EXHIBIT 10.27
TEAMING AGREEMENT
BETWEEN
NUMEREX CORP.
AND
TELEMONITOREO S.A.
TEAMING AGREEMENT
THIS AGREEMENT made this 8th day of January, 1998
BETWEEN: Numerex Corp. (the "Company"), a Pennsylvania corporation, having its
principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇ 23 and ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
AND: TELEMONITOREO S.A., an Argentine Company, having its principal place of
business at ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ (1041),
Argentina.
WHEREAS the parties hereto have signed a letter of intent (the "Letter of
Intent") whereby the Company has agreed to sell and Telemonitoreo has agreed to
buy certain Derived Channel networking equipment (the "Equipment") for
deployment in Argentina.
WHEREAS in the Letter of Intent, the parties have agreed to move forward with
the preparation and execution of a definitive teaming agreement.
NOW THEREFORE, WITNESSETH that, in consideration of the premises and the terms,
conditions and mutual covenants and agreements contained herein, and for other
good and valuable consideration the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
1.1 The following terms used in this Agreement shall have the definitions
assigned to them hereunder, unless the subject matter or context of this
Agreement otherwise requires.
1.1.1 "Agreement" shall mean this teaming agreement.
1.1.2 "Derived Channel Connection" shall mean each port used in the
scanner comprised in the Equipment provided by the Company and
used by a Derived Channel Service provider.
1.1.3 "Derived Channel Network" shall mean the message switches,
scanners and other related equipment including software, used to
provide alarm and other data over voice transport services,
exclusive of subscriber terminal units ("STUs").
1.1.4 "Equipment" shall mean message switches, scanners and other
related equipment, used to provide alarm and other data over
voice services, exclusive of STUs, which form the Derived
Channel Network.
1.1.5 "Intellectual Property" the computer programs, documentation,
the object code and the source code for the computer programs,
the visual expressions, screen formats, report formats and other
design features of the computer programs, all ideas, methods,
algorithms, formulae and concepts used in developing and/or
incorporated into the computer programs or documentation and all
future modifications of the computer programs or documentation
made by the Company and provided to or used by or for
Telemonitoreo under this Agreement, and all copies of the
foregoing provided to or used by or for Telemonitoreo under this
Agreement.
1.1.6 "STU" shall mean subscriber terminal unit, to be supplied by the
Company or a licensed representative or an authorized dealer.
1.1.7 "Distribution Agreement" shall mean the Distribution Agreement
between The Company and Telemonitoreo S.A. dated March 11, 1997.
2. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF THE COMPANY
2.1 The Company has full legal right and authority to enter into this
Agreement.
2.2 The Company hereby agrees to sell to Telemonitoreo the Equipment
listed in Appendix 2.1 hereto.
2.3 The Company hereby grants to Telemonitoreo an exclusive,
non-transferable, paid up license to use the programs and the software
(in object-code only) installed or comprised in the Equipment to be
deployed in Argentina, which such license shall terminate at such time
as the Company ceases to receive payments pursuant to Section 5
hereof, or upon termination of this Agreement pursuant to Section 12
hereof.
2.4 The Company agrees to provide advice on matters related to sales and
marketing activities.
2.5 The Company shall provide, with regard to the Equipment, the warranty
in the form set forth in the Distribution Agreement.
2.6 The Company warrants that it is the rightful owner of the Equipment
with the right to license the software and warrants that the Equipment
is free and clear from any liens and encumbrances.
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2.7 The Company agrees to provide software maintenance free of charge and
hardware maintenance at a rate equal to fifty (50%) percent of its
standard list pricing.
2.8 The Company agrees to sell to Telemonitoreo STUs pursuant to the terms
and conditions set forth in the Distribution Agreement.
3. REPRESENTATIONS, WARRANTIES AND OBLIGATIONS OF TELEMONITOREO
3.1 Telemonitoreo has the full legal right and authority to enter into
this Agreement
3.2 Telemonitoreo represents that it has the exclusive contractual right
to provide Derived Channel Network services in Argentina on behalf of
Telecom S.A. and Telefonica de Argentina S.A. and to directly receive
monthly payments from each Derived Channel Connection in an amount in
excess of US$ * per month.
3.3 Telemonitoreo will be solely responsible for the installation,
maintenance and customer service and support for the Derived Channel
Network.
3.4 It shall be the obligation of Telemonitoreo to provide sales and
marketing support in connection with the Derived Channel Network.
Telemonitoreo will be the primary supplier of support to TELECOM
and/or Telefonica, and DCX will be the second line of support to
TELECOM and/or Telefonica.
3.5 Telemonitoreo agrees that all STUs used in the Derived Channel Network
shall be purchased solely from the Company, its affiliates or
authorized distributors.
3.6 Telemonitoreo shall be responsible, at its cost and expense, for
complying with all applicable laws and regulations in connection with
the Agreement and the Derived Channel Network, including laws and
regulations pertaining to (a) exports or imports of software and
related property, (b) use or remote use of software and related
property, or (c) registration of this Agreement. Telemonitoreo will
defend, indemnify and hold harmless the Company (and its affiliates,
and the respective directors, officers, employees and agents of the
Company and its affiliates) from and against all actions, claims,
damages or liabilities arising directly out of any violation by
Telemonitoreo of any such laws or regulations. Telemonitoreo will have
the sole right to control the defense thereof, but the Company will
have the right to participate therein at its own cost and expense.
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* Confidential information which has been omitted pursuant to Rule 24b-2
under the Securities Exchange Act of 1934 and filed separately with the
SEC.
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3.7 The fees and other amounts payable by Telemonitoreo to the Company
under this Agreement do not include any duties, charges or taxes of
any jurisdiction that may be assessed or imposed including export and
import duties and sales, use, excise, value added and personal
property taxes, excluding only taxes based upon the Company's net
income. Telemonitoreo will be responsible for and directly pay any
such duties, charges and taxes (exclusive of those associated with
Section 5 hereof), and Telemonitoreo will promptly reimburse the
Company for any such taxes payable or collectable by the Company.
4. ORDER, SUPPLY, PAYMENT OF EQUIPMENT AND AUDIT
4.1 Telemonitoreo shall place an initial order (the "Initial Order") for
not less than $1 Million of Equipment, not later than October 17,
1997.
4.2 The Company agrees to ship Equipment in connection with the Initial
Order, on or before October 31, 1997.
4.3 Telemonitoreo agrees to pay for the Equipment shipped pursuant to the
Initial Order within 30 days of the earlier occurrence of the
attainment of 360 subscribers or April 30, 1998.
4.4 After receipt of payment in connection with the Initial Order the
Company shall provide $1 Million (or such higher amount equal to the
Initial Order) of additional Equipment, at no additional charge.
4.5 In connection with all subsequent orders (the "Subsequent Orders") of
Equipment, Telemonitoreo shall pay, within thirty (30) days of
receipt, 50% of the standard list price, which shall be deemed payment
in full for Equipment subject to the Subsequent Orders.
4.6 The Company may, at its cost and expense and by giving at least three
(3) business days' prior written notice to Telemonitoreo, enter
Telemonitoreo's locations during normal business hours and audit
Telemonitoreo's compliance with the provisions of this Agreement.
5. PAYMENT TO THE COMPANY
5.1 Telemonitoreo shall pay to the Company $ * per month, for each Derived
Channel Connection, until the earlier of five (5) years from the date
hereof, or the date upon which twenty thousand (20,000) Derived
Channel Connections have been achieved.
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* Confidential information which has been omitted pursuant to Rule 24b-2
under the Securities Exchange Act of 1934 and filed separately with the
SEC.
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5.2 Upon the earlier of five (5) years from the date hereof, or the date
upon which twenty thousand (20,000) Derived Channel Connections have
been achieved, Telemonitoreo shall pay to the Company $ * per month,
for each Derived Channel Connection.
5.3 An accounting of Derived Channel Connections will be made on a monthly
basis and Telemonitoreo shall pay to the Company all amounts due
within 30 days of the end of each month.
6. ASSIGNMENT
6.1 This Agreement may not be assigned by either party without the prior
written agreement of the other party.
7. TITLE AND RISKS
7.1 Title to the Equipment shall pass to Telemonitoreo upon delivery of
the Equipment for which payment has been received by the Company.
Telemonitoreo shall be deemed the owner of the remaining Equipment,
which had been contributed free of charge and delivered by the Company
once twenty thousand (20,000) Derived Channel Connections have been
achieved and the Company has received payments pursuant to Sections
5.1 and 5.2 hereof equal to the value of the Equipment contributed
free of charge.
7.2 Risk of loss or damage to the Equipment shall be assumed by
Telemonitoreo upon delivery.
8. RIGHT OF FIRST REFUSAL
8.1 Before accepting an offer by a third party to acquire a controlling
interest in the voting shares of Telemonitoreo or the assets of the
Telemonitoreo, Telemonitoreo shall first offer the Company the right
to acquire the portion of Telemonitoreo associated with providing
Derived Channel Network services and the related customer base at a
price (or other terms and conditions associated with the offer) equal
to the value of portion of the offer associated with the Derived
Channel Network services business, by sending a notice to that effect
to the Company. Failure by the Company to accept such offer within 30
days of the date of receipt of such notice shall constitute evidence
of its rejection of such right of first refusal. Should Telemonitoreo
sell the controlling interest during the life of this contract, the
terms of this contract shall remain in force.
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* Confidential information which has been omitted pursuant to Rule 24b-2
under the Securities Exchange Act of 1934 and filed separately with the
SEC.
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9. THE COMPANY'S INTELLECTUAL PROPRIETARY
9.1 Telemonitoreo acknowledges that the Intellectual Property which is not
now or hereinafter becomes in the public domain in the manner used by
or aggregated by the Company, are trade secrets and proprietary
property of the Company, having substantial commercial value to the
Company. Telemonitoreo acknowledges that the restrictions in this
Agreement are reasonable and necessary to protect the Company's
legitimate business interests. All of the Company's Intellectual
Proprietary in Telemonitoreo's possession will be held in strict
confidence by Telemonitoreo, and Telemonitoreo will take all steps
reasonably necessary to preserve the confidentiality thereof.
Telemonitoreo will not, directly or indirectly, communicate, publish,
display, loan, give or otherwise disclose any such Intellectual
Proprietary to any person, or permit any person to have access to or
possession of such Intellectual Property, except for the purposes
permitted under this Agreement.
9.2 Telemonitoreo acknowledges that any breach of any of the provisions of
this Section 9.1 will result in irreparable injury to the Company for
which money damages could not adequately compensate. If there is a
breach, the Company will be entitled, in addition to all other rights
and remedies which the Company may have at law and equity, to have a
decree of specific performance or an injunction issued requiring the
breach to be cured (if curable) or enjoining all persons involved from
continuing the breach. The existence of any claim or cause of action
which Telemonitoreo or any other person may have against the Company
will not constitute a defense or bar the enforcement of any of the
provisions of this Section 9. Telemonitoreo acknowledges that the
restrictions in this Agreement are reasonable and necessary to protect
legitimate business interests of the Company. The Company will be
liable for any breach of this Agreement by any of its employees or any
other person who obtains access to or possession of any Company
Proprietary Item.
10. INSURANCE
10.1 Telemonitoreo shall, at its sole cost and expense, procure, maintain
and pay for and keep in force adequate (as determined by mutual
agreement of Telemonitoreo and the Company) comprehensive general
liability coverage on an occurrence basis for bodily injury and
property damage. Such coverage shall include contractual, owners and
contractors protective, products/completed operations, occurrence
property damage, personal injury and contingent employer's liability
endorsements, a cross liability clause, name the Company as an
additional named insured and contain a severability of interests
clause.
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11. REGULATORY APPROVALS AND LICENSES
1. It shall be the obligation of Telemonitoreo to procure any and all
regulatory approvals and licenses necessary in connection with the
Equipment and the Derived Channel Network.
12. TERMINATION AND THE EFFECT OF TERMINATION
12.1 Telemonitoreo and the Company may terminate this Agreement by mutual
consent.
12.2 In the event Telemonitoreo becomes insolvent or bankrupt, the Company
shall be entitled to terminate this Agreement.
12.3 In the event that one of the parties to this Agreement is in material
breach thereof, and such breach is not adequately remedied within
thirty (30) days of receipt of written notice of the material breach,
the non-breaching party shall be entitled to terminate the Agreement.
12.4 The Company may terminate this Agreement should Telemonitoreo fail to
make any payments due pursuant to Sections 4 and 5 hereof within 30
days of their respective due date.
12.5 In the case of termination of this Agreement the provisions of
Sections 2.6, 3.2, 3.3, 3.4, 3.6, 3.7, 4.5, 4.6, 5, 6.1, 7, 9, 10, 11,
13, 17, 21 and 22 as well as any other provision applicable to the
implementation of such provisions shall survive termination of this
Agreement for any reason, until by their terms they are no longer
applicable.
12.6 In the event of termination of this Agreement as provided in Section
12.3, such termination shall be without prejudice to any rights that
the terminating party may have against the breaching party or parties
or any other person under the terms of this Agreement or otherwise.
13. WARRANTY AND INDEMNIFICATION
13.1 Neither party shall be liable to the other for any indirect,
incidental, special, consequential or special damages arising out of
or in connection with this Agreement even if notified of the
possibility of such damages.
13.2 Without prejudice to any other rights or remedies available to the
Company, Telemonitoreo shall indemnify the Company against:
(a) all loss of or damage to any property belonging to the Company,
to the extent arising as a result of any act or omission of
Telemonitoreo, its
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employees, agents, or subcontractors (or their employees or
agents) in relation to performance of this Agreement;
(b) All claims and proceedings, damages, costs and expenses arising
or incurred in respect of:
(i) Death or personal injury of any employee of Telemonitoreo or
any third party, its agents or subcontractors (or their
employees or agents) employed in or in connection with the
performance of this Agreement; or
(ii) Death or personal injury to any other person to the extent
arising as a result of the acts or omissions of
Telemonitoreo, its employees, agents or subcontractors (or
their employees or agents) in relation to the performance or
associated with this Agreement; or
(iii) Loss of or damage to any property to the extent arising as
a result of any act or omission of Telemonitoreo, its
employees, agents or subcontractors (or their employees or
agents) in relation to the performance, or associated with
this Agreement.
(iv) any breach, violation, or non-performance of any condition,
covenant, obligation, representation or warranty of
Telemonitoreo in relation to this Agreement.
13.3 Without prejudice to any other rights and remedies available to
Telemonitoreo, the Company shall indemnify Telemonitoreo against:
(a) all loss of or damage to any property belonging to Telemonitoreo,
to the extent arising as a result of any act or omission of the
Company, its employees, agents, or subcontractors (or their
employees or agents) in relation to performance of this
Agreement;
(b) All claims and proceedings, damages, costs and expenses arising
or incurred in respect of:
(i) Death or personal injury of any employee of Telemonitoreo or
any third party, its agents or subcontractors (or their
employees or agents) employed in or in connection with the
performance of this Agreement; or
(ii) Death or personal injury to any other person to the extent
arising as a result of the acts or omissions of
Telemonitoreo, its employees, agents or subcontractors (or
their employees or agents) in relation to the performance or
associated with this Agreement; or
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(iii) Loss of or damage to any property to the extent arising as
a result of any act or omission of Telemonitoreo, its
employees, agents or subcontractors (or their employees or
agents) in relation to the performance, or associated with
this Agreement.
(iv) any breach, violation, or non-performance of any condition,
covenant, obligation, representation or warranty of the
Company in relation to this Agreement.
13.4 EXCEPT AS EXPRESSLY STATED HEREIN, THE COMPANY MAKES NO
REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED,
INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TO TELEMONITOREO REGARDING THE EQUIPMENT, STUs AND
THE INTELLECTUAL PROPERTY, OR ANY OTHER MATTER PERTAINING TO THIS
AGREEMENT.
14. NOTICES
14.1 The parties hereby agree that any notice, request, demand, consent,
approval, correspondence or other communication required or permitted
to be given hereunder, shall be in writing and be sent registered
mail, telex, telegram, facsimile, or other agreeable electric means
addressed as follows:
NUMEREX CORP.: TELEMONITOREO S.A.
▇▇▇▇ ▇. ▇▇▇▇, President and ▇▇▇▇▇ ▇. Ghillione
Chief Executive Officer President
NUMEREX CORP. TELEMONITOREO, S.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇ Piso 5, Oficina ▇▇
▇▇▇▇▇ ▇▇ and Woodmont Road Buenos Aires
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ Argentina
copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
BLANK ROME COMISKY
& ▇▇▇▇▇▇▇▇
One ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
15. ENTIRE AGREEMENT
15.1 This Agreement and the Appendices thereto contain the entire agreement
between the parties hereto relating to the subject matter herein and
supersedes any prior
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agreements, obligations, statements, representations, understandings,
communications and negotiations between the parties, whether oral or
written, including the Letter of Intent. Except as otherwise provided
in this Agreement, this Agreement shall bind the parties and the
parties hereby agree that there are no terms and obligations,
covenants, representations, statements or conditions, oral or written,
other than those contained herein.
16. SEVERANCE
16.1 In the event any of the provisions of this Agreement are held to be
illegal, invalid or unenforceable, any such provision shall, to the
extent permitted by law, be severed and the remaining provisions of
the Agreement remain in full force and effect.
17. CONFIDENTIALITY
17.1 It is anticipated that with respect to any matter related to this
Agreement, it may be necessary for the parties to exchange
"Confidential Information." Confidential Information is information of
the parties or of their suppliers, whether written or in any other
tangible form, or oral including, but not limited to, plans, drawings
and information related to design, technical, performance, sales,
financial, personnel, contractual and marketing matters, including
contracts, ideas and concepts, as well as software, belonging to
either of the parties or to their suppliers and which is provided in
relation to this Agreement. Confidential Information shall remain the
property of the disclosing party or of its suppliers as the case may
be, and will be returned to the disclosing party upon written request
together with all copies that could have been made, unless otherwise
agreed upon in writing.
17.2 Confidential Information shall be protected by the receiving party
using the same degree of care as used to protect similar valuable
information used and reproduced by the receiving party solely for the
purposes of this Agreement and disclosed only to those persons having
a need to know, who shall be made aware of the obligations hereunder.
18. FORCE MAJEURE; EXCLUSION FOR UNAUTHORIZED ACTIONS
18.1 Neither party shall be liable for any delay or failure to perform its
obligations under this Agreement arising out of a cause beyond its
control or without its fault or negligence. Such causes may include,
but are not limited to, fires, floods, and natural disasters. This
clause does not apply to the acquisition of Commercial or Government
Licenses or Approvals.
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19. AMENDMENT
19.1 This Agreement shall not be modified, varied, amended, or supplemented
except in a writing executed by both parties.
20. TIME OF ESSENCE
20.1 Time is of the essence in any matter relating to the performance of
this Agreement.
21. LAW AND DOMICILE
21.1 This Agreement shall be governed by and construed in accordance with
the internal laws (without giving effect to the conflict of laws
principles thereto) of the Commonwealth of Pennsylvania.
22. JURISDICTION AND SERVICE OF PROCESS
22.1 Any action or proceedings seeking to enforce any term or provision of
this Agreement, or based on any right arising out of this Agreement,
may be instituted against a party only in the courts of the
Commonwealth of Pennsylvania, or, if it can acquire jurisdiction, in
the United States District Court for the Eastern District of
Pennsylvania, and the parties irrevocably consent and submit to the
exclusive jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waive any
objection which they may now have or hereafter have to the laying of
the venue of any such action or proceedings in such courts. Service of
process, and any other notice of communication, in any such action or
proceedings shall be effective against or as to a party if given by
first class certified mail or registered mail, return receipt
requested, or by any other means of mail which requires a signed
receipt, postage prepaid, mailed to such party at the address to which
such party is to be sent notices in accordance with the notice
provisions of this Agreement, and the parties irrevocably consent to
such service of process, giving of notices and transmission of
communications. This section shall not diminish or otherwise affect
the right of a party to serve process in any other matter permitted
under applicable law.
IN WITNESS WHEREOF the parties hereto have, through their duly authorized
representative, executed this Agreement on this 8th day of January, 1998.
NUMEREX CORP. TELEMONITOREO S.A.
/s/ ▇▇▇▇ ▇. ▇▇▇▇ /s/ ▇▇▇▇▇ ▇. Ghillione
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▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. Ghillione,
President President
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