EXHIBIT 10.9
BUSINESS ALLIANCE AGREEMENT
This BUSINESS ALLIANCE AGREEMENT (the "Agreement") is entered into as
of the date of the last signature hereto ("Effective Date"), between uniView
Technologies Products Group, Inc., with a principal place of business at
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Metrophone Telecommunications, Inc., with a principal place of business at
2020 _ ▇▇▇▇▇ ▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Metrophone").
All references to Metrophone in this Agreement shall refer to Metrophone or
its designated agent.
A. Whereas, uniView develops and markets technology, which includes
digital media devices, customer care solutions, and special software
applications for the Internet, interactive television and Broadband market;
B. Whereas, Metrophone installs and operates public access
communication devices in hotels, hospitals, truck stops and restaurants,
among others, utilizing multi-interactive Internet terminals to bridge the
digital divide by providing public access to information anytime and
anywhere; and
C. Whereas, Metrophone and uniView desire to cooperate in the
development and marketing of their products and services.
Now, Therefore, the parties hereby agree as follows:
1.0 DEFINITIONS AND AGREEMENT DOCUMENTS
1.1 Agreement Documents: This Agreement is comprised of this Agreement and
the following Exhibits that may be amended from time to time by written
approval of both parties, which are attached hereto and made a part hereof:
Exhibit A - Scope of Work
Exhibit B - Available Product and Pricing Schedule
Exhibit C - uniView[R] Model 310 VOD Digital Media Device
Specifications
1.2 Definitions
1.2.1 Confidential Information shall mean this Agreement, including
Exhibits A, B and C, and all other technical and non-technical
information or material furnished by one party ("Owner") to the other
("Recipient") under this Agreement, which is not generally known by
non-Owner personnel which (a) gives Owner some competitive business
advantage, or the opportunity of obtaining such advantage, or the
disclosure of which could be detrimental to the interests of Owner; (b)
which is owned by Owner, or in which Owner has an interest, or which
Owner obtains from another party and which Owner treats as proprietary
whether or not owned or developed by Owner; and (c) which is either (i)
marked "Confidential Information," "Proprietary Information" or other
similar marking, (ii) known by Recipient to be considered confidential
and proprietary by Owner, or (iii) from all the relevant circumstances
should reasonably be assumed by Recipient to be confidential and
proprietary to Owner.
1.2.2 Derivative Work(s) shall mean (i) for material subject to
copyright or mask work right protection, any work which is based upon
one or more pre-existing works of the Technology, such as a revision,
modification, translation, abridgment, condensation, expansion,
collection, compilation or any other form in which such pre-existing
works may be recast, transformed or adapted, (ii) for patentable or
patented materials, any adaptation, subset, addition, improvement or
combination of the Technology, and (iii) for material subject to trade
secret protection, any new material, information or data relating to
and derived from the Technology, including new material which may be
protectable by copyright, patent or other proprietary rights, and, with
respect to each of the above, the preparation, use and/or distribution
of which, in the absence of this Agreement or other authorization from
the Owner, would constitute infringement under applicable law.
1.2.3 Intellectual Property Rights shall mean all intellectual
property rights worldwide arising under statutory or common law, and
whether or not perfected, including, without limitation, all (i)
patents, patent applications and patent rights; (ii) rights associated
with works of authorship including copyrights, copyright applications,
copyright registrations, mask work rights, mask work applications, mask
work registrations; (iii) rights relating to the protection of trade
secrets and Confidential Information; (iv) any right analogous to the
foregoing and any other proprietary rights relating to intangible
property (other than trademark, trade dress, or service ▇▇▇▇ rights);
and (v) divisions, continuations, renewals, reissues and extensions of
the foregoing (as and to the extent applicable) now existing, hereafter
filed, issued or acquired.
1.2.4 Object Code shall mean a form of software code resulting from
the translation or processing of Source Code by a computer into machine
language or intermediate code, which thus is in a form that would not
be convenient to human understanding of the program logic, but which is
appropriate for execution or interpretation by a computer.
1.2.5 Product shall mean an enclosed digital media device for use
in accessing the Internet which incorporates Metrophone's Specified
Features, all or a part of the Technology and is manufactured according
to uniView's Specifications.
1.2.6 Source Code shall mean a form in which a computer program's
logic can be deduced by a human being reasonably skilled in the art,
such as a printed listing of the program or a form from which a printed
listing can be easily generated.
1.2.7 Specifications shall mean uniView's most recently published
description of the essential technical requirements for the software
and hardware components of the Product, as currently shown in Exhibit
C.
1.2.8 Specified Features shall mean a detailed description of
desired features of the Product which may include, among others, a
customized Graphical User Interface.
1.2.9 Technology shall mean (i) a Graphical User Interface created
by uniView in object code form and (ii) uniView's digital media device
hardware reference platform and software operating system in object
code form, which exhibit, among others, the following features: audio
and video streaming, Web browsing, e-mail, and e-commerce capabilities.
1.2.10 Territory shall mean the United States of America.
1.2.11 Trademarks shall mean all names, logos, designs, characters,
and other designations or brands used by uniView or Metrophone in
connection with its Products or services.
1.2.12 Updates shall mean bug fixes, modifications, variations, and
enhancements, to the extent included in a patch or dot release of the
Technology, which uniView generally licenses as part of the Technology.
2. PRODUCT DEVELOPMENT AND ACCEPTANCE
2.1 Pursuant to the terms of this Agreement, Metrophone will provide its
Specified Features to uniView and uniView will design and customize the
Product pursuant to the Scope of Work shown in Exhibit A. The Product
will consist of uniView Model 310 Digital Media Devices, a Graphical User
Interface customized to Metrophone's specification and Consulting Services
as may be agreed. uniView will provide an alpha version of the Product to
Metrophone within an agreed time frame after receipt of a purchase order
from Metrophone. uniView will deliver additional alpha prototypes to
Metrophone at such times and in such quantities as may be mutually agreed
in writing.
2.2 From the date uniView delivers the initial Product prototype to
Metrophone, Metrophone shall have thirty (30) days in which to give written
notice of acceptance or rejection of such Product prototype. Acceptance or
rejection shall be based upon a determination by uniView and Metrophone
whether the delivered Product prototype provides the Specified Features.
Such acceptance shall not be unreasonably withheld. If Metrophone fails to
deliver to uniView its written acceptance or rejection within the thirty
(30) day acceptance period, the Product shall be deemed accepted and
approved for production.
2.3 If Metrophone gives uniView written notice of rejection of the Product
prototype within the thirty (30) day acceptance period, then uniView and
Metrophone will cooperate in determining a corrective action plan within ten
(10) business days after such notice. uniView shall perform the corrective
action and resubmit an alpha version to Metrophone within twenty (20)
business days after determining a corrective action plan. If after the
parties have attempted good faith corrective actions and such actions are
unsuccessful, then either party will have the right to terminate this
Agreement with thirty (30) days notice. If this Agreement is so terminated,
each party shall return all Confidential Information of the other party.
3.0 COMPENSATION AND PRICING
3.1 On the Effective Date, Metrophone shall pay to uniView a non-refundable
one-time license fee as shown in Exhibit B.
3.2 On the Effective Date, Metrophone shall pay to uniView the estimated
costs to develop and customize the Specified Features of the Scope of Work
listed in Exhibit A.
3.3 Metrophone shall pay uniView the amount shown in Exhibit B for each
Product prototype, net thirty (30) days.
3.4 For manufacturing quantities of the Product, the pricing of such
Product shall be based upon the estimates provided in Exhibit B. Such
pricing shall be finalized prior to mass production of the Product and
Exhibit B will be amended accordingly. The pricing stated in Exhibit B
includes the cost of error corrections, bug fixes and corrections of other
non-conformities. However, the cost of changes by Metrophone of the
Specified Features that require changes to the Product shall be borne by
Metrophone. To the extent Specified Features are added to or subtracted
from the Product, the parties agree to revise pricing in advance of
manufacturing.
3.5 Except as otherwise provided in this Agreement, uniView and Metrophone
shall not participate in any revenue sharing program under the terms of this
Agreement.
3.6 Metrophone shall make all payments owed to uniView within thirty (30)
days of receipt of invoices (Net 30 terms). Payment for all hardware and
software will be by means of an irrevocable Letter of Credit. All pieces,
Products and licenses purchased by uniView on behalf of Metrophone will be
considered due and will be paid by Metrophone within thirty (30) days of
receipt of such invoices, except for Products and Software required to be
paid in advance of manufacturing or shipment.
4.0 LICENSE AND OWNERSHIP RIGHTS
4.1 Subject to the terms and conditions contained in this Agreement and
subject to Metrophone's payments to uniView specified in this Agreement,
uniView hereby grants to Metrophone, under and to the extent of uniView's
Intellectual Property Rights, a non-exclusive license to use, sell,
distribute and support the Product within the Territory during the Term
of this Agreement.
4.2 All right, title and interest in and to Intellectual Property Rights
underlying the Product shall remain vested with uniView and no licenses are
granted to Metrophone to use such rights other than as expressly authorized
in this Agreement.
4.3 Any off-the-shelf software uniView provides to Metrophone for
Metrophone's own use or for sublicensing to Metrophone's end users will be
furnished only under the terms of separate software license agreements that
may be in the form of a written agreement, shrink-wrap or break-the-seal as
may be required by uniView's suppliers. These agreements contain provisions
under which Metrophone agrees to be bound relating to software ownership,
protection, trademark display and conditions for sublicensing the software
to Metrophone's customers. The software is uniView's own or uniView's
supplier's Proprietary information.
5.0 PRODUCT CHANGE
5.1 uniView reserves the right to make modifications to the Product and
its components. uniView agrees to notify Metrophone of any change to the
Product that may affect the form, fit, specified function, reliability of
the Product or the packaging media. uniView shall notify Metrophone in
writing of the aforementioned changes not less than thirty (30) days prior
to the proposed change. In the event any proposed change affects the
operation, Specified Features, reliability or life of the Product, or the
ability to interface the Product with other products, and in the event
uniView and Metrophone fail to reach agreement thereon, Metrophone shall
have the right to terminate this Agreement and/or any or all outstanding
purchase orders for the Product, in whole or in part.
6.0 PRODUCTION
6.1 After written acceptance by Metrophone of the alpha version of the
Product and upon uniView's acceptance of a qualified purchase order
submitted by Metrophone, uniView will produce the Product developed pursuant
to this Agreement subject to the pricing and payment schedule contained in
Exhibit B.
6.2 uniView shall use commercially reasonable efforts to make timely
delivery of the Product in accordance with mutually agreed upon delivery
dates. In addition uniView shall notify Metrophone in writing of any
possible delay in the agreed to delivery of the Product as soon as possible
prior to the scheduled delivery date.
6.3 Notwithstanding anything to the contrary herein, uniView reserves the
right to adopt an equitable plan of allocation and adjust delivery schedules
accordingly in the event of shortages or other events not within the control
of uniView.
7.0 TERM, TERMINATION AND CANCELLATIONS
7.1 Term. The initial term of this Agreement shall begin on the
Effective Date and shall continue from year to year unless otherwise
terminated hereunder.
7.2 Termination. This Agreement may be terminated by either party under
the circumstances and with the consequences provided in this section or as
otherwise stated in this Agreement.
7.2.1. If either party hereto becomes insolvent or bankrupt or
admits its inability to pay its debts as they mature, or makes an
assignment for the benefit of its creditors, or ceases to function as
a going concern or to conduct its operations in the normal course of
business, or if the majority of the ownership or control of either
party is acquired by another enterprise reasonably considered to be a
competitor of the other party, or if either party acquires a majority
interest in such an enterprise, the other party shall have the right to
terminate this Agreement immediately and such termination shall occur
upon the giving to the other party of notice of its intention so to
terminate. For purposes of the foregoing, "control" shall mean the
direct or indirect ability or power to direct, or cause the direction
of, the management and policies of a party, whether through the ability
to vote a party's securities, by contract or otherwise.
7.2.2 If either party wishes to terminate this Agreement or a
portion thereof solely for the convenience of such party, that party
shall have the right to terminate this Agreement by giving written
notice to that effect to the other party, such termination to be
effective thirty (30) days after such notice.
7.3 Cancellation of Production orders by Metrophone.
7.3.1 If Metrophone cancels an accepted purchase order sixty (60)
days or less before the scheduled uniView ship date, Metrophone shall
be responsible for 100% of the unit price for all accepted purchase
orders.
7.3.2 If Metrophone cancels an accepted purchase order more than
sixty (60) days before the scheduled uniView ship date, Metrophone
shall be responsible for an amount equal to costs incurred or
committed by uniView for the terminated Agreement or Purchase Order
or portion thereof that cannot be canceled or diverted to another sale.
Said charges shall not exceed 100% of the order value for the canceled
units. uniView agrees to divert complete material and work in process
to other requirements wherever possible in order to minimize charges.
8.0 CRITICAL COMPONENT LIABILITY
8.1 uniView's products are not designed, intended or authorized for use as
critical components in life support or safety devices or systems or for any
other application in which the failure of uniView's product could create a
situation where personal injury or death may occur without the express
written approval of uniView.
9.0 WARRANTY
9.1 Product warranties shall be as provided by the manufacturer(s) of the
Product. uniView and Metrophone understand that the current warranty of
the initial manufacturer is that the Product(s) will be free from material
defects in material and workmanship for a period of ninety (90) days from
the date of shipment. This warranty is limited to the repair or replacement
of the defective product, which must be returned to the manufacturer
according to its "Return Procedure." Metrophone shall make no warranties
with respect to the Products or services provided or rendered by uniView
under this Agreement except as authorized in writing by uniView. Metrophone
acknowledges that, except as may be provided in this agreement or otherwise
provided by uniView in writing, NO OTHER WARRANTIES ARE CREATED BY THIS
AGREEMENT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR
A PARTICULAR PURPOSE.
10.0 INTELLECTUAL PROPERTY INDEMNIFICATION
10.1 uniView represents and warrants that during the Term of this Agreement,
the Product and services, when properly used as contemplated herein, will
not infringe a trade secret, a U.S. patent, a mask work right, or a
copyright, provided that (i) uniView is given prompt written notice of
such claim; (ii) uniView is given the right to control and direct the
investigation, preparation, defense or settlement of any claim; (iii)
Metrophone fully cooperates with uniView in the investigation, preparation,
defense or settlement of any claim; and (iv) the alleged infringement was
not caused by Metrophone's alteration of the Product or use of it in
combination with other software, equipment or technology not approved in
writing by uniView.
10.2 Upon being notified of such a claim, uniView shall indemnify Metrophone
against third party claims and damages and shall in its sole discretion
(i) defend through litigation or obtain through negotiation the right of
Metrophone to continue using the Product; (ii) rework the Product so as to
make it non-infringing while preserving the original functionality, or
(iii) replace the Product with articles having substantially equivalent
functionality. If uniView determines that none of the foregoing
alternatives provide an adequate remedy, uniView may terminate this
Agreement with respect to such infringing Product upon advance written
notice to Metrophone and, in discharge of its obligations, refund an
equitable portion of fees actually paid by Metrophone for the infringing
Product or services. THESE ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE
FOR BREACH OF THE WARRANTY PROVIDED IN THIS SUBSECTION.
11.0 TERMS OF SALE
11.1 All deliveries will be FOB manufacturer's warehouse. uniView will make
freight arrangements in accordance with Metrophone's reasonable instruction,
if any, and Metrophone shall be responsible for freight, duty and other
associated charges. Irrevocable letter of credit acceptable to uniView or
good funds shall be required as payment for any purchase order.
12.0 LIMITATION OF LIABILITY
12.1 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE TO THE BREACH OF ANY OBLIGATION
UNDER THIS AGREEMENT. A PARTY'S SOLE REMEDY FOR ANY BREACH HEREUNDER SHALL
BE LIMITED TO REMEDIES SET FORTH HEREIN.
13.0 USE OF NAME AND TRADEMARK
13.1 Nothing contained in this agreement shall be construed as conferring
any rights to use in advertising, publicity, or other activities any name,
trademark, or other designation of either party hereto, including any
contraction, abbreviation, or simulation of any of the foregoing without
the express written approval of the other party.
14.0 GENERAL PROVISIONS
14.1 This Agreement, including the exhibits attached hereto and made a part
hereof, constitute the entire understanding between the parties relating to
the subject matter hereof and, except for the confidentiality provisions of
a Confidentiality and Nondisclosure Agreement between the parties dated
August 14, 2001, and except for a Web Linking Agreement between the parties
executed contemporaneously herewith, this Agreement supersedes any previous
agreements, either oral or written, relating to the subject matter herein.
14.2 This Agreement may not be amended or modified in any respect unless
approved in writing and signed by duly authorized officers of the respective
parties.
14.3 This Agreement and its performance shall be governed by, subject to and
construed in accordance with applicable United States Federal law and the
laws of the State of Texas.
14.4 All captions and descriptive headings used in this Agreement are for
convenience of reference only and are not to be used in interpreting the
obligations of the parties under this Agreement.
14.5 Except as required by law, neither party shall disclose any of the terms
and conditions of this Agreement to any third party without the prior written
consent of the other party. However, Metrophone and uniView will cooperate
in making a joint press release shortly after this Agreement is signed.
14.6 Any notices or other communications required or permitted to be given
under the terms of this Agreement must be in writing and will be deemed to
have been delivered (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile, provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending
party (if received by 5:00 p.m., CST) or the first business day following
such delivery (if received after 5:00 p.m., CST); or (iii) one business day
after deposit with a nationally recognized overnight delivery service, in
each case properly addressed to the party to receive the same at the address
shown below:
If to uniView: If to Metrophone:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Sales and Marketing ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief Network
Engineer
uniView Technologies Metrophone Telecommunications,
Products Group, Inc. Inc.
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and to: and to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, CEO ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, CEO
uniView Technologies Metrophone Telecommunications,
Products Group, Inc. Inc.
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14.6.1 Either party may change its address by a notice given to the
other party in the manner set forth above. Notice given as herein
provided shall be construed to have been given seven (7) days after the
mailing thereof.
14.7 Neither this Agreement nor any interest hereunder may be transferred or
assigned, by operation of law or otherwise, by Metrophone without the prior
written consent uniView. It is the express intent of the parties, that
after issuance of a Release to Production by Metrophone, uniView may assign
the executory portions of this agreement to a third party to perform the
remaining obligations hereunder.
14.8 This Agreement and the obligations and performance of the parties hereto
shall be subject to all laws, both present and future, of any government
having competent jurisdiction over the parties hereto, and to orders,
regulations, licenses, directions or requests of any such government, or any
department, agency or corporation thereof.
14.9 Each of the parties will act as, and will be, independent in all aspects
of their performance of this Agreement. Neither party will act or have
authority to act as an agent for the other party for any purpose whatsoever.
Except as expressly provided in this Agreement, nothing will constitute
either party as agent for the other or either party the authority to make
representations or agreements on behalf to the other, and each party
covenants not to make any representations or to take any actions inconsistent
with the foregoing. Nothing in this Agreement will be deemed to constitute
or create a joint venture, partnership, pooling arrangement, contractor
arrangement or other formal business entity or fiduciary relationship between
Metrophone (or any of its affiliates) and uniView (or any of its affiliates),
and, except as otherwise provided in this Agreement, nothing in this
Agreement shall be construed as providing for the sharing of profits or
losses arising out of the efforts of either of uniView or Metrophone under
this Agreement.
14.10 Metrophone and uniView agree not to export or reexport, or cause
to be exported or reexported, any technical data received hereunder, or the
direct product of such technical data, to any country to which, under the
laws of the United States, either party is or may be prohibited from
exporting its technology or the direct product thereof without first
obtaining proper governmental approval.
14.11 If any of the provisions of this Agreement shall be held by a court
of competent jurisdiction to be contrary to the law, the remaining provisions
of the Agreement shall remain in full force and effect.
14.12 No orders requiring the submission of cost or pricing data,
containing a defense priority, or to which the Federal Acquisition
Regulation or other U.S. Government procurement requirements are
applicable, will be placed pursuant to this agreement. Any such orders
shall require separate negotiation, agreement and processing.
14.13 Each party shall be excused from any delay in performance
hereunder caused by an occurrence or contingency beyond its reasonable
control and despite its best efforts, including, but not limited to, an act
of God, war, fire, government requirements, inability to secure materials
and transportation difficulties. The affected party shall give the other
party prompt written notice of any such delay. The obligations and rights
of the party so excused shall be extended on a day-to-day basis for the time
period resulting from such excusable delay.
14.14 The failure of either party to insist in any instance upon the
performance by the other party of any of the terms or conditions, or of the
future performance of any of the terms, covenants or conditions, shall not
relieve such other party of its obligations with respect to such performance,
and such terms and conditions shall continue in full force and effect.
14.15 In the event of an irreconcilable dispute arising out of or in
connection with this Agreement the parties shall not resort to litigation
but shall submit to arbitration conducted in Dallas, Texas in accordance
with the Commercial Arbitration Rules of the American Arbitration
Association, and judgment on the award rendered by the arbitrator(s) may be
entered in any court having jurisdiction thereof. The arbitrators shall
rule in accordance with the laws of the State of Texas. Notwithstanding the
foregoing, either party may apply to any court of competent jurisdiction for
injunctive relief without breach of this arbitration provision.
14.16 In the event that any signature is delivered by facsimile
transmission or by facsimile signature, such signature shall create a valid
and binding obligation of the party executing (or on whose behalf such
signature is executed) the same with the same force and effect as if such
facsimile signature page were an original thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year
first written herein.
uniView Technologies Metrophone Telecommunications, Inc.
Products Group, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
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Title: Chairman/CEO Title: Chairman/CEO
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Date: January 15, 2002 Date: January 14, 2002
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