Exclusive Distribution Agreement between Security IT Vision, Inc. and Sentex SENSing Technologies, Inc. EXCLUSIVE DISTRIBUTION AGREEMENT
Exclusive
Distribution Agreement between Security IT Vision, Inc. and Sentex SENSing
Technologies, Inc.
6-5-06
#5.2 Version
Table
of Contents
| 1. | Definitions | 2 |
| 2. | Grant of Distribution and Other Rights | 4 |
| 3. | Payments | 4 |
| 4. | Taxes | 5 |
| 5. | Perpetual Term | 5 |
| 6. | Ownership of Rights | 6 |
| 7. | Warranties and Indemnity of SecITV to Distributor | 6 |
| 8. | Representations and Warranties of Distributor to SecITV | 10 |
| 9. | Marking | 11 |
| 10. | Non-Assignment | 11 |
| 11. | Infringement by Third Parties | 11 |
| 12. | Third-Party Technology | 12 |
| 13. | Prosecution | 12 |
| 14. | Information and Confidentiality | 13 |
| 15. | Survival | 14 |
| 16. | Certain Risk Factors | 14 |
| 17. | Covenants of One Party to the Other | 14 |
| 18. | General Provisions | 15 |
| 19. | Execution of Agreement | 17 |
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Exclusive
Distribution Agreement between Security IT Vision, Inc. and Sentex SENSing
Technologies, Inc.
6-5-06
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This
EXCLUSIVE DISTRIBUTION AGREEMENT ("Agreement"), dated as of 2th
June,
2006 ("Effective Date") is entered into by and between Security IT Vision,
Inc.,
an Oregon corporation ("SecITV"), having a place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and Sentex SENSing
Technologies, Inc., a New Jersey corporation ("Distributor"), having a place
of
business at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇. SecITV and Distributor
separately are a “Party” and together are the "Parties."
WHEREAS,
SecITV owns certain Technology (as defined below), including hardware and
software, relating to identification of people by facial, and fingerprint
recognition, and desires to grant to Distributor a license to use and distribute
the Technology as herein set forth;
WHEREAS,
Distributor desires to obtain a distribution license from SecITV.
WHEREAS,
SecITV and the Distributor are fully aware that, SecITV is only active in OEM
business activities as at the date hereof. (Distributor is on filling Form
10QSB
dated 21th
April,
2006.) , Distributor currently has no active operation and is a shell
corporation.
WHEREAS,
both Parties are very sophisticated businesspeople with many years of business
experience, and each is fully aware on the risks based on this transaction,
and
each acknowledges same to the other. Notwithstanding, a document setting forth
certain important risks will be referred to in Section 16.
NOW,
THEREFORE, in consideration of the foregoing and the respective promises and
covenants contained in this Agreement, SecITV and Distributor hereby agree
as
follows:
| 1. |
Definitions.
|
The
following terms shall have the meanings set forth below:
1.1. Affiliate.
"Affiliate" shall have the meaning ascribed to such term under Rule 405 of
the
Securities Act of 1933.
1.2. Corporate
Governance and Share Issuance Agreement.
"Corporate Governance and Share Issuance Agreement" means an agreement between
the parties, as annexed hereto as Exhibit A.
1.3. Improvements.
"Improvements" means all inventions protectable by patent that are improvements
or modifications to the Technology and that are created or developed either
independently or jointly by SecITV and/or Distributor.
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1.4.
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Joint
Technology.
"Joint Technology" means all Technology and Improvements developed
jointly
by the parties.
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1.5.
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Licensed
Hardware Products.
"Licensed Hardware Products" means all products made, have made,
used,
offered for sale or sold by Distributor incorporating or developed
using
the Licensed Technology for Security Applications.
´
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1.6.
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Licensed
Services.
"Licensed Services" means all services provided by Distributor
incorporating or developed using the Licensed Technology for Security
Applications.
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1.7.
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Licensed
Software Products.
"Licensed Software Products" means all products made, have made,
used,
offered for sale or sold by Distributor incorporating or developed
using
the Licensed Technology for Security Applications.
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1.8.
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Licensed
Technology.
"Licensed Technology" means any and all SecITV Technology, SecITV
Patents,
SecITV Derivative Works, and SecITV Improvements.
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1.9.
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Patents.
"Patents" means all U.S. patents and patent applications relating
to the
Technology (only if filed in the USPTO during the term of this Agreement),
including all continuations, continuations-in-part, divisionals,
reissues,
reexamination certificates, extensions and renewals, and including
all
foreign counterparts thereto, owned by or licensed to SecITV and/or
Distributor or Parent, that relate to verifying identification of
people
by means referred to above, including
all patents and patent applications, if any, identified in Exhibit B.
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1.10.
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Person.
"Person" means an individual, a corporation, a partnership, an
association, a limited liability company, a trust, any unincorporated
organization or a government or a political subdivision thereof.
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1.11.
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Product.
"Product" means that as is fully described in Exhibit
C.
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1.12.
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Security
Applications.
"Security Applications" means any and all uses relating to
(i) securing and/or providing restricted access to information,
systems, technology, locations or things, and (ii) confirming or
verifying identification or authorization, and identifying individuals
or
authorized users, each as more completely identified and detailed
in
Exhibit D.
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1.13.
|
Technology.
"Technology" means the technology, processes, ideas, concepts, inventions,
invention disclosures, laboratory notebooks, know-how, discoveries,
trade
secrets, improvements, design information, drawings, plans, technical
data, shop rights, engineering documentation, engineering notebooks,
specifications, blueprints, mask works, flow charts, diagrams, software
(in object and source code), models, prototypes and other intellectual
property developed (i) by SecITV prior to or during the term of the
License, (ii) by Distributor during the term of the License or
(iii) jointly by SecITV and Distributor during the term of the
License, pertaining to any and all Security
Applications.
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2.
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Grant
of Distribution and Other Rights.
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2.1.
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Licensed
Technology Grant.
SecITV, subject to Sections 5.1, 5.2, 5.3, 5.4, and 10, hereby appoints
Distributor licenses and grants to Distributor the sole right to
act as
SecITV's exclusive distributor and sales representative in the Territory
to use Licensed Technology as herein provided to make, have, have
made,
use, offer to sell, sell, and import Licensed Hardware Products and
Licensed Software Products, and provide Licensed Services only for
Security Applications, except as limited herein. Further, SecITV
also
grants to Distributor the right, power, and license to appoint
sub-distributors as is set forth in Section 2.1
below. Distributor hereby accepts the appointment and agrees to assume
the
powers granted to it hereunder and, as a part thereof, to distribute
the
Products in the territory.
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2.2.
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Subdistributors.
Upon the prior written request by Distributor, SecITV shall have
the
option, at its sole and absolute discretion, to allow Distributor
to
appoint one or more sub-distributors under the Licensed Technology
commensurate in scope with the distribution rights appointed hereunder,
which shall not be unreasonably withheld. Notice of the disallowance
of
any sub-distribution that Distributor has requested pursuant to this
Section 2.1
shall be provided to Distributor in writing no later three (3) business
days after receipt of such request by SecITV. If SecITV does not
respond
to Distributor's request within such period, the sub-distribution
shall be
deemed to be consented to by SecITV, provided,
however, that the terms of any sub-distribution shall be no less
restrictive on any sub-distribution than the terms of this Agreement
are
on Distributor. All sublicenses shall transfer to SecITV upon termination
of this Agreement.
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2.3.
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Consideration.
As consideration for SecITV appointingDistributor the rights provided
for
in this Agreement, Distributor shall, subject to the other provisions
of
this Agreement pay SecITV through the issuance of restricted shares
of
Common Stock, as set forth in detail in Exhibit C.
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3.
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Restrictions
on Technology.
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3.1.
Distributor agrees that it shall not use or license the right to use the
Technology, nor shall it or shall it allow a third party to make, have made,
use, offer to sell, sell, have sold or import any products or services using
the
Technology for other than Security Applications. All revenues derived by
Distributor from the use or license of the Technology as provided for hereunder
shall belong to Distributor.
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4.
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Payments.
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4.1.
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Pass
Through Royalties and Fees.
With the prior written agreement of Distributor to incur the expenses
noted, All royalties and fees assessed against, accrued or payable
by
SecITV to a third party, if any, relating to the Licensed Software
Products, the Licensed Hardware Products and the Licensed Services
shall
be paid to SecITV by Distributor, at least five (5) business days
before any such royalties or fees are payable by SecITV to such third
party. All royalty and fee amounts shall be paid by check or in cash
in
U.S. dollars. Each payment shall be accompanied by a report identifying
all sales, in dollars and in number of units, that form the basis
for such
royalty calculations or fees payable, and amounts paid.
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4.2.
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SecITV
receives for his its technology a fee of 5% for the use of the technology
if the product is manufactured from Distributor based on agreement.
The
base for the fee is the net manufacturing cost to
Distributor
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5.
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Taxes.
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5.1. SecITV
is
not responsible for any sales, use, value-added, personal property or other
taxes imposed on either Distributor's use, possession, offer for sale, or sale
of Licensed Products. Each Party shall be solely responsible for any taxes
based
on its own net income, as well as for obtaining its own professional tax advice
relating to this Agreement.
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6.
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Perpetual
Term.
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6.1. This
distribution agreement set forth in this Agreement shall be perpetual and at
the
least have a term of fifty (5) years. Further, once the Shares are transferred
to SecITV by Distributor as contemplated by the Share Issuance Agreement, this
distribution shall be fully paid, non-assignable, and may not be terminated
by
SecITV for any reason whithin above mention period.
6.2. Any
and
all disputes which may arise between SecITV and Distributor arising under this
Agreement which cannot be promptly settled amicably as between themselves or,
by
their nature, require judicial termination, shall be decided by arbitration
under the rules of the American Arbitration Association ("AAA"), Cleveland,
Ohio
office, with a single arbitrator, to be agreed upon by the parties, or if not
selected within thirty (30) days, to be selected according to the AAA
rules, with the parties endeavoring to conclude such arbitration within six
(6) months from initiation of the arbitration. All arbitration fees, costs
and expenses shall be paid by the losing party to any such
arbitration.
6.3. Upon
termination of this Agreement, Distributor shall immediately cease all
manufacture, use, sale and providing of Licensed Hardware Products, Licensed
Software Products and Licensed Services and, to the extent reasonably
practicable, each party shall promptly return and deliver to the other party
all
Licensed Technology and Confidential Information belonging to such party that
is
in its possession, and shall certify in writing that it has not knowingly
retained any copies of such.
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7.
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Ownership
of Rights.
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7.1. Ownership
of Licensed Technology.
Distributor acknowledges and agrees that title to and ownership of the Licensed
Technology and all of the applicable intellectual property rights in and to
the
Licensed Technology shall be as follows:
7.1.1. All
Technology developed solely by SecITV ("SecITV Technology") and Improvements
developed by SecITV ("SecITV Improvements") shall be owned by and remain the
sole and exclusive property of SecITV. Distributor acknowledges that this
Agreement does not convey any interest in and to the SecITV Technology or SecITV
Improvements or the intellectual property rights therein other than the
distribution rights set forth in Sections 2,
2.1,
and
2.2
herein.
7.1.2. All
Technology developed solely by Distributor ("Distributor Technology") and
Improvements developed by Distributor ("Distributor Improvements") shall be
owned by and remain the sole and exclusive property of Distributor. SecITV
acknowledges that this Agreement does not convey any interest in and to the
Distributor Technology or Distributor Improvements or the intellectual property
rights therein other than the license rights set forth in
Section 2.3.
7.1.3. All
Technology and Improvements developed jointly by the Parties ("Joint
Technology") shall be jointly owned by and remain the jointly owned property
of
the Parties in equal share. Any and all Derivative Works, SecITV Improvements
and Distributor Improvements shall be subject to one or more separate
development agreements and/or licenses to be negotiated by the Parties in good
faith.
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8.
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Warranties
and Indemnity of SecITV to Distributor.
SecITV represents and warrants to Distributor that the statements
contained in this Section 8
are true and correct
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8.1. Organization,
Qualification, and Corporate Power.
SecITV
is a corporation duly organized, validly existing, and in good standing under
the laws of the state of its incorporation. SecITV is duly qualified to conduct
business and is in corporate and tax good standing under the laws of each
jurisdiction in which the nature of its businesses or the ownership or leasing
of its properties requires such qualification, except for those jurisdictions
where the failure to be so qualified would not have a material adverse effect
on
SecITV. SecITV has all required corporate power and authority to carry on the
businesses in which it is engaged and to own and use the properties owned and
used by it. SecITV is not in default under or in violation of any provision
of
its Certificate of Incorporation or By-Laws.
8.2. Capitalization.
The
party or parties that control SecITV have all required power and authority
to
own and to vote all of the outstanding shares of capital stock of SecITV. There
are no voting trusts, proxies, or other agreements or understandings with
respect to the voting of any capital stock of SecITV. The principal owners
of
SecITV shall be made a party to this Agreement as is referred to
below.
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8.3. Authority.
SecITV
has all required power and authority to execute and deliver this Agreement
and
to perform all of its obligations hereunder and thereunder. The execution,
delivery, and performance by SecITV of this Agreement and the other documents
it
is required to execute and delivery to Distributor hereunder, and the
consummation by SecITV of the transactions contemplated hereby and thereby
have
been duly and validly authorized by all necessary corporate and shareholder
action. This Agreement has been duly and validly executed and delivered by
SecITV and constitutes a valid and binding obligation of SecITV, enforceable
against SecITV in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, or similar laws affecting the rights of creditors
generally.
8.3.1. To
the
knowledge of SecITV, none of the activities or business presently conducted
or
products currently shipped by SecITV, or conducted by or shipped by SecITV
at
any time whatsoever, infringes or violates, or constitutes a misappropriation
of, any intellectual property rights of any person or entity, or violates any
local, state, or federal law or regulation (collectively, "laws"). SecITV has
not received any complaint, claim, or notice alleging such infringement,
violation, misappropriation or laws.
8.4. Brokers'
Fees.
SecITV
has no liability or obligation to pay any finder's fees or commissions to any
broker, finder, or agent with respect to the transactions contemplated by this
Agreement.
8.5. Books
and Records.
The
books, records, accounts, ledgers, and files of SecITV, insofar as they pertain
to the License, are accurate and complete in all material respects and have
been
maintained in accordance with good business and bookkeeping
practices.
8.6. Distributor's
Agreements as to Product.
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8.6.1.
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Distributor
shall examine the quality of the Products received by it without
delay and
no later than ten (10) days after
receipt.
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Distributor
shall promptly (within ten (10) days) lodge a complaint with the Carrier in
case
of packing defect and shall note to the carrier the damage.
In
case
of quality defect, Distributor shall promptly inform SecITV of
same.
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8.6.2.
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Any
Products which Distributor finds to be defective (“Defective Product”) as
a result of faulty design manufacture or workmanship will at the
sole
discretion of SecITV either be replaced free of charge or repaired
free of
charge within Warranty from the delivery of the Defective Product,
provided that:
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| 8.6.3. |
The
Distributor shall state, in its opinion, whether or not the Product
has
not been misused, mishandled, overloaded, amended, modified or repaired
in
any way byDistributor, its servants or agents, or used for any other
than
that for which they were designed.
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| 8.6.4. |
The
Defective Product shall be returned by Distributor to SecITV properly
packed carriage paid to SecITV and repaired or replaced Products
will be
returned free-of-charge to destinations as directed by
Distributor.
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a) Subject
to the foregoing and the following sub-clauses of this clause, all risks shall
pass to Distributor's Customer and shall be made known to the Customer as part
of the Purchase Order with respect to Products purchased from
Distributor.
b) Unless
otherwise specified, delivery shall be deemed to take place when the Products
have been delivered to the Customer's premises or other specified delivery
point, to the Customer’s carrier if to be collected for dispatch
abroad.
c) All
dates
and times specified to the Customer for delivery and installation of the
Products or the provision of Services are estimates only.
d) If
the
Customer does not accept delivery of a consignment of Products in accordance
with the Contract then:
e.1) SecITV
shall be entitled to claim payment for the Products refused, and
e.2) The
Products refused shall be in all respects at the Customer’s risks,
and
e.3) The
cost
of storing the Products shall be borne by the Customer, and
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8.7.
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Confidentiality.
Company and Distributor and their employees shall not divulge any
information that is considered as confidential. This information
might
relate but not limited to the Product, to the parties’ affairs or business
or method of carrying on business
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8.8.
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Disclosure.
No representation or warranty by SecITV or Distributor contained
in this
Agreement, and no statement contained in any exhibit or any other
document, certificate, or other instrument delivered to or to be
delivered
by or on behalf of one party to the other pursuant to this Agreement,
and
no other statement made by either SecITV or Distributor or any
representatives of SecITV or Distributor, one Party to the other,
in
connection with this Agreement, contains or will contain any untrue
statement of a material fact or omit or will omit to state any material
fact necessary, in light of the circumstances under which it was
or will
be made, in order to make the statements herein or therein not misleading.
SecITV has disclosed to Distributor all material information relating
to
the business of SecITV, the Joint Technology, and/or the transactions
contemplated by this Agreement.
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8.9.
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Definition
of Knowledge.
in each case where a representation or warranty of SecITV contained
in
this Section 8
is
qualified as being "to the knowledge of SecITV," such knowledge shall
be
deemed to consist of the actual knowledge of any director, officer,
or
member of management of SecITV, in each case after actually conducting
a
reasonable investigation.
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8.10. Limitations.
Nothing
contained in this Agreement shall be construed as creating any form of license
or rights under any patents, copyrights, mask works, trademarks, service marks,
trade names, service names, trade dress, trade secrets, know-how, or
confidential information owned or controlled by SecITV, other than as
specifically indicated herein.
8.11. Indemnities.
8.11.1. By
SecITV.
SecITV
shall indemnify, defend and hold harmless Distributor against any claim, demand
or cause of action (a) resulting from a breach of any provision of this
Agreement by SecITV; or (b) relating to infringement based on the use by
Distributor of any one or more of the Licensed Hardware Products, Licensed
Services, Licensed Software Products, Licensed Technology, and Patents in
conformance with the specifications or the requirements of this Agreement;
provided that indemnification by SecITV under (b) shall not apply to any
allegation or determination of infringement to the extent that such infringement
is based on (i) the use of application code or modifications developed by
Distributor or a third party, if such infringement would have been avoided
in
the absence of such use; (ii) the use of any other software or hardware
that is used in conjunction with the Product, if such infringement would have
been avoided in the absence of such combination or use; (iii) the
unauthorized use of the Product; or (iv) use of the Product not in
conformance with the specifications or the requirements of this Agreement;
and
provided, further, that this indemnification shall be contingent upon
Distributor notifying SecITV within ten (10) days of learning of any such claim,
demand, or cause of action within ten (10) days thereof, and providing SecITV
with such assistance as reasonably requested by SecITV in defending against
such
claim, demand or cause of action; and (v) based on or resulting from a breach
of
any provision of the Agreement by SecITV.
8.11.2. By
Distributor.
Distributor shall indemnify, defend and hold harmless SecITV against any claims,
demands or causes of action (a) alleging infringement of any third party
intellectual property rights based on (i) the use of application code or
modifications developed by Distributor or a third party, (ii) the use of
any other software or hardware that is used in conjunction with the Product,
(iii) the unauthorized use of the Product, or (iv) use of the Product
not in conformance with the specifications or the requirements of this
Agreement, (b) based on the unauthorized use of the Product by Distributor,
or (c) based on or resulting from a breach of any provision of this
Agreement by Distributor.
8.12. Product
Warranties.
SECITV HEREBY DISCLAIMS AND WAIVES ALL RIGHTS TO CONTEST ALL IMPLIED WARRANTIES
OF ANY SORT, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE TECHNOLOGY, IMPROVEMENTS, LICENSED
HARDWARE PRODUCTS, LICENSED SOFTWARE PRODUCTS AND LICENSED
SERVICES.
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8.13. Mitigation.
In the
event that any claim, demand or cause of action ("Claim") is asserted against
SecITV or Distributor alleging infringement of any third party's intellectual
property rights resulting from grant or rights made hereunder or the the use
by
Distributor of the Product, SecITV promptly shall use commercially reasonable
efforts to seek to resolve such Claim by one or more of the following:
(a) modifying the Product such that it no longer infringes or
(b) obtaining a license, subject to the prior written agreement of
Distributor, intellectual property asserted to have been infringed (the payments
under which shall be borne by Distributor). Should it be commercially
unreasonable for SecITV to undertake either (a) or (b), or if the payments
under (b) are unduly burdensome for Distributor, then Distributor may
either (x) terminate this Agreement, (y) request that SecITV remove
the infringing subject matter (at SecITV's expense) or (z) continue using
the Product, provided,
that in
such event Distributor shall bear all costs and expenses and responsibility
for
defending against and payment of any and all damages relating to Distributor's
use of the Product and any lawsuits, proceedings and/or settlements relating
to
any such Claims.
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9.
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Representations
and Warranties of Distributor to SecITV.
Distributor represents and warrants to SecITV as
follows:
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9.1. Organization.
Distributor is a corporation duly organized, validly existing, and in good
standing under the laws of the state of its incorporation.
9.2. Authorization
of Transaction.
Distributor has all required power and authority to execute and deliver this
Agreement and to issue the Shares and to perform its obligations hereunder
and
thereunder. The execution and delivery of this Agreement by Distributor and
the
performance of this Agreement and the consummation of the transactions
contemplated hereby and thereby by Distributor have been duly and validly
authorized by all necessary corporate and shareholder actions. This Agreement
has been duly and validly executed and delivered by Distributor and constitutes
a valid and binding obligation of Distributor, enforceable against it in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, or similar laws affecting the rights of creditors
generally.
9.3. Noncontravention.
Neither
the execution and delivery of this Agreement nor the contemplated issuance
and
transfer and sale of the Shares by Distributor, nor the consummation by
Distributor of the transactions contemplated hereby or thereby, will (a)
conflict or violate any provision of the charter or Code of Regulations of
Distributor, (b) required on the part of Distributor any filing with, or permit,
authorization, consent or approval of, any governmental entity, (c) conflict
with, result in breach of, constitute (with or without due notice or lapse
of
time or both) a default under, result in the acceleration of, create in any
party any right to accelerate, terminate, modify, or cancel, or require any
notice, consent, or waiver under, any contract, lease, sublease, license,
sublicense, franchise, permit, indenture, agreement, or mortgage for borrowed
money, instrument of indebtedness, security interest, or other arrangement
to
which Distributor is a party or by which it is bound or to which any of its
assets is subject, or (d) violate any order, writ, injunction, decree, statute,
rule, or regulation applicable to Distributor or any of its properties, assets,
or stock.
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9.4. Brokers'
Fees.
Distributor has no liability or obligation to pay any finder's fees or
commissions to any broker, finder, or agent with respect to the transactions
contemplated by this Agreement.
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10.
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Marking.
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10.1. If
applicable, Distributor shall permanently ▇▇▇▇ with the numbers of any patents
relating to the Licensed Technology owned by SecITV ("Patents") all of the
Licensed Hardware Products and Licensed Software Products in accordance with
35
U.S.C. § 287 and in substantially the following form: "This product is covered
by one or more of the following United States Patents: [list
numbers.]" In addition to marking the Licensed Hardware Products and Licensed
Software Products in the manner described above, Distributor must also ▇▇▇▇,
in
substantially the same manner as described above, the box or packaging that
contains the Licensed Hardware Products or Licensed Software Products.
Distributor may advertise and reference the fact that the Licensed Hardware
Products and Licensed Software Products are licensed under the Patents and
that
the Patents are owned by SecITV but, except as expressly provided herein, shall
not otherwise use the name or any trademark or service ▇▇▇▇ of SecITV to market,
advertise, or promote the Licensed Hardware Products, Licensed Software Products
or Licensed Services or any other products or services without SecITV's express
written consent, which consent shall not be unreasonably withheld.
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11.
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Non
Assignment.
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11.1. Distributor
may not assign this Agreement or any of the rights or privileges under this
Agreement without the prior written consent of SecITV which consent shall not
be
unreasonably withheld. For purposes of this Agreement, Distributor shall be
deemed to have assigned this Agreement in derogation of this provision, if
Distributor permits or fails to prevent any other person or entity to take
the
place of Distributor hereunder by merger, consolidations, stock transfer, other
reorganization or as a result of bankruptcy. Notwithstanding the above,
Distributor may assign this Agreement to an entity that is an Affiliate of
Distributor. The validity of any approved or allowable assignment of this
Agreement or any of the rights or privileges under this Agreement shall be
subject to the assignee agreeing in advance in writing to be bound by the terms
of this Agreement. Any attempted assignment in derogation of the foregoing
shall
be void.
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12.
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Infringement
by Third Parties.
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12.1. SecITV
shall have the sole and exclusive right to bring suit and initiate proceedings
relating to any infringement of the Patents or misappropriation of the
Technology or Improvements and to settle the same. All costs and expenses
relating to any such suit or suits or proceeding shall be paid for by SecITV,
and shall not be the responsibility of Distributor, and any and all recoveries,
awards, or payments from said suits or any settlements thereof shall be the
property of SecITV. Distributor shall reasonably cooperate with and assist
SecITV in all such suits as SecITV deems reasonably appropriate or necessary
and
all costs and expenses thereof shall be borne by SecITV. If Distributor becomes
aware of any infringement of any Patent or misappropriation of the Technology
or
Improvements by any third-party, Distributor shall promptly notify SecITV of
such and provide SecITV with any and all evidence thereof in its possession
or
control.
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13.
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Third
Party Technology.
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13.1. The
parties acknowledge that certain software, equipment or technology of third
parties, including without limitations, facial, speech, eye, and fingerprint
recognition software and hardware, may be required to operate or provide support
for the Licensed Hardware Products, Licensed Software Products or Licensed
Services or to evidence the practice the Licensed Technology. SecITV shall
cooperate with Distributor to identify any such third party technology that
may
be available to Distributor, but SecITV shall not be obligated to pay for the
purchase or licensing of any such third party technology or any third party
intellectual property rights relating to such technology.
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14.
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Prosecution.
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14.1. By
SecITV.
SecITV
shall retain the right but not the obligation to prosecute and/or maintain
the
Patents that may relate to the SecITV Technology and Joint Technology and any
other intellectual property rights relating thereto. Distributor shall cooperate
with SecITV in any prosecution of pending applications concerning any SecITV
Technology and Joint Technology by providing upon request technical information
and data in an appropriate form relating to the subject matter of any pending
applications or issued patents. SecITV shall be responsible for all costs and
expenses with respect to the SecITV Technology. SecITV and Distributor shall
share equally all costs and expenses with respect to the Joint Technology.
14.2. By
Distributor.
Distributor shall retain the right but not the obligation to prosecute and/or
maintain the Patents that may relate to the Distributor Technology or any other
intellectual property rights relating thereto. Distributor shall be responsible
for all costs and expenses with respect to the Distributor Technology.
14.3. Failure
to Prosecute.
Should
a Party fail to or choose not to prosecute or maintain any patents relating
to
the SecITV Technology or the Distributor Technology or pay for the prosecution
of any patents relating to the Joint Technology, the other Party shall have
the
right to prosecute and/or maintain such patents subject to such other Party
paying for and undertaking such obligation to prosecute and maintain any such
patents. Should the other Party undertake the obligation to prosecute and
maintain and pay for any such patents, the non-prosecuting Party shall
relinquish its right, if any, to prosecute the patent, and the non-prosecuting
Party shall assign and shall be deemed to have assigned all of its rights in
same to the prosecuting Party. Upon assignment of any such patent, the assigning
Party shall be granted by the other Party a license to such patent that is
commensurate in scope to the rights enjoyed by the assigning Party in such
patent pursuant to this Agreement prior to the assignment.
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15.
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Information
and Confidentiality.
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15.1. Exchange
of Information.
During
the term of this Agreement, SecITV and Distributor agree to promptly keep each
other informed on all Improvements conceived or developed by either of them
to
the Technology.
15.2. Confidentiality.
SecITV
and Distributor acknowledge that the Licensed Technology licensed pursuant
to
this Agreement relates or will relate to information that is not or will not
be
publicly available ("Confidential Information"). The Confidential Information
provided hereunder is valuable, proprietary, and unique, and each Party agrees
to maintain the confidentiality of the Confidential Information and to be bound
by and observe the proprietary nature thereof as provided herein. Each Party
agrees to take diligent action to fulfill its obligations hereunder by
instruction or agreement with its employees or agents (whose confidentiality
obligations shall survive termination of employment or agency) who are permitted
access to the Confidential Information. Access shall only be given on a
need-to-know basis, except as otherwise set forth herein or as may be permitted
in writing by the disclosing Party. Without limiting the generality of the
foregoing, for the avoidance of doubt, each Party agrees that those staff or
other representatives of the other Party who require access to the Confidential
Information for support shall not require a license. Neither Party shall use,
provide or otherwise make available the Confidential Information or any part
or
copies thereof to any third party, except its employees, consultants and agents,
other than as agreed to in writing in advance by the disclosing Party. Prior
to
any such disclosure, each party to whom Confidential Information is to be
disclosed shall agree to terms and conditions concerning exchange of information
and confidentially as laid down in this Section 15.2.
The
terms and conditions of this Agreement are also confidential to the parties.
Neither party shall disclose any such terms and conditions during the term
of
the Agreement and thereafter without prior written approval by the other party,
except as required by law, and as is set forth in Section.
15.3. Reverse
Engineering.
Distributor shall not reverse engineer, decompile or disassemble the Licensed
Technology or any portion thereof, nor otherwise attempt to create or derive
the
Licensed Technology except as permitted by law. Distributor acknowledges and
agrees that that unauthorized reproduction, use, or disclosure of the Licensed
Technology or any part thereof is likely to cause irreparable injury to SecITV,
who shall therefore be entitled to injunctive relief to enforce these license
restrictions, in addition to any other remedies available at law, in equity,
or
under this Agreement, and without the need to post funds, even if ordinarily
required.
15.4. Confidentiality
Exceptions.
Notwithstanding the provisions of this Section 15,
the
confidentiality obligations hereunder shall not apply to (i) information
that is known to the public or is generally known within the industry or
business, (ii) information that is (was) required to be disclosed pursuant
to law (i.e., SEC disclosure requirements) or order of a court having
jurisdiction (provided that the party required so to disclose such Confidential
Information shall offer the party owning such Confidential Information the
opportunity to obtain an appropriate protective order or administrative relief
against disclosure of such Confidential Information) but only to the extent
of
any such required disclosure, and (iii) information that was legally
acquired by SecITV or Distributor, as the case may be, from a third-party in
good faith, provided that such disclosure by the third-party was not in breach
of any agreement between such third-party and SecITV or Distributor, as the
case
may be.
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16.
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Survival.
|
The
terms
of Sections 2, 2.1, 2.2, 2.3, 2.4, 2.5, 2.6, 7, 7.6, 12, 14.2 shall survive
the termination or expiration of this Agreement.
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17.
|
Certain
Risk Factors.
|
Risk
factors relating to the Distributor's issuance of its common stock as referred
to herein are set forth in Exhibit ___.
|
18.
|
Covenants
of One Party to the Other.
|
18.1. Distributor
shall at its own expense apply for all approvals for all those products the
Distributor wants to sell in the Territory. Such approvals shall belong to
SecITV and be held in SecITV’s sole name.
18.2. Distributor
shall not make any additions or modifications to the Product without SecITV’s
prior written approval. The Product can be sold only in the original form and
in
the original packing. In the event that Distributor makes any such permissible
additions or modifications to the Product, full details shall be notified by
the
Distributor to SecITV in writing within seven (7) days of their being carried
out. SecITV shall not be liable for, whether under this Agreement or otherwise,
for any consequences arising from such additions or modifications nor for any
resultant defect of the Product.
18.3. Distributor
shall pursue its activities in co-operation with SecITV, informing SecITV of
its
activities (marketing and sales) consistently.
18.4. Distributor
has the right to set out its own sales prices to its customers
18.5. Distributor
shall inform SecITV on the sales price achieved.
18.6. Distributor
shall bring to the notice of SecITV any information received by it and which
is
likely to be of use or benefit to SecITV in relation to the marketing of the
Product, which might affect sales of the Product.
18.7. Distributor
shall not make any representations, warranties or guaranties with reference
to
the Product except such as are consistent with the current conditions of sale
of
SecITV, and the warranties to be set forth in Purchase Orders.
18.8. Shall
not
incur any liability on behalf of SecITV or in any way pledge or purport to
pledge SecITV’s credit or accept any order or make any contract on behalf of
SecITV.
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18.9. Exhibits.
All
Exhibits referred to herein are made a part hereof and incorporated herein
as if
fully rewritten herein.
18.10. Entire
Agreement.
The
Agreement, along with the exhibits hereto, and subject to the agreements of
certain shareholders of Distributor and SecITV as set forth below, are the
final
and entire agreement between the parties relating to the subject matter and
supersedes any and all prior or contemporaneous discussions, statements,
representations, warranties, correspondence, conditions, negotiations,
understandings, promises and agreements, oral and written, with respect to
such
subject matter.
18.11. Agreement
of SecITV's Controlling Parties.
The
Agreement of SecITV's controlling parties is set forth after the corporate
signature page.
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19.
|
General
Provisions.
|
19.1. Choice
of Law.
This
Agreement will be governed by, and construed and interpreted according to,
the
substantive laws of the State of Ohio, without regard to its choice of law
provisions.
19.2. Choice
of Forum.
Any
claim or action brought by SecITV arising in any way out of this Agreement,
other than a dispute under Section 4,
which
is addressed herein, must be brought in the United States District Court,
Central District of California or, if subject matter jurisdiction cannot be
obtained in that court, in any court of competent jurisdiction sitting in
California. Any claim or action brought by Distributor arising in any way out
of
this Agreement must be brought in the United States District Court, Northern
District of Ohio, or, if subject matter jurisdiction cannot be obtained in
that
court, in any court of competent jurisdiction sitting in Ohio. SecITV and
Distributor hereby submit to the jurisdiction and venue of said courts for
these
purposes.
19.3. Entire
Agreement.
The
Agreement, along with the exhibits hereto, are the final and entire agreement
between the parties relating to the subject matter and supersedes any and all
prior or contemporaneous discussions, statements, representations, warranties,
correspondence, conditions, negotiations, understandings, promises and
agreements, oral and written, with respect to such subject matter.
19.4. No
Reliance.
The
parties each acknowledge that, in entering into this Agreement, they have not
relied upon any statements, representations, warranties, correspondence,
negotiations, conditions, understandings, promises and agreements, oral or
written, not specifically set forth in this Agreement. All of the parties
represent that they are represented by legal counsel and have been fully advised
as to the meaning and consequence of all of the terms and provisions of this
Agreement.
19.5. Waiver;
Modifications.
No
provision of this Agreement shall be waived unless set forth in writing and
signed by the party effecting such waiver. No waiver of the breach of any of
the
terms or provisions of this Agreement shall be a waiver of any preceding or
succeeding breach of this Agreement or any other provisions thereof. No waiver
of any default, express or implied, made by any party hereto shall be binding
upon the party making such waiver in the event of a subsequent default. This
Agreement may only be modified or amended by a written agreement executed by
each of the parties.
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19.6. Notices.
Any
notices permitted or required under the provisions of this Agreement shall
be in
writing and shall be personally delivered, mailed by certified mail, postage
prepaid or by facsimile transmission (with proof of transmission) or shall
be
sent by overnight courier service to the address of the relevant party as first
set forth above. SecITV or Distributor may direct notices to be sent to such
other address or Person as any party may have specified in a notice duly given
to the other party as provided herein. Such notice, request, demand, waiver,
consent, approval or other communication will be deemed to have been given
as of
the date so delivered.
19.7. Severability.
In the
event that any one or more of the provisions contained in this Agreement shall,
for any reason, be held to be invalid, void, illegal, or unenforceable in any
respect, such invalidity, voidness, illegality, or unenforceability shall not
affect any other provision of this Agreement, and the remaining portions shall
remain in full force.
19.8. Cooperation.
Each
of
the parties hereto shall execute and deliver any and all additional papers,
documents, and other assurances, and shall do any and all acts and things
reasonably necessary in connection with the performance of their obligations
hereunder and to carry out the intent of the parties hereto.
19.9. First
Right of Refusal.
Distributor has first right of refusal to purchase the technology if it is
ever
offered for sale.
19.10. Titles.
The
titles of Sections hereunder are included for ease of reference only, and shall
not be used to construe the meaning of this Agreement.
19.11. Authority.
All
parties and authorized representatives signing this Agreement represent and
warrant that they have corporate power and authority to execute and enter into
this Agreement.
19.12. Counterparts.
This
Agreement may be executed in multiple counterparts, each of which together
shall
be and constitutes one and the same Agreement.
19.13. Press
Releases and Announcements.
Neither
of the Parties shall issue any press release or make any other public
announcement or furnish any statement or make any general announcement to its
respective employees or customers relating to the subject matter of this
Agreement without the prior written approval of the other Party; provided,
however, that a Party may make such announcements and disclosures as may be
required by applicable laws (in which case the disclosing Party shall advise
the
other Party and provide it with a copy of the proposed disclosure prior to
making the disclosure). Notwithstanding the foregoing, (i) within one day after
the date of execution of this Agreement by the Parties, SecITV shall issue
a
press release in the form of Exhibit
____
attached
hereto and Distributor shall issue a press release in the form of Exhibit
____
attached
hereto and (ii) within one day after the Closing Date, SecITV shall issue a
press release in the form of Exhibit
____
attached hereto and Distributor shall issue a press release in the form of
Exhibit
____
attached
hereto, provided, however, that in each case, the Parties may elect to issue
a
joint press release.
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20.
Execution
of Agreement
This
agreement will be considert effective when executed by faxsimily by the parties
each corporate party to the agreement who has corporate authorithy to do so
and
each of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇ in their individual capacity as set forth on
page
18 and 19. As soon as possible original copies will be delivered on to the
other
[SIGNATURE
PAGE FOLLOWS]
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IN
WITNESS WHEREOF, the parties have executed this Technology License Agreement
through their duly authorized representatives on the date set forth
above.
| SECURITY IT VISION, INC. | |||
| By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: Director | |||
| SENTEX SENSING TECHNOLOGIES, INC. | |||
| By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | |||
| Title: CEO |
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Additional
personal agreements made pursuant to 7.2. and 8.2:
|
1.
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ being the sole and controlling shareholder of SecITV and
as a
member of the Board of Directors of the Company shall take all action
necessary for the Board of Directors and/or the Shareholders of SecITV
to
approve the Agreement as may be required by applicable
law.
|
_________________________________
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
|
2.
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ being the majority shareholder of Sentex and as a member
of the
Board of Directors of Sentex shall take all action necessary for
the Board
of Directors and/or the Shareholders of Sentex to approve the Agreement
as
may be required by applicable law.
|
_________________________________
▇▇▇▇▇▇
▇▇▇▇▇▇▇
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