-license of Licensed Materials made before ▇▇▇▇▇▇’ license is canceled, or (2) ▇▇▇▇▇▇’ license hereunder if an End User fails to comply with a sub-license, provided, in either event, that such sub-licenses fully comply and comport with this article.

ARTICLE 18 – WARRANTIES

18.1 Product Warranties: To the extent and subject to the terms of the warranty given by the original manufacturer of the remote terminal units, Videoquip, Statmon warrants to ▇▇▇▇▇▇ that the Hardware components of any Products will conform to all applicable Specifications, and will be free from defects (including latent defects) in design (except to the extent that a Product is manufactured according to ▇▇▇▇▇▇’▇ design specifications), material, and workmanship for a period of (a) twelve (12) months from the date of delivery by ▇▇▇▇▇▇ of a Product to an End User.

18.2 Software Warranties: Statmon warrants to ▇▇▇▇▇▇ that the Software will be free from defects which materially affect the performance of the Software or the related Products and will operate in accordance with the Specifications for a period of twelve (12) months from the date of delivery by ▇▇▇▇▇▇ of Software to an End User. In addition the media in which the Software is provided shall be free from defects in materials and workmanship for a period of twelve (12) months from the date of delivery by ▇▇▇▇▇▇ of the media to an End User.

18.3 Other Warranties: Statmon warrants to ▇▇▇▇▇▇ only that any and all services to be performed by Statmon hereunder including, without limitation, technical support and training, will be performed by Statmon in a good and workmanlike manner. If any Products or Software furnished by Statmon contain one or more third party manufacturer’s warranties, Statmon hereby assigns such warranties to ▇▇▇▇▇▇, to the extent such warranties are assignable. Statmon warrants that at the time of delivery to ▇▇▇▇▇▇, all Products and Software shall be free of any security interest or any other lien or any other encumbrance whatsoever. Furthermore, Statmon warrants that it is the owner of all intellectual property rights relating to the Products and Software and that it has the rights to grant the licenses contained herein.

18.4 Repair/ Replace: Statmon shall repair or replace defective or nonconforming Products or Software under warranty or, at its option, replace the Products or Software under warranty with Products and Software that are conforming and not defective. If Statmon is unable to so repair or replace the Products or Software, Statmon will notify ▇▇▇▇▇▇. ▇▇▇▇▇▇ shall have the option to have Statmon provide a credit or, as otherwise requested by ▇▇▇▇▇▇, a refund equal to the price of the Product and, if installed by Statmon, the original installation charges which were charged to ▇▇▇▇▇▇.

18.5 Return of Products and Software: Defective or non-conforming Products and Software under warranty will be returned to Statmon for repair or replacement, at Statmon’s cost, with risk of loss and damage in transit borne by Statmon. Unless otherwise agreed upon by Statmon and ▇▇▇▇▇▇, Statmon shall complete repairs and ship the repaired Products and/or Software, or replacement Products and/or Software within fifteen (15) days after Statmon’s receipt of the defective or non-conforming Products and/or Software. Notwithstanding the above provision of this Section 18.5, if a Product or Software is determined to be defective within thirty (30) days use by an End-User of Product or Software, Statmon agrees to replace or repair the defective Product or Software within five (5) business days. In addition, if a ▇▇▇▇▇▇ field engineer is on site for a field installation or repair under warranty, if requested by ▇▇▇▇▇▇, Statmon agrees to use its best efforts to expedite a replacement on the same day to the End-User site. Statmon shall bear the risk of loss and damage in-transit and shall prepay and bear the cost of freight for shipments to the owner of repaired or replaced Products and Software.

Proprietary
9
 
If Products or Software returned to Statmon for any repair or replacement are riot defective or nonconforming, and, Statmon did not require or recommend the return, ▇▇▇▇▇▇ shall pay Statmon for any handling, inspection, repairs or transportation provided by Statmon at Statmon's then prevailing rates.

During the warranty period, all replacements of defective Products shall be new Products and not refurbished Products.

18.6 Warranty on Repaired or Replacement Products and Software: Any Product or Software under warranty which is repaired or replaced by Statmon shall be warranted as provided in this Article for: (a) the remainder of the original warranty period; or (b) ninety (90) days after the applicable Product or Software is returned to ▇▇▇▇▇▇, whichever is later (based upon the date the repair or replacement is completed and accepted by ▇▇▇▇▇▇).

18.7 Repair Information: Products or Software repaired by Statmon shall have the repair completion date stenciled or otherwise identified in a permanent manner at a readily visible location on the Products and the repaired Products shall be returned with a tag or other papers describing the repairs which have been made.
 
ARTICLE 19 – REPAIRS OR REPLACEMENT NOT COVERED UNDER WARRANTY

19.1 Repairs: In addition to "in warranty" repairs, Statmon agrees to provide repair or replacement service for all Products and Software ordered during the Term for a period of two (2) years after such Products or Software have been discontinued by Statmon, pursuant to notice by Statmon of such discontinuance. Statmon agrees to provide such warranty repairs or replacement (other than "in warranty" repairs or replacement) at the repair or replacement charges then generally charged by Statmon for such repairs or replacements or, if such repairs or replacements are not then being performed by Statmon at reasonable rates.

19.2 Repair or Replacement: Defective Products or Software, out-of-warranty, may be returned to Statmon for repair or replacement. If any Product or Software returned to Statmon for repair is reasonably determined to be irreparable, Statmon shall promptly notify ▇▇▇▇▇▇. Statmon shall then, at ▇▇▇▇▇▇' option, sell to ▇▇▇▇▇▇ a replacement Product or Software, if available, at the prices set forth pursuant to this Agreement or, if this Agreement is then terminated, at the then current price for such Product. During the Term of this Agreement, Statmon shall continue to provide replacement Products and/or Software for a period of two (2) years after such Products or Software has been discontinued by Statmon.

19.3 Completion of Repairs Shipment of Replacement: Statmon shall complete repairs and ship the repaired or replaced Product or Software or, as authorized by ▇▇▇▇▇▇ in an equipment repair or replacement order replacement Product, within thirty (30) days of Statmon's receipt of the defective Product. Statmon shall bear the risk of loss or damage during transit of the Product and shall prepay and bear the cost of transportation charges for shipment to Statmon of the Product or Software to be repaired or replaced. For return shipments from Statmon to ▇▇▇▇▇▇, Statmon shall bear the risk of loss or damage during transit and Statmon shall prepay and bear the cost of transportation charges for shipment of the Product or Software that has been repaired or replaced.

19.4 Warranty: Any Product or Software repaired or replaced pursuant to this Article (i.e., out of warranty), shall be warranted for a ninety (90) day warranty period.
 
Proprietary
10
 
19.5 No Exclusive Privilege: This Agreement does not grant Statmon any exclusive privilege to repair any or all Products or Software delivered to ▇▇▇▇▇▇ under this Agreement and Statmon acknowledges that ▇▇▇▇▇▇ may perform any repairs or contract with others for repairs.

19.6 Repair Information: Products and Software repaired by Statmon shall have the repair competition date stenciled or otherwise identified in a permanent manner at a readily visible location on the Products and the repaired Products or Software shall be returned with a tag or other papers describing the repairs which have been made.

ARTICLE 20 – INDEMNIFICATION

20.1 Statmon will indemnify and save harmless ▇▇▇▇▇▇ from any loss or damages (including reasonable attorneys' fees and legal costs) awarded against ▇▇▇▇▇▇ by final judgment (or by settlement approved by Statmon) because of claims, suits, or demands of third parties for personal injury or tangible property damage (as limited below) to the extent such loss or damage is caused by or results from the negligent acts or omissions of Statmon or its employees or agents provided 1) ▇▇▇▇▇▇ promptly notifies Statmon in writing of any suits, claims or demands against ▇▇▇▇▇▇ for which Statmon is responsible under this indemnity, 2) ▇▇▇▇▇▇ gives Statmon full opportunity and authority to assume the sole defense of and settle such suits and 3) ▇▇▇▇▇▇ furnishes to Statmon, upon request, all information and reasonable assistance available to ▇▇▇▇▇▇ for defense against any such suit, claim or demand. Statmon's liability under this indemnity, however, shall in no event exceed $250,000 for any one occurrence. This indemnity is in lieu of all other obligations of Statmon, express or implied, in law or in equity, to indemnify ▇▇▇▇▇▇ (except pursuant to the Article entitled "INFRINGEMENT").

20.2 ▇▇▇▇▇▇ will indemnify and save harmless Statmon from any loss or damages (including reasonable attorneys' fees) awarded against Statmon by final judgment (or by settlement approved by ▇▇▇▇▇▇) because of claims, suits, or demands of third parties for personal injury or tangible property damage (as limited below) to the extent such loss or damage is caused by or results from the negligent acts or omissions of ▇▇▇▇▇▇ or its employees or agents provided 1) Statmon promptly notifies ▇▇▇▇▇▇ in writing of any suits, claims or demands against Statmon for which ▇▇▇▇▇▇ is responsible under this indemnity, 2) Statmon gives ▇▇▇▇▇▇ full opportunity and authority to assume the sole defense of and settle such suits and 3) Statmon furnishes to ▇▇▇▇▇▇ upon request all information and reasonably assistance available to Statmon for defense against any such suit, claim or demand. ▇▇▇▇▇▇' liability under this indemnity, however, shall in no event exceed $250,000 for any one occurrence. This indemnity is in lieu of all other obligations of ▇▇▇▇▇▇, express or implied, in law or in equity, to indemnify Statmon (except pursuant to the Article entitled "INFRINGEMENT").

ARTICLE 21 – INFRINGEMENT

21.1 In the event of any claim, action, proceeding or suit by a third party against ▇▇▇▇▇▇ or any End-User alleging an infringement of any patent, copyright, or trademark, or a violation of any trade secret or proprietary rights by reason of ▇▇▇▇▇▇' sale or End-User's use, in accordance with the Specifications, of any Product, Licensed Material or other item furnished by Statmon to ▇▇▇▇▇▇ under this Agreement, Statmon, at its expense, will defend and hold harmless ▇▇▇▇▇▇ and/or any End-User, as the case may be, subject to the conditions and exceptions stated below. Statmon will reimburse ▇▇▇▇▇▇ and any End-User for any cost, expense and attorney's fees, reasonably incurred, and will indemnify ▇▇▇▇▇▇ against any liability assessed against ▇▇▇▇▇▇ and/or End-User by final judgment (or by settlement approved by Statmon) on account of such infringement or violation arising out of such use.

21.2 If ▇▇▇▇▇▇' or an End-User's use shall be enjoined or in Statmon's opinion is likely to be enjoined, Statmon will, at its expense and at its option, either (a) replace the affected Product, Licensed Material, or other item furnished pursuant to this Agreement with a suitable substitute of equivalent form, fit and function free of any infringement or violation, (b) modify it so that it will be free of the infringement or violation and of equivalent form, fit and function, or (c) procure for ▇▇▇▇▇▇ a license or other right to use it. If none of the foregoing options is not achieved after commercially reasonable efforts, Statmon will remove the enjoined Product, Licensed Material, or other item and refund to ▇▇▇▇▇▇ any amounts paid to Statmon.
 
Proprietary
11
 
21.3 ▇▇▇▇▇▇ or End-User (as the case may be) shall give Statmon prompt written notice of all such claims, actions, proceedings or suits alleging infringement or violation and Statmon shall have full and complete authority and shall assume, at Statmon's expense, the sole defense thereof, including appeals, and to settle same. ▇▇▇▇▇▇ or End-User shall, upon Statmon's request and at Statmon's expense, furnish all information and reasonable assistance available to ▇▇▇▇▇▇ or End-User and cooperate in every reasonable way to facilitate the defense and/or settlement of any such claim, action, proceeding or suit.

21.4 No undertaking of Statmon under this Article 21 - Infringement shall extend to any such alleged infringement or violation to the extent that it: (a) arises from adherence to design modifications, specifications, drawings, or written instructions which Statmon is directed by ▇▇▇▇▇▇ to follow, but only if such alleged infringement or violation does not reside in corresponding commercial Product or Licensed Material of Statmon's design or selection; or (b) arises from adherence to instructions to apply ▇▇▇▇▇▇'▇ trademark, trade name, or other company identification; or (c) resides in a Product or Licensed Material which is not of Statmon's origin and which is furnished by ▇▇▇▇▇▇ to Statmon for use under this Agreement; or (d) arises from use of Products, Licensed Materials or other items provided by Statmon in combinations with other Products, Licensed Materials or other items, furnished either by Statmon or others, which combination was not installed, recommended, intended or otherwise approved by Statmon. In the foregoing cases numbered (a) through (d), ▇▇▇▇▇▇ will defend and save Statmon harmless, subject to the same terms and conditions and exceptions stated above with respect to Statmon's rights and obligations under this clause.

21.5 THE LIABILITY OF STATMON AND ▇▇▇▇▇▇ WITH RESPECT TO ANY AND ALL CLAIMS, ACTIONS, PROCEEDINGS, OR SUITS BY THIRD PARTIES ALLEGING INFRINGEMENT OF PATENTS, TRADEMARKS, OR COPYRIGHTS OR VIOLATION OF TRADE SECRETS OR PROPRIETARY RIGHTS BECAUSE OF, OR IN CONNECTION WITH, ANY ITEMS FURNISHED PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO THE SPECIFIC UNDERTAKINGS CONTAINED IN THIS ARTICLE.

ARTICLE 22 – TRADEMARKS AND OTHER INDICIA

22.1 Unless ▇▇▇▇▇▇ specifically requests labeling in accordance with Appendix B, the exterior of all Products to be provided by Statmon under this Agreement shall be provided with Statmon's trade name and/or trade dress ("Statmon Marks") pursuant to the provisions of this Article whereby Statmon expressly authorizes ▇▇▇▇▇▇ to use Statmon Marks (as hereinafter defined) in connection with the marketing, sale, or license by ▇▇▇▇▇▇ of Products or Licensed Materials in accordance with the terms of this Agreement. All uses of Statmon Marks by ▇▇▇▇▇▇ shall be subject to prepublication or pre-use review and approval by Statmon which will not be unreasonably withheld or delayed. If Statmon grants ▇▇▇▇▇▇ permission to use its Statmon Marks in ▇▇▇▇▇▇' marketing and advertising of, and in ▇▇▇▇▇▇' publicity relating to Products and Licensed Materials, such use shall conform to Statmon's written standards and guidelines relating thereto, which may be revised by Statmon from time to time. Such use shall inure to the benefit of Statmon and shall not invest in ▇▇▇▇▇▇ any rights in or to the Statmon Marks. If at any time, in Statmon's judgment, any use of Statmon Marks by ▇▇▇▇▇▇ is deemed detrimental to the Statmon Marks or Statmon's reputation, or is deemed otherwise undesirable, Statmon may, upon thirty (30) days prior written notice to ▇▇▇▇▇▇, withdraw such permission without liability as a result thereof unless within such notice period Statmon determines in its sole discretion that ▇▇▇▇▇▇ has modified the use of the Statmon Marks to Statmon's satisfaction. ▇▇▇▇▇▇ shall not conduct business under any of the Statmon Marks or derivatives or variations thereof, and ▇▇▇▇▇▇ shall not directly or indirectly hold itself out as having any relation to Statmon or its affiliates other than as approved by Statmon as set forth herein.
 
Proprietary
12

22.2 ▇▇▇▇▇▇ expressly authorizes Statmon to use ▇▇▇▇▇▇ ▇▇▇▇▇ (as hereinafter defined) in connection with website marketing and other advertising literature and marketing pieces in accordance with the terms of this Agreement. All uses of ▇▇▇▇▇▇ ▇▇▇▇▇ by Statmon shall be subject to prepublication or pre-use review and approval by ▇▇▇▇▇▇ which will not be unreasonably withheld or delayed. If ▇▇▇▇▇▇ grants Statmon permission to use ▇▇▇▇▇▇ ▇▇▇▇▇ in Statmon's marketing and advertising of, and in Statmon's publicity relating to Products and Licensed Materials, such use shall conform to ▇▇▇▇▇▇' written standards and guidelines relating thereto, which may be revised by ▇▇▇▇▇▇ from time to time. Such use shall insure to the sole benefit of ▇▇▇▇▇▇ and shall not invest in Statmon any rights in or to the ▇▇▇▇▇▇ ▇▇▇▇▇. If at any time, in ▇▇▇▇▇▇' judgment, any use of ▇▇▇▇▇▇ ▇▇▇▇▇ by Statmon is deemed detrimental to the ▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇' reputation, or is deemed otherwise undesirable, ▇▇▇▇▇▇ may upon thirty (30) days prior written notice to Statmon, withdraw such permission without liability as a result thereof unless within such notice period ▇▇▇▇▇▇ determines in its sole discretion that Statmon has modified the use of the ▇▇▇▇▇▇ ▇▇▇▇▇ to ▇▇▇▇▇▇' satisfaction. Statmon shall not conduct business under any of the ▇▇▇▇▇▇ ▇▇▇▇▇ or derivatives or variations thereof, and Statmon shall not directly or indirectly hold itself out as having any relation to ▇▇▇▇▇▇ or its affiliates other than as approved by ▇▇▇▇▇▇ as set forth herein.

ARTICLE 23 – USE OF INFORMATION

23.1 All other technical and business information in whatever form which bears a legend or notice restricting its use, copying or dissemination or, if not in tangible form, is described as being proprietary or confidential at the time of disclosure and is subsequently summarized in writing so marked and delivered to the receiving party within thirty (30) days of disclosure to the receiving party (all hereinafter designated "Information") shall remain the property of the furnishing party. All Software shall be deemed to be confidential or proprietary regardless of how labeled and use thereof shall be in accordance with Article 17. The furnishing party grants the receiving party the right to use such Information only as follows: Such Information (a) shall not be reproduced or copied, in whole or part, except as authorized in this Agreement; and (b) shall, together with any full or partial copies thereof, be returned or destroyed when no longer needed. Statmon shall use such Information from ▇▇▇▇▇▇ solely for performance under this Agreement. ▇▇▇▇▇▇ shall use such Information from Statmon only (a) to order, (b) to evaluate Statmon's Products, Licensed Materials, or other items, or (c) to install, operate, and maintain the particular Products, Licensed Materials, or other items for which it was originally furnished. Unless the furnishing party consents in writing, such Information shall be held in confidence by the receiving party, except for that part, if any, which a) was known to the receiving party at the time it was submitted, b) is, or becomes, publicly known through no wrongful act of the receiving party, c) is received by the receiving party from a third party without similar restrictions and without breach of this Agreement or other applicable agreements, d) is approved for release by written authorization of the disclosing party, e) is independently developed by the receiving party without the use of the Information disclosed hereunder, f) is furnished by the disclosing party to a third party without a similar restriction on the third party's rights of g) except to the extent disclosure may be required by applicable laws or regulations, in which latter case, the party required to make such disclosure shall promptly inform the other prior to such disclosure in sufficient time to enable such other party to make known any objections it may have to such disclosure (the disclosing party shall take all reasonable steps to secure a protective order or otherwise assure that such Information will be withheld from the public record). The receiving party may disclose such Information to other persons, upon the furnishing party's prior written authorization, but solely to enable such third party to perform acts which this clause expressly authorizes the receiving party to perform itself and further provided such other person agrees in writing (a copy of which writing will be provided to the furnishing party at its request) to the same conditions respecting use of Information contained in this clause and to any other reasonable conditions requested by the furnishing party. The obligations and restrictions placed upon the receiving party under this section shall expire five (5) years after the Effective Date.

23.2 Each Party agrees to execute and be bound by the terms and conditions contained in the Confidentiality Agreement attached hereto as Exhibit G. Furthermore, each Party agrees: (a) to obtain, from any individual not subject to confidentially obligations at least as restrictive as in Section 23.1 who are in need to know of, and receive, any part of the Information, a commitment of confidentiality and restrictive use in the form attached hereto as Appendix G - Confidentiality Agreement; (b) to enforce by all means such commitments, and to assist actively furnishing party in the protection of the Information against any wrongful act or negligence by third parties and (c) to abide by the terms and conditions of the Confidentiality Agreement attached hereto as Exhibit G which is incorporated by reference hereunto and made a part of this Agreement.
 
Proprietary
13
 
ARTICLE 24 – TERMINATION

24.1 Termination Upon Certain Events: Either party may terminate this Agreement, effective immediately, without liability for such termination, upon written notice to the other party, if any of the following events occur:

(a)
The other party files a voluntary petition in bankruptcy
(b)
The other party is adjudged bankrupt;
(c)
A court assumes jurisdiction of the assets of the other party under a federal reorganization act;
(d)
A trustee or receiver is appointed by a court for all or a substantial portion of the assets of the other party;
(e)
The other party becomes insolvent or suspends its business; or
(f)
The other party makes an assignment of its assets for the benefit of its creditors except as required in the ordinary course of business

24.2 Termination Upon Material Breach: Either party may terminate this Agreement upon written notice to the other party if the non-terminating party has committed a material breach of its obligations under this Agreement and has failed to cure such breach within thirty (30) days from receipt of written notice of such breach. Such termination shall be effective thirty (30) days after written notice by the terminating party unless the non-terminating party has cured such breach.

24.3 Termination for Convenience: Either party may terminate this Agreement without cause upon 90 days written notice to the other party.

24.4 Effect of Termination: Upon the termination or expiration of, this Agreement, Statmon shall continue to fill any Orders placed by ▇▇▇▇▇▇ and all outstanding ▇▇▇▇▇▇ quotation(s) to End User(s) for a period of ninety (90) days from the date of termination or expiration.

ARTICLE 25 – AGREEMENT EXTENSION

After the initial Term of this Agreement and other subsequent expirations; and if this Agreement has not been terminated pursuant to Article 24, this Agreement will automatically renew for a one (1) year extension unless either party provides written notice of its intention not to renew this Agreement at least six (6) months prior to the end of the then effective Term.

ARTICLE 26 – LIMITATION OF LIABILITY

26.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT STATMON AND ▇▇▇▇▇▇ AND THEIR AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY PRODUCT, LICENSED MATERIALS, OTHER ITEMS, OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE AND NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. IN NO EVENT WILL EITHER PARTY'S LIABILITY TO EACH OTHER FOR DIRECT DAMAGES EXCEED THE AGGREGATE SALE PRICE OF THE PRODUCTS DELIVERED HEREUNDER.
 
Proprietary
14
 
ARTICLE 27 – ASSIGNMENT

Except as provided in this Article, neither party shall assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, (an "Assignment") without the other party's prior written consent. Notwithstanding the foregoing, nothing herein shall preclude an Assignment by either party to an Affiliate without the consent of the other party provided in each case, however, that a) the party seeking an Assignment is not in material breach or default of this Agreement and b) any Assignment shall not include an Assignment by either party to any party or entity who 1) in the reasonable opinion of the non-assigning party, has insufficient credit limits, 2) is a manufacturer of telecommunications products or services in competition with ▇▇▇▇▇▇, or 3) is a party to a contract or agreement with ▇▇▇▇▇▇ whereby ▇▇▇▇▇▇ has agreed to supply the Products or Licensed Materials available for procurement by ▇▇▇▇▇▇ under this Agreement. Assignment of this Agreement shall not relieve the assigning party of any of its obligations hereunder unless otherwise agreed to in writing by the non-assigning party.

ARTICLE 28 – FORCE MAJEURE

Neither party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent such delay or failure is caused by fire, flood, earthquake, explosion, war, terrorism, strike, embargo, governmental action or failure to act, the act of any civil or military authority, act of God, or by any other causes beyond its control whether or not similar to the foregoing.

ARTICLE 29 – NON WAIVER

No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a modification or waiver of such term, right or condition. No waiver of breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or other provision.

ARTICLE 30 – RELEASES VOID

Neither party shall require waivers or releases of any personal rights from representatives of the other party in connection with visits to its premises, and both parties agree that no such releases or waivers shall be pleaded by them or by third persons in any action or proceeding.

ARTICLE 31 – SEVERABILITY

If any provision or part hereof shall be held to be invalid or unenforceable for any reason, then the meaning of such provision or part hereof shall be construed so as to render it enforceable to the extent feasible. If no feasible interpretation would save such provision or part hereof, it shall be severed, herefrom, but without in any way affecting the remainder of such provision or any other provision contained herein, all of which shall continue in full force and effect unless such severance effects such a material change as to render the Agreement unreasonable.

ARTICLE 32 – CHOICE OF LAW

The construction and interpretation of, and the rights and obligations of the parties pursuant to this Agreement, shall be governed by the laws of the State of California, without regard to its conflict of laws provisions.
 
Proprietary
15
 
ARTICLE 33 – NO AGENCY
Neither ▇▇▇▇▇▇ nor Statmon shall be considered the agent of the other for any purpose or authorized to bind the other in anyway. The relationship between ▇▇▇▇▇▇ and Statmon is that of Buyer and Seller. Neither party is authorized to incur any expenses, chargeable to the other or represent itself as having any relationship with the other party except as specifically set forth in this Agreement.

ARTICLE 34 – HEADINGS

The article and paragraph headings contained herein are for convenience only and are not intended to affect the meaning or interpretation of this Agreement.

ARTICLE 35 – NOTICES

Any notice, demand or other communication (other than an Order) required, or which may be given, under this Agreement shall, unless specifically otherwise provided in this Agreement, be in writing and shall be given or made through nationally recognized overnight courier service, confirmed facsimile, or certified mail, return receipt requested and shall be addressed to the respective parties as follows:

a) To ▇▇▇▇▇▇:

▇▇▇▇▇▇ Corporation, Broadcast Division
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
DTV & Mobile Video Product Management With copy to:
▇▇▇▇▇ ▇▇▇▇▇, Senior Counsel, Commercial and International Operations

b) To Statmon:

▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President

Either party may change its address for receiving notices upon written notice to the other party. Written electronic notices transmitted to an address designated for such purpose by the intended receiving party shall be effective when received and may be deemed received not later than the day following transmittal.

ARTICLE 36 – SURVIVAL OF RIGHTS AND OBLIGATIONS

The rights and obligations of both parties hereunder, which by their nature would continue beyond the termination, cancellation or expiration hereof, shall survive such termination, cancellation or expiration including Statmon's obligations under Article 9, 11, 17, 19, 38, 41 and 42.

ARTICLE 37 – MARKETING/PUBLICITY

37.1 ▇▇▇▇▇▇ will cease to market and promote the ReCon brand and will make commercially reasonable efforts to promote the Axess brand as the preferred remote monitoring and control solution for major transmitters remote control environments.

37.2 Neither party shall make or cause to be made any public announcement regarding the relationship of the parties hereunder or the existence of this Agreement or any of its terms without the prior written consent of the other party, such consent not to be unreasonably withheld. Except as otherwise provided in this Agreement, each party shall submit to the other proposed copy of all advertising wherein the name, trademark, code, specification or service ▇▇▇▇ of the other party or its Subsidiaries or Affiliates is mentioned. Neither party shall publish or use such advertising without the other's prior written approval.
 
Proprietary
16
 
ARTICLE 38 – ESCROW, RELEASES and LICENSES

38.1 The original versions of information, documentation and materials relating to the Software and to the manufacturing and test procedures used by Statmon for the Products were deposited in escrow ("Deposit Materials") by Statmon pursuant to terms of the Agreement for Purchase & Sale of Remote Monitoring Products entered into by the Parties on February 25, 2003, and in accordance with the terms of the Escrow Agreement and Amendment thereto, Appendix B. Statmon shall keep the Deposit Materials current by promptly depositing the most recent versions thereof, and ▇▇▇▇▇▇ shall bear all costs related to the Escrow Agreement and the Deposit Materials. The Deposit Materials shall include, but not be limited to the Licensed Materials, a master copy of the Software on CD in compiled form, Source Code, program listings, tools, data files, manuals and flow charts sufficient to compile and to maintain and enhance the Software, together with any revisions and modifications for fixes; documentation reasonably sufficient for ▇▇▇▇▇▇ to manufacture, test and maintain the Products, including, but not limited to, specifications, manufacturing procedures, parts lists, vendor lists, test procedures, quality control processes and maintenance information relating to the Products.

38.2 For the purposes of "Release Conditions" under Article 4.1 of the Escrow Agreement, any of the following shall be deemed to be a "Depositor's failure to carry out obligations imposed pursuant to the Purchase and Sale Agreement":

(a)
If Statmon fails to meet delivery schedules for the Software portion of any Product, as evidenced by delivery delays of more than thirty (30) days, the master copy of the Software or CD in its compiled form shall be released from escrow to ▇▇▇▇▇▇, and Statmon shall provide access to an internet ftp site' allowing ▇▇▇▇▇▇ to download copies of the Software as needed, and the licenses granted in Art. 17 shall apply to such Software and copies for use with existing and prospective customers. If and when Statmon cures the delivery delays, ▇▇▇▇▇▇ shall be obligated to redeposit the master copy of the Software, unless ▇▇▇▇▇▇ has terminated the Agreement pursuant to Section 24.2 hereof.

(b)
If Statmon fails to meet delivery schedules for the Hardware portion of any Product, as evidenced by delivery delays of more than thirty (30) days from date of a firm order from ▇▇▇▇▇▇, and provided such delay is not caused by a shortage of parts beyond the control of Statmon or the manufacturer, the related manufacturing and testing documentation held in escrow by Statmon shall be released from escrow to ▇▇▇▇▇▇ and ▇▇▇▇▇▇ shall have the right to contract directly (without interference from Statmon) with the manufacturers and suppliers of the ' Hardware portions of the Product. In the event of the demise of Statmon's manufacturer and Statmon's inability to provide a replacement source acceptable to ▇▇▇▇▇▇, Statmon hereby grants to ▇▇▇▇▇▇ the non-exclusive, worldwide, irrevocable, perpetual, royalty free license to use such documentation and practice under any related intellectual property rights of Statmon to make, have made, use, sell and lease Products, effective upon release of such documentation from escrow.

(c)
If Statmon: i) delays delivery of any Product for any reason for more than 90 days; or ii) fails to support, repair or replace any Software as required under the terms of this Agreement after being given afforded a reasonable opportunity to do so, which such time period being no less than ninety (90) days; or (iii) ceases to exist as a legal entity in its current form excluding any name change or merger then all Deposit Materials relative to the Product(s) shall be released from escrow to ▇▇▇▇▇▇, and Statmon hereby grants to ▇▇▇▇▇▇ a non-exclusive, worldwide, irrevocable, perpetual, royalty free license to use the Deposit Materials and practice under the related intellectual property rights of Statmon to make, have made, use, improve and enhance the related Products for the existing customers..

Proprietary
17
 
ARTICLE 39 – ENTIRE AGREEMENT

39.1 This Agreement, which includes any exhibits or attachments hereto, represents the entire Agreement and understanding between the parties and all prior discussions and arrangements between the parties, whether oral or written, are merged into this Agreement and there are no other representations, understandings, arrangements or agreements between the parties, except as expressly set forth herein. Neither party shall be bound by any conditions, definitions, warranties, understandings, or representations with respect to the subject matter hereof other than as expressly provided in this Agreement.

39.2 This Agreement may be modified only by written amendment and signed by authorized representatives of the parties. No course of dealing or usage of trade shall be invoked to modify the terms or conditions of the Agreement.

ARTICLE 40 – DISPUTE RESOLUTION

If a dispute arises out of, or relates to, this Agreement or the subject matter of this Agreement other than with respect to a claim for equitable relief, either party may submit the dispute to a sole mediator selected by the parties or, at any time prior to selection of a sole mediator, to mediation by the American Arbitration Association ("AAA"). If not thus resolved, it shall be referred to a sole arbitrator selected by the parties or to AAA arbitration. The arbitration shall be governed by the United States Arbitration Act and judgment on the award may be entered by any court having jurisdiction. The arbitrator shall have the authority to award injunctive and other emergency relief, which shall be enforceable by either the arbitrator or any court with jurisdiction over the enjoined party or its assets. The arbitrator shall not have authority to award punitive or consequential damages. The arbitrator shall not limit, expand or modify the terms of the Agreement nor award damages in excess of compensatory damages, and each party waives any claim to such excess damages. A request by a party to a court for interim protection shall not affect either party's obligation here under to mediate and arbitrate. Each party shall bear its own expenses and an equal share of all cost and fees of the mediation and/or arbitration. Any arbitrator selected shall be competent in the legal and technical aspects of the subject matter of this Agreement. The content and result of mediation and/or arbitration shall be held in confidence by all participants, each of whom will be bound by an appropriate confidentiality agreement.

ARTICLE 41– ASSUMPTION OF RISK

Each party hereto acknowledges (i) the risks of its undertakings hereunder, (ii) the uncertainty of the benefits and obligations hereunder, and (iii) its assumption of such risks and uncertainty. Each party has conducted its own due diligence and requested and reviewed any contracts, business plans, financial documents and other written material as in such party's opinion shall be the basis of the party's decision to enter into this Agreement.

ARTICLE 42 – RELIANCE ON COUNSEL AND OTHER ADVISORS

Each party has consulted such legal, financial, technical or other expert it deems necessary or desirable before entering into this Agreement. Each party represents and warrants that it has read, knows, understands and agrees with the terms of conditions of this Agreement. Neither party has relied upon any oral representation of the other party in entering into this Agreement. All discussions, estimates or projections developed by a party during the course of negotiating the terms and conditions of this Agreement are by way of illustration only, and, unless specifically contained in this Agreement or one of its Appendixes, are not binding or enforceable against the other party in law or in equity.
 
Proprietary
18
 
IN WITNESS WHEREOF, the parties have caused this Agreement for Purchase and Sale of Remote Monitoring Products to be executed by their respective representatives on the date(s) indicated.

STATMON TECHNOLOGIES

By: 
/s/ GEOFEREY TALBOT
      
Name: 
GEOFEREY TALBOT
      
Title: 
CEO
      
Date :
June 6, ▇▇▇▇
      
 
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
 
By: 
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
      
Name: 
▇▇▇▇ ▇. ▇▇▇▇▇
      
Title: 
VP & GM Television Broadcast Systems
      
Date :
        
 
Proprietary
19

Document Metadata

Filed: July 14th, 2006