Exhibit 10.7
BUSINESS ALLIANCE AGREEMENT
This BUSINESS ALLIANCE AGREEMENT ("Agreement") is made and entered into as
of the date the last signature below is affixed (hereinafter "Effective
Date"), by and between uniView Technologies Products Group, Inc., a Texas
corporation, with its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ("UNIVIEW") and Zoned In, Inc. with
its principal place of business at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Zoned In").
A. Whereas, UNIVIEW develops and markets set top boxes for, among
other things, accessing the Internet;
B. Whereas, UNIVIEW has access to the trademark "▇▇▇▇▇▇ MathesR" for
use in relation to set top boxes;
C. Whereas, Zoned In offers a secured Internet network accessed
through set top boxes and other methods; and
D. Whereas, UNIVIEW desires to fulfill Zoned In's orders for set top
boxes and Zoned In desires to utilize uniView's expertise in the production
of a set top box ("Z-Box") utilizing the ▇▇▇▇▇▇ ▇▇▇▇▇▇ trademark.
Now, Therefore, the parties hereby agree as follows:
1.0 AGREEMENT DOCUMENTS AND DEFINITIONS
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 - Zoned In's Specified Features
Exhibit B - UNIVIEW's Specifications
1.2 Definitions:
1.2.1 Zoned In's Specified Features shall mean a detailed
description of the desired features of the Product.
1.2.2 UNIVIEW's Specifications shall mean the hardware reference
platform specification developed in accordance with Zoned In's
Specified Features, defining the Product.
1.2.3 Product shall mean an enclosed set top box for use in
accessing the Internet ("Z-Box"), which conforms to Zoned In's
Specified Features, manufactured according to UNIVIEW's Specifications,
and which contains the ▇▇▇▇▇▇ ▇▇▇▇▇▇ trademark. The Product may
consist of two versions, a consumer model and a business model.
1.2.4 Confidential Information shall mean Zoned In's Specified
Features, UNIVIEW's Specifications, this Agreement, and all other
proprietary information relating to the subject matter of this
Agreement furnished by one Party to the other Party under this
Agreement and designated as confidential, where possible in writing, by
an appropriate legend, such as "Zoned In Confidential Proprietary" or
"UNIVIEW Confidential Proprietary", and if disclosed orally, that which
is identified at the time of oral disclosure as being confidential and
being confirmed within thirty (30) days after such oral disclosure in
written and/or graphic model form and designated by the disclosing
party in writing as confidential by such legend.
2. PRODUCT DEVELOPMENT AND ACCEPTANCE
2.1 Pursuant to the terms of this Agreement, the parties will work together
to develop and customize the most functional and cost effective Product from
an existing hardware reference platform specification by creating a
derivative specification, which incorporates Zoned In's Specified Features.
Zoned In will provide its Specified Features to UNIVIEW and UNIVIEW will
design and integrate those features with the existing hardware reference
platform. The parties recognize that technical assistance and discussions
will be required, from time to time, to assist UNIVIEW in integrating Zoned
In's Specified Features into the Product. UNIVIEW and Zoned In agree to
mutually cooperate to resolve technical issues in order to efficiently
resolve technical questions as they might arise. Each party agrees to bear
its own costs associated with any such assistance.
2.1.1 Whenever possible Zoned In will provide the hardware and
appropriate drivers for peripheral devices that connect to the Product.
However, the parties agree to work together on the interfacing issues
relating to such devices. In addition, UNIVIEW will work on all issues
pertaining to the Product interfacing with the Internet and Zoned In's
secured network.
2.1.2 The Graphic User Interface (GUI) shall only display Zoned
In's trademark or trademarks approved by Zoned In into the home page of
the Z-Box.
2.1.3 User authentication shall be accomplished through smart
cards. Zoned In will enable smart cards to be sent to users prior to
the user's receipt of the Z-Box. The smart card will automatically
register and authenticate the user at an authentication site located
within Zoned In's default Internet Service Provider (ISP).
2.2 UNIVIEW will develop and provide to Zoned In a Product prototype with
per unit pricing no later than thirty (30) days after UNIVIEW receives Zoned
In's Specified Features. This prototype shall contain all of Zoned In's
Specified Features, or may contain whatever feature set to which the parties
may mutually agree in order to expedite delivery of the initial prototype.
The prototype shall also include the GUI that incorporates Zoned In's
trademark into the home page of the Z-Box. Once Zoned In accepts the
prototype, UNIVIEW shall provide nineteen (19) additional like prototypes to
Zoned In no later than fifteen (15) days after acceptance.
2.3 Zoned In shall have thirty (30) days from the date it receives the
initial Product prototype in which to accept or reject such Product
prototype in writing.
2.3.1 Acceptance or rejection shall be based upon a determination
by UNIVIEW and Zoned In as to whether the delivered Product prototype
operates substantially in accordance with Zoned In's Specified Features
and whether the per unit pricing is acceptable. Such acceptance shall
not be unreasonably withheld. If Zoned In fails to deliver to UNIVIEW
its written acceptance or rejection within the thirty (30) day
acceptance period, the Product prototype shall be deemed accepted and
approved for production.
2.3.2 If Zoned In gives UNIVIEW written notice of rejection of the
Product prototype or pricing within the thirty (30) day acceptance
period, then the parties will cooperate in determining a corrective
action plan, which may include modification of Zoned In's Specified
Features to obtain more favorable pricing. If the parties have
attempted good faith corrective actions and the corrected Product
prototype still fails to operate substantially in accordance with Zoned
In's Specified Features or if the pricing is still unacceptable, then
either party shall have the right to terminate this Agreement. Upon
such termination, all Confidential Information shall be returned to its
owner.
3.0 PRICING, REVENUE SHARING AND PAYMENT
3.1 For manufacturing quantities of the Product, pricing shall be based
upon written estimates provided from time to time by UNIVIEW to Zoned In.
Such pricing shall be finalized as may be mutually agreed prior to mass
production of the Product. Based upon initial discussions of the potential
features of the Product, the initial target price for the basic consumer
model of the Product is estimated to be $190.00 per unit and the initial
target price for the basic business model of the Product is estimated to be
$400.00 per unit. To the extent additional features are added to or
subtracted from the Product, the parties agree to revise pricing in advance
of manufacturing.
3.2 UNIVIEW shall provide its engineering and development services to Zoned
In at its cost, which costs shall be estimated by UNIVIEW and pre-approved
by Zoned In before they are incurred. These costs may be waived by mutual
agreement for any designated engineering project.
3.3 The parties agree to share the monthly fees collected from placement of
the Product with a customer, as may be mutually agreed, and to further
explore other sources of revenue sharing as additional streams of revenue
are developed. UNIVIEW shall receive $1.00 per unit per month for each
Product unit placed with a customer.
3.3.1 Zoned In shall pay all revenue owed to UNIVIEW monthly,
within fifteen (15) days after the end of each month. When making a
payment, Zoned In shall provide a written unaudited report, which
identifies the transactions giving rise to such payment. Zoned In
shall keep and maintain at its principal office, accurate, true and
complete books, records, accounts and all other information necessary
for an exact determination of all revenue with respect to which
payments are due to UNIVIEW hereunder for all periods. UNIVIEW will,
upon request, have the right to audit such transactions at its expense;
however, the cost of any audit that reveals an underpayment in excess
of five percent (5%) of the amount owing for the reporting period in
question shall be borne entirely by Zoned In.
3.3.2 Zoned In or a third party acting on Zoned In's behalf shall
provide an irrevocable Letter of Credit (LC) to the manufacturer of the
Product to secure payment for the Product a minimum of twelve (12)
weeks prior to any requested delivery date. Zoned In has the final
responsibility for providing the LC, however, UNIVIEW agrees to provide
any reasonable and necessary assistance to Zoned In to obtain an LC.
4.0 ORDERS AND DELIVERY
4.1 The initial delivery forecasted for Products shall be as follows:
100,000 units on September 1, 2000
250,000 units on October 1, 2000
500,000 units on November 1, 2000
750,000 units on December 1, 2000
Should either party determine that this schedule is impossible for any
reason, it must notify the other party in writing within five (5) days of
such determination at the addresses shown in this Agreement.
4.2 Delivery schedules for additional Product orders shall be as mutually
agreed in writing. Normally, orders must be received a minimum of twelve
(12) weeks in advance of a requested delivery date.
4.3 Zoned In shall keep UNIVIEW informed of its sales, orders received, and
forecasts of Product requirements.
4.4 UNIVIEW shall keep Zoned In informed of any changes in production
scheduling and the parties agree to coordinate Product orders and Product
delivery dates to meet Zoned In's requirements as closely as possible.
4.5 Zoned In agrees to obtain UNIVIEW's advance approval of sales and
purchase orders in excess of 250,000 units in order to determine appropriate
delivery dates.
4.6 Within two (2) business days after procurement, Zoned In shall provide
UNIVIEW with a paper copy of all purchase orders. However, Zoned In may
choose to supply purchase orders via e-mail. Specifically, all orders taken
on line will be delivered to UNIVIEW via e-mail.
4.7 Upon execution of this Agreement, Zoned In shall provide UNIVIEW with a
copy of all existing customer contracts for the placement and sale of
Products. Within two (2) business days after procurement, Zoned in shall
provide UNIVIEW with a copy of all customer contracts for the placement and
sale of Products entered into after the date of this Agreement. Within two
(2) business days after procurement, UNIVIEW will provide to Zoned In any
OEM agreements it intends to rely on to fulfill Zoned In's Purchase orders.
If UNIVIEW enters into subsequent OEM agreements Zoned IN shall be notified
within two (2) business days thereof.
4.8 Within five (5) business days after receiving a written purchase order
from Zoned In, UNIVIEW shall provide Zoned In with a Product delivery
schedule for the purchase order.
4.9 All deliveries will be made C.I.F. Zoned In's designated distribution
center(s), except that UNIVIEW will make freight arrangements in accordance
with Zoned In's reasonable instruction, if any, and Zoned In shall be
responsible for freight, duty, insurance and other associated charges. All
PRODUCT will be delivered in individual packaging co-branded with Zoned In's
and UNIVIEW's "▇▇▇▇▇▇ MathesR" trademarks. The packaging shall be pre-
approved by Zoned In.
4.10 Possession and risk of loss shall pass to Zoned In at delivery. Zoned
In shall pay all costs of insurance from the time of possession. UNIVIEW
shall cooperate fully with Zoned In with respect to Zoned In's obtaining
insurance protection for the Products.
5.0 LICENSE AND OWNERSHIP RIGHTS
5.1 All right, title and interest in and to preexisting technology of each
party, including all underlying intellectual property rights, shall remain
vested with the respective party of origin, and no licenses are granted to
either party to use such rights other than as expressly authorized in this
Agreement.
5.2 UNIVIEW shall own any underlying copyright, patent and trade secret
rights in any and all portions of the Product created solely by UNIVIEW in
the performance of this Agreement. Zoned In shall own any underlying
copyright, patent and trade secret rights in any and all portions of the
Product created solely by Zoned In.
5.3 All intellectual property, which is created as a joint effort with no
clear definition of credit, may be mutually owned property but cannot be
used or promoted without the consent or participation by both parties. Such
potential mutually owned intellectual property will be specified and agreed
prior to commencement of development.
5.4 Zoned In shall have a perpetual, world-wide, royalty-free, non-
exclusive license for the special application of UNIVIEW needed to convert
the set top box platform into the customized Zoned In Product, with the
right to sublicense the application to its customers only. Provided that
Zoned In substantially meets its delivery forecasts as set out in paragraph
4.1 above, the Z-Box as configured for Zoned In shall be provided
exclusively to Zoned In and UNIVIEW agrees that it will not sell the Z-Box
to another party for a period of three years after termination of this
agreement.
5.5 UNIVIEW shall have, for purposes of manufacturing the Product for Zoned
In, a perpetual, world-wide, royalty-free, non-exclusive license for any
Zoned In proprietary software necessary in the manufacture of the Product,
with right to sublicense such software, including all confidential know-how,
methods, inventions, discoveries and other proprietary information, in the
manufacture of the Product. However, Zoned In will be consulted prior to a
sublicense agreement being granted under this part for its approval. In
addition, any sublicensor shall provide Zoned In with non-disclosure non-
compete agreements as required by Zoned In.
5.6 Any off-the-shelf software UNIVIEW provides to Zoned In for Zoned In's
own use or for sublicensing to Zoned In'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 Zoned In agrees to be bound, relating to software ownership,
protection, trademark display and conditions for sublicensing the software
to Zoned In's customers. The software is UNIVIEW's own or UNIVIEW's
supplier's Proprietary information. All required software under this
section shall be pre-approved by Zoned In and Zoned In may contact suppliers
directly for licensing rights there under. The software referred to in this
section does not include the software required to operate the Z-Box as
purchased herein. Any software required to operate the Z-Box shall be
included in the price of the Z-Box and all of Zoned In's rights to the
software may be transferred with the purchase of the Z-Box under the first
sale doctrine.
6.0 MARKETING AND CUSTOMER SERVICE
6.1 The parties will cooperate to plan and execute joint seminars, public
relations events, press releases, participation in trade shows, conventions
and conferences, as mutually deemed appropriate.
6.2 Each party shall provide customer support as may be mutually agreed.
UNIVIEW shall provide customer support for the Product and Zoned In shall
provide customer support for its software.
7.0 CONFIDENTIALITY
7.1 Neither party will, for a period of three (3) years from the receipt of
Confidential Information from the other party, publish or disseminate,
except to employees with a need to know, any such Confidential Information.
7.2 Information shall not be considered "Confidential Information" if it
(i) is not clearly marked as being confidential by the transferring party or
if disclosed orally, is not confirmed in writing and so marked within thirty
(30) days of disclosure, (ii) was previously known by the receiving party,
(iii) becomes public knowledge without breach of this Agreement, (iv) is at
any time independently developed by the receiving party, (v) approved for
release by the party designating the information as Confidential, or (vi) is
lawfully obtained from a third party or parties without a duty of
confidentiality.
7.3 The obligations of the respective parties set forth in this Section
shall survive either the termination or expiration of this agreement.
7.4 Notwithstanding the above, the Receiving Party may use Residuals of any
portion of the Confidential Information to develop products and services and
to provide such other products and services to third parties. The term
"Residuals" means information in non-tangible form, which may be retained by
employees of the Receiving Party without the use of rote memorization and
who have had access to the Confidential Information, including ideas,
concepts, know-how or techniques contained therein. No patent or copyright
rights of the Disclosing Party are granted, either expressly or by
implication, in connection with any use of Residuals of any portion of the
Confidential Information.
8.0 PRODUCT CHANGE
8.1 UNIVIEW reserves the right to make modifications to the Product and its
components. UNIVIEW agrees to notify Zoned In of any change to the Product
that may affect Zoned In's Specified Features, reliability of the Product or
the packaging media. UNIVIEW shall provide Zoned In with written
notification of the aforementioned changes not less than thirty (30) days
prior to the proposed change. In the event any proposed change affects the
operation, reliability or life of the Product, or the ability to interface
the Product with other products, and in the event UNIVIEW and Zoned In fail
to reach agreement thereon, Zoned In shall have the right to terminate this
Agreement and/or any or all outstanding purchase orders for the Product, in
whole or in part.
9.0 TERM, TERMINATION AND CANCELLATIONS
9.1 The initial term of this Agreement shall begin on the Effective date
hereof and shall continue from year to year unless otherwise terminated
hereunder.
9.2 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.
9.2.1. 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. It is
understood that Zoned In is in a joint venture with a biometric company
that will provide hardware features associated with its secured portal
service. The parties agree that this does not constitute a competitor
as contemplated in this section.
9.2.2 If either party breaches this Agreement, the other party
shall have the right to terminate this Agreement in whole or any
portion hereof. Termination as a result of breach by either party
shall not be effective unless: (i) the breach is a material breach,
(ii) the party wishing to terminate provides written notice to the
other party of the occurrence and nature of the breach, and (iii) the
party to whom such notice was given fails to correct the breach with
thirty (30) days of receipt of such notice.
9.2.3 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 the giving of such notice.
9.2.4 Either party may terminate this Agreement if it determines,
in the exercise of good faith that completion of the work under Section
2 is infeasible. Termination under this section 9.2.4 can be
accomplished by giving written notice to that effect to the other
Party. Such termination will be effective thirty (30) days after the
giving of such notice.
9.3 Cancellation or Delay of Production Orders
9.3.1 Zoned In and UNIVIEW agree to comply with the terms and
conditions of the manufacturing contract between UNIVIEW and the
designated manufacturer of the Product including, among others,
obligations regarding cancellation of accepted purchase orders and
delays in Product shipments.
9.3.2 If UNIVIEW notifies Zoned In that the manufacturer cannot
deliver Product as promised within sixty (60) days or less before the
scheduled ship date, UNIVIEW agrees to use its best efforts to ensure
delivery of Product as soon as possible.
9.4 However, in the event a customer contract extends beyond any
termination or expiration of this Agreement, such products or services shall
remain in effect for the agreed upon time specified in the customer
agreement, subject to all of the terms and conditions of this Agreement as
if it were still in effect with respect to such products or services.
10.0 CRITICAL COMPONENT LIABILITY
10.1 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.
11.0 PRODUCT WARRANTY
11.1 Product warranties shall be as provided by the manufacturers of the
Product. UNIVIEW and Zoned In 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 twelve months from the
sale to the end-user with a maximum period of fifteen (15) months from
expedition date from the factory. 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." UNIVIEW agrees to assist
Zoned In customers with their warranty claims as part of the customer
service provided by UNIVIEW. Zoned In 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. Zoned In 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.
12.0 INTELLECTUAL PROPERTY INDEMNIFICATION
12.1.1 UNIVIEW represents and warrants that during the Term of this
Agreement, the Product and services, when properly used as contemplated
herein, will not infringe or misappropriate any United States
copyright, trademark, patent, or the trade secrets of any third
persons; 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)
Zoned In fully cooperates with UNIVIEW in the investigation,
preparation, defense or settlement of any claim; (iv) Zoned In has in
all respects complied with the terms of this Agreement, and (v) the
alleged infringement was not caused by Zoned In's alteration of the
Product or use of it in combination with other software, equipment or
technology not approved in writing by UNIVIEW.
12.1.2 Upon being notified of such a claim, UNIVIEW shall in its
sole discretion (i) defend through litigation or obtain through
negotiation the right of Zoned In to continue using the Product; (ii)
rework the Product so as to make it noninfringing 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 Zoned In and, in discharge of
its obligations, refund an equitable portion of fees actually paid by
Zoned In for the infringing Product or services. THESE ARE THE SOLE
AND EXCLUSIVE REMEDIES AVAILABLE FOR BREACH OF THE WARRANTY PROVIDED IN
THIS SUBSECTION
12.2 Zoned In agrees to defend, at its expense, any suits against UNIVIEW
based upon a claim that any article furnished hereunder by Zoned In to
UNIVIEW for use in connection with the Product, directly infringes a trade
secret, a U.S. patent, a mask work right, or a copyright, and to pay costs
and damages finally awarded in any such suit, provided that Zoned In is
notified promptly in writing of the suit and at Zoned In's request and at
its expense is given control of said suit and all requested reasonable
assistance for defense of same. This indemnity does not extend to any suit
based upon any infringement or alleged infringement of any patent, mask work
right, or copyright by the combination of any article furnished by Zoned In
with other elements if such infringement would be avoided by the use of the
article alone. The foregoing states the entire liability of Zoned In for
trade secret, patent, mask work right, or copyright infringement.
13.0 LIMITATION OF LIABILITY
13.1 UNIVIEW SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE PORTION OF THE
TOTAL CONTRACT PRICE ACTUALLY PAID BY ZONED IN. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES DUE
TO THE BREACH OF ANY PARTY'S OBLIGATIONS. ZONED IN'S AND UNIVIEW'S SOLE
REMEDY FOR ANY BREACH HEREUNDER SHALL BE LIMITED TO REMEDIES SET FORTH
HEREIN.
14.0 USE OF NAME AND TRADEMARK
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.
15.0 EQUITY PARTICIPATION
15.1 The parties hereby agree to a mutual equity participation in connection
with this Agreement. UNIVIEW agrees to issue to Zoned In a warrant to
purchase one (1) share of uniView Technologies Corporation par value $.10
common stock, exercisable at $4.00 per share, for every Z-Box shipped, up to
1 million warrants; and Zoned In agrees to issue to UNIVIEW a warrant to
purchase one (1) share of Zoned In par value $.001 common stock at $20.00
per share for every five (5) Z-boxes shipped, up to 200,000 warrants. The
warrants become available to each party as the Product ships and are
exercisable for three years thereafter.
15.2 Each party represents and warrants to the other that the issuance of
their respective shares of common stock (collectively, the "Shares") will
have been authorized by all necessary action, corporate or otherwise, and
that upon delivery of the stock certificates representing the shares, the
shares shall be validly issued, fully paid, and non-assessable.
15.3 Each party represents to the other that it is acquiring the Shares for
its own account for investment purposes only and not with a view towards
distribution. The parties understand and agree that it must bear the
economic risks of the Shares for an indefinite period of time. Except as
expressly set forth above, no representations or warranties have been made
to either party by the other, its officers or directors, or any agent,
employee or affiliate of any of them regarding either company. Each party
has conducted whatever investigations and due diligence activities it deems
appropriate in connection with its acquisition of the Shares. Each party
understands that no federal or state governmental authority has made any
finding or determination relating to the fairness of an investment in the
Shares and that no federal or state governmental authority has recommended
or endorsed, or will recommend or endorse, the Shares. Each party, in
making the decision to acquire the Shares, has relied upon independent
investigation made by it and has not relied on any information or
representations made by third parties. Each party understands that the
Shares have not been registered under the Securities Act or under state
securities laws and therefore it cannot dispose of any or all of the Shares
unless and until such Shares are subsequently registered under the
Securities Act of 1933 and applicable state securities laws or exemptions
from such registration are available. Each party acknowledges that a legend
substantially as follows will be placed on the certificates representing the
Shares:
THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE SECURITIES ACT), AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, OR (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 OR OTHER
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), AND IN EACH
CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES OR OTHER JURISDICTION.
16.0 GENERAL PROVISIONS
16.1 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. This Agreement supersedes any previous
agreements, either oral or written, relating to the subject matter herein.
16.2 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.
16.3 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 Florida.
16.4 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.
16.5 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, Zoned In and UNIVIEW will
cooperate on making a joint press release regarding the joint development of
the Product shortly after this Agreement is signed.
16.6 Notice hereunder shall be deemed to have been sufficiently given when
delivered in writing by certified or registered mail, or by a recognized
courier service, by either Party to the other and directed to:
If to UNIVIEW: If to Zoned In:
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇, President ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
uniView Technologies Products Group, Inc Zoned In, Inc.
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and to: and to:
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uniView Technologies Products Group, Inc Zoned In, Inc.
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16.6.1 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.
16.7 Neither this Agreement nor any interest hereunder may be transferred or
assigned, by operation of law or otherwise, by Zoned In without the prior
written consent UNIVIEW. It is the express intent of the parties, that
after issuance of a purchase order by Zoned In, UNIVIEW may assign the
executory portions of this agreement to a third party to perform the
remaining obligations hereunder.
16.8 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.
16.9 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 Zoned In (or any of its affiliates) and UNIVIEW (or any
of its affiliates), and nothing in this Agreement shall be constructed as
providing for the sharing of profits or losses arising out of the efforts of
either of UNIVIEW or Zoned In under this Agreement.
16.10 Zoned In and UNIVIEW agree not to export or reexport, or cause to
be exported or reexported, any technical data (including any Technical
Information) 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.
16.11 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.
16.12 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.
16.13 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.
16.14 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.
16.15 Nothing in this Agreement shall preclude either party from
entering into similar relationships with other companies, nor shall this
Agreement preclude either party from independently developing or marketing
any products that are similar to or compete with the other party's products;
provided, however, that the recipient of Confidential Information shall not
use it for any such purpose.
16.16 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 Miami, Florida in accordance
with the Rules of the American Arbitration Association. The arbitrators
shall have the authority to order discovery, depositions, preliminary and
permanent injunctions, specific performance, and other equitable relief.
The award shall be binding on the parties and may be entered in the courts
of any country. The arbitrators shall rule in accordance with the laws of
the State of Florida, United States of America. Notwithstanding the
foregoing, either party may apply to any court of competent jurisdiction for
injunctive relief without breach of this arbitration provision.
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.
Zoned In, Inc. uniView Technologies Products Group, Inc.
_/s/ ▇▇▇▇▇▇▇▇ ▇. Penna_____ _/s/ ▇▇▇▇▇▇ ▇. O'Mara_____
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇, President
Date: ___5/23/00__________ Date:___5/25/00____________