[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED AND SEPARATELY FILED
WITH THE COMMISSION, PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT
PURSUANT TO RULE 406 UNDER THE SECURITIES ACT OF 1933, AS AMENDED.
TRADEMARK LICENSE AGREEMENT
AGREEMENT made this date by and between uniView Technologies
Corporation, a Texas corporation, whose principal place of business is
located at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "uniView") and Avmark, Inc., whose principal place of
business is located at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(hereinafter called "Avmark").
WHEREAS uniView represents and warrants that it is the exclusive
owner of all rights in and to the valuable trademark "CurtisMathes"
(hereinafter referred to as the "▇▇▇▇"), in relation to television sets
and related products, and further represents that, within the past three
years, consumer electronics products have been distributed bearing the
▇▇▇▇ throughout the United States of America, and that its rights are
valid and subsisting; and
WHEREAS Avmark desires to use the ▇▇▇▇ as hereinafter described.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, it is hereby agreed:
1. GRANT OF LICENSE. (a) Grant. For the use, the Term, in the
Territory, and on the terms and subject to the conditions hereinafter set
forth, uniView hereby grants to Avmark a license to use the ▇▇▇▇
("License") as provided herein solely with respect to Licensed Products,
as defined hereinbelow. Avmark may manufacture, distribute, market, and
sell Licensed Products and shall use the ▇▇▇▇ only on Licensed Products
manufactured in accordance with the specifications, directions and
processes approved in writing by uniView.
(b) Exclusivity. The License is exclusive for Licensed Products
only and, so long as Avmark duly performs its obligations hereunder,
uniView shall not itself use or grant others the right or license to use
the ▇▇▇▇ for the above purposes in the Territory hereinafter set forth.
Nothing in this Agreement shall be construed to prevent uniView from
granting any other licenses for the use of the ▇▇▇▇ in connection with
products not covered by this Agreement, or from otherwise utilizing the
▇▇▇▇ in any manner whatsoever.
(c) Web Site. Avmark shall have a further right and license during
the term of this Agreement to use the Web site and domain name
▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ in connection with services offered by Avmark to
consumers relating to this Agreement. uniView or its designee shall
develop, maintain and host the Web site pursuant to a separate Web
Hosting Agreement signed by the parties. Avmark shall pay to uniView or
its designee its most favored rate to develop, maintain and host the Web
site on its server. Avmark shall obtain uniView's prior written approval
of all content published on the Web site.
(d) No Other Grant. Avmark is granted no other right, title, or
license to the ▇▇▇▇ or any other uniView trademark.
2. LICENSED PRODUCTS. (a) "Licensed Products" means the following
traditional consumer electronics products, either stand alone or in
combination: (1) 5" through 36" direct view television sets; (2)
projection television sets; (3) digital television sets; (4) Video
Cassette Recorders (VCR's); (5) Digital Video Disc (DVD) units; (6) all
categories of audio products, including portable audio, home audio, and
digital audio; and (7) telephones and telephone answering devices.
(b) uniView hereby specifically excludes from this Agreement (1)
set top box (STB) units which connect to the Internet and (2) computers;
either or both of which may also contain many of the same functions and
features as those offered by the foregoing Licensed Products.
3. TERRITORY. The License extends only to the United States of
America and Canada (hereinafter referred to as the "Territory"). Avmark
agrees that it will not make or authorize any direct or indirect use of
the ▇▇▇▇ in any other area, and that it will not knowingly sell Licensed
Products to persons who intend or are likely to resell or redistribute
them in any other area.
4. TERM. The initial term of this License shall commence on July 1,
2000, and shall end on June 30, 2005, unless sooner terminated in
accordance with the provisions hereof. At the end of this term, the
License may thereafter be renewed by mutual agreement of the parties for
successive terms through June 2020.
5. ROYALTY. (a) Rate. Avmark agrees to pay to uniView as royalty a
sum equal to **** percent (****) of the net cost of the Licensed
Products sold by Avmark or any of its affiliated, associated or
subsidiary companies to Kmart Corporation or similar vendor ("Vendor"),
as per Vendor's invoice, prior to loads for freight, advertising or
royalties. No other costs incurred in the manufacture, sale,
distribution or exploitation of the Licensed Products shall be deductible
from the calculation of any royalty.
(b) Minimum Royalty. Avmark further agrees to pay to uniView, as
a minimum guarantee against royalties to be paid to uniView during each
year of the contract term, the following minimum annual royalties:
July 1, 2000 through June 30, 2001 $****
July 1, 2001 through June 30, 2002 $****
July 1, 2002 through June 30, 2003 $****
July 1, 2003 through June 30, 2004 $****
July 1, 2004 through June 30, 2005 $****
The minimum royalty shall be paid annually as it accrues, within
sixty (60) days after the close of each contract year during the term of
this Agreement or any extension hereof. Payment shall accompany the
statements furnished as required below.
(c) Royalty Payments. Royalties shall be due within twenty (20)
days after the close of each contract quarter in which earned, during the
term of this Agreement or any extension hereof, and payment shall
accompany the statements furnished as required below. The receipt or
acceptance by uniView of any of the statements furnished pursuant to this
Agreement or of any royalties paid hereunder (or the cashing of any
royalty checks paid hereunder) shall not preclude uniView from verifying
the correctness thereof at any time, and in the event that any
inconsistencies or mistakes are discovered in such statements or
payments, they shall immediately be rectified and the appropriate payment
made by Avmark. Domestic taxes payable in the Territory shall be payable
by Avmark.
(d) Direct Payment. Subject to obtaining uniView's prior
written consent, not to be unreasonably withheld, Avmark shall have the
right to structure one or more of its deals with its Vendors or
manufacturers so that the trademark royalty, or a sum in lieu of royalty,
is paid directly to uniView. In that event, uniView shall receive and
retain only those sums reflected in this agreement as being due to
uniView, and shall promptly remit to Avmark all sums in excess thereof.
In such event, uniView agrees to provide to Avmark a copy of all
statements which accompanied any such payments received by uniView.
(e) Royalty Rebates. uniView agrees to rebate to Avmark ****
percent (****%) of the amount of royalties paid to uniView by Avmark in
excess of **** Dollars ($****) for any contract year during the term of
this License.
(f) Royalty Abatement. uniView agrees that Avmark shall be liable
only for those royalties that are actually paid to Avmark by a Vendor and
Avmark shall be relieved of its payment obligation to uniView with
respect to royalties that are not paid by the Vendor after commercially
reasonable efforts by Avmark to collect the same.
(g) Periodic Statements. (i) Within twenty (20) days after the
close of each contract quarter during the term of this Agreement or any
extension hereof, Avmark shall furnish to uniView, in a form reasonably
acceptable to uniView, a complete and accurate statement certified to be
accurate by Avmark showing the model number, quantity shipped, invoice
cost to Vendor, and Vendor PO number for all Licensed Products
distributed and/or sold by Avmark during the preceding contract quarter.
Such statements shall be furnished to uniView whether or not any of the
Licensed Products have been sold during the preceding contract quarter.
(ii) Within sixty (60) days after the end of each year of this
Agreement or any extension hereof, Avmark shall furnish to uniView, in a
form reasonably acceptable to uniView, a complete and accurate statement
certified to be accurate by Avmark showing the model number, quantity
shipped, invoice cost to Vendor, and Vendor PO number for all Licensed
Products distributed and/or sold by Avmark during the preceding contract
year, as shown on Avmark's business books and records. If such statement
discloses any underpayment of royalties for that year, including minimum
royalties, Avmark shall pay the amount of the underpayment to uniView at
the time of the statement required under this paragraph. Any overpayment
shall be credited by uniView to Avmark's account.
(iii) All books and records maintained by Avmark relating to
operations concerning this License shall be available for inspection by
uniView or any of its designated representatives at any reasonable,
mutually agreeable time and Avmark shall cooperate with any person making
such examination on behalf of uniView. All books of account and records
shall be kept available for at least two (2) years after the termination
of this License. Such inspection shall be at uniView's expense unless a
discrepancy in the amount of five percent (5%) or more is discovered, in
which event Avmark shall bear such expense, including without limitation
accounting, auditing and legal fees and costs.
6. TRADEMARK USAGE. (a) Approval by uniView. Avmark shall use the
▇▇▇▇ in accordance with all applicable Federal, State and local laws
pertaining to the use of trademarks in the Territory and shall provide
uniView with artwork of all proposed advertising and promotional
materials containing the ▇▇▇▇, including without limitation artwork for
tags, labels, imprints, cartons, containers, packaging and wrapping
material, as well as artwork of all advertising, promotion and display
material which depicts or portrays the ▇▇▇▇, and shall use the ▇▇▇▇ only
as may be approved in writing by uniView. uniView shall have the right
to disapprove any materials submitted if it determines, in the exercise
of its good faith judgment, that the materials in question would impair
the value and goodwill associated with the ▇▇▇▇ by reason of (i)
noncompliance with uniView's trademark guidelines; (ii) use of materials
that are unethical, immoral, or offensive to good taste; (iii) failure to
carry proper copyright or trademark notices; or (iv) any other reasonable
cause. uniView agrees to notify Avmark in writing of its approval of any
materials submitted under this subsection within ten (10) calendar days
after uniView's confirmed receipt of the materials, and agrees, in the
case of a disapproval, to notify Avmark in writing of the reasons for
disapproval. uniView's failure to respond within that 10-day period
shall be deemed approval of the submission in question.
(b) Modification of Usage. Upon disapproval and notice from
uniView specifying the non-conformance of any materials submitted under
this subsection, Avmark shall promptly modify any usage and any material
that does not conform to the foregoing provisions of this Agreement.
Avmark shall notify its distributors and customers of any such non-
conformance as to materials or products already distributed, as may be
reasonably requested by uniView.
7. PROTECTION OF TRADEMARK AND LOGOS. (a) Sole owner. uniView is the
sole owner of the ▇▇▇▇ and all goodwill associated therewith. Avmark's
use of the ▇▇▇▇ inures solely to the benefit of uniView and Avmark shall
not at any time acquire any rights in the ▇▇▇▇ by virtue of its use of
the ▇▇▇▇. Avmark shall not do anything that might harm the reputation or
goodwill of the ▇▇▇▇. Avmark shall not challenge uniView's rights in or
attempt to register the ▇▇▇▇, or any other name or ▇▇▇▇ owned by uniView
or substantially similar thereto. Avmark shall take no action
inconsistent with uniView's rights in the ▇▇▇▇.
(b) Assignment of Rights. Avmark agrees to cooperate fully and in
good faith with uniView for the purpose of securing and preserving
uniView's rights in and to the ▇▇▇▇. Nothing contained in this Agreement
shall be construed as an assignment or grant to Avmark of any right,
title or interest in or to the ▇▇▇▇, it being understood that all rights
relating thereto are reserved by uniView, except for the License
hereunder to Avmark of the right to use the ▇▇▇▇ only as specifically and
expressly provided in this Agreement. If at any time Avmark acquires any
rights in, or registrations or applications for, the ▇▇▇▇ by operation of
law or otherwise, it will immediately upon request by uniView and at no
expense to uniView, assign such rights, registrations, or applications to
uniView, along with any and all associated goodwill, and Avmark hereby
assigns and transfers to uniView all ▇▇▇▇ and trademark rights created by
uses of the ▇▇▇▇, together with the goodwill of the business in
connection with which the ▇▇▇▇ are used. Avmark hereby agrees that at
the termination or expiration of this Agreement, including any extension
hereof, Avmark will be deemed to have assigned, transferred and conveyed
to uniView any rights, equities, good will, titles or other rights in and
to the ▇▇▇▇ which may have been obtained by Avmark or which may have
vested in Avmark in pursuance of any endeavors covered hereby, and that
Avmark will execute any instruments requested by uniView to accomplish or
confirm the foregoing. Any such assignment, transfer or conveyance shall
be without other consideration than the mutual covenants and
considerations of this Agreement.
(c) Notice of Adverse Uses. Avmark shall give prompt notice to
uniView of any adverse uses of marks confusingly similar to the ▇▇▇▇ in
the Territory and, except as hereinafter provided, agrees to take no
action of any kind with respect thereto except by the express written
authorization of uniView. uniView may at its option commence, prosecute
or defend any action or claim concerning the ▇▇▇▇. uniView shall have
the right to control any such litigation. Should uniView not take
reasonably necessary action within a reasonable time, to protect the ▇▇▇▇
from such adverse uses within the Territory during the term of this
License, then Avmark shall have the right, after giving uniView
reasonable notice, to institute a lawsuit in its own name and on its own
behalf, to enjoin such adverse use, providing that Avmark first provides
uniView with reasonable security to protect uniView from possible
financial liability.
(d) Records Relative to ▇▇▇▇ Uses. Avmark shall keep appropriate
records (including copies of pertinent invoices and correspondence)
relating to the dates when each of the Licensed Products is first placed
on sale or sold in the Territory, and the dates of first use of the ▇▇▇▇
on the Licensed Products and advertising materials. At uniView's
request, Avmark shall supply uniView with samples of the trademark usages
in question and other information that will enable uniView to renew, or
to complete and obtain trademark or design applications or registrations,
or to evaluate or oppose any trademark or design applications,
registrations, or uses of third parties.
(e) Registered User Laws. As to those countries requiring
applications to register Avmark as a registered user of the ▇▇▇▇ used on
or in connection with the Licensed Products, or requiring the recordation
of this Agreement, Avmark agrees to execute and deliver to the proper
authorities all necessary documents for those purposes and to furnish
uniView with a copy of all such documents so filed.
8. INDEMNIFICATION BY AVMARK AND PRODUCT LIABILITY INSURANCE. uniView
assumes no liability to Avmark or third parties with respect to the
performance of the Licensed Products manufactured or sold by Avmark under
the ▇▇▇▇. Avmark hereby indemnifies uniView and undertakes to defend
itself and uniView against and hold uniView harmless from any claims,
suits, loss and damage arising out of any allegedly unauthorized use of
any trademark, patent, process, idea, method or device by Avmark in
connection with the Licensed Products or any other alleged action by
Avmark, including, without limitation, any allegation that Avmark had
actual or apparent authority from uniView for its actions as an agent of
"▇▇▇▇▇▇ ▇▇▇▇▇▇" or uniView, any alleged act of unfair competition, and
also from any claims, suits, loss and damage arising out of alleged
defects in the Licensed Products. Avmark agrees that it will obtain, at
its own expense, product liability insurance in a mutually agreed amount
from a recognized insurance company reasonably acceptable to uniView,
providing adequate protection for uniView (as well as for Avmark) against
any claims, suits, loss or damage arising out of any alleged defects in
the Licensed Products. As proof of such insurance, a fully paid
certificate of insurance naming uniView as an insured party will be
submitted to uniView by Avmark for uniView's prior approval before any
Licensed Product is distributed or sold, and at the latest within thirty
(30) days after the date of this Agreement. Any proposed change in
certificates of insurance shall be submitted to uniView for its prior
approval. uniView shall be entitled to a copy of the then prevailing
certificate of insurance, which shall be furnished to uniView by Avmark.
9. QUALITY CONTROL. (a) Quality. Avmark agrees that the Licensed
Products shall be manufactured, sold and distributed in accordance with
all applicable Federal, State and local laws, including but not limited
to product safety and labeling, and that the same shall not reflect
adversely upon uniView or the ▇▇▇▇. All Licensed Products shall be
manufactured in accordance with specifications, directions, and processes
approved in writing by uniView from time to time. uniView agrees to
notify Avmark in writing of its approval of any materials submitted under
this subsection within ten (10) calendar days after uniView's confirmed
receipt of the materials, and agrees, in the case of a disapproval, to
notify Avmark in writing of the reasons for disapproval. uniView's
failure to respond within that 10-day period shall be deemed approval of
the submission in question.
(b) Manufacturer's Records of Quality Assurance. Avmark shall, upon
request, furnish to uniView manufacturing quality assurance records
evidencing compliance with the sampling procedures of MIL STD 105E Level
II, or a comparable standard generally recognized in the industry, and
shall report to uniView the results thereof pertaining to the quality of
the Licensed Products being manufactured including, without limitation,
product life tests, failure ratios, and reject rates.
(c) Inspection of Manufacturing Facilities. Avmark agrees to allow
or facilitate uniView's authorized agents, at any and all times upon
reasonable notice and during regular business hours, to enter the
premises where Licensed Products are being manufactured to inspect the
same.
10. WARRANTY AND SERVICING. uniView and "▇▇▇▇▇▇ ▇▇▇▇▇▇" shall have
no obligation to provide any warranty or servicing for any Licensed
Product. Avmark agrees to clearly notify its customers and end-users of
the Licensed Products of the name and address of the warranty and
servicing provider for the Licensed Products.
11. ADVERTISING AND DISTRIBUTION. Avmark agrees to use its best efforts
to advertise and promote the Licensed Products during the term of this
Agreement. Avmark agrees that during the term of this License it will
diligently and continuously manufacture, distribute and sell the Licensed
Products and that it will make and maintain adequate arrangement for
their distribution.
12. TERMINATION. (a) Material Default. Should Avmark fail to
comply with any material provision of this Agreement, uniView may
terminate this License upon thirty (30) days' written notice to Avmark,
provided that Avmark has not corrected such default during the notice
period. Provided further, that should such default occur as a sole
result of a Vendor's inability or refusal to pay royalties, then, after
commercially reasonable efforts by Avmark to collect the same, Avmark
shall be permitted a reasonable period of time to replace such Vendor
before uniView terminates this License.
(b) Cure of Breach. As a condition precedent to any assertion by
either party that the other is in default in performing any obligation
contained herein, the party alleging the default must advise the other of
the specific facts upon which it is claimed that the other is in default
and the said other party shall be allowed a period of thirty (30) days
after receipt of such notice, within which to cure such default. The
parties agree that no breach of the terms hereof will be deemed
incurable.
(c) Production Quantities of Licensed Products. If Avmark shall
not have commenced in good faith to manufacture Licensed Products in
substantial quantities on or before September 1, 2000, uniView, in
addition to all other remedies available to it hereunder, may at its sole
option terminate this License with respect to any Licensed Products which
have not yet been manufactured and distributed, by giving written notice
of termination to Avmark. Avmark may nullify such termination by
commencing to manufacture Licensed Products in substantial quantities
within thirty (30) days and promptly providing uniView with written
notice that it has done so.
(d) Active Distribution of Audio and Telephone Licensed Products.
If Avmark shall not have actively marketed and sold audio and telephone
Licensed Products on or before June 30, 2002, uniView, in addition to
all other remedies available to it hereunder, may at its sole option
terminate this License with respect to any audio and telephone Licensed
Products which have not yet been manufactured and distributed, by giving
written notice of such termination to Avmark.
13. FINAL STATEMENT UPON TERMINATION OR EXPIRATION. Sixty (60) days
before the expiration of this License and, in the event of its
termination, ten (10) days after receipt of notice of termination, Avmark
shall furnish to uniView a statement showing the number and description
of Licensed Products on hand or in process. uniView shall have the right
to take a physical inventory upon ten (10) days written notice to
ascertain or verify such inventory and statement, and refusal by Avmark
to submit to such physical inventory by uniView shall forfeit Avmark's
right to dispose of such inventory, uniView retaining all other legal and
equitable rights uniView may have in the circumstances.
14. DISPOSAL OF STOCK UPON TERMINATION OR EXPIRATION. After
termination of the License, or any part thereof, under the provisions set
out above, Avmark may, except as otherwise provided in this Agreement,
dispose of the affected Licensed Products which are on hand or in process
at the time notice of termination is received. Such disposal may occur
for a period of ninety (90) days after notice of termination, provided
advances and royalties with respect to that period are paid and
statements are furnished for that period in accordance with this License.
Notwithstanding anything to the contrary herein, Avmark shall not
manufacture, sell or dispose of any Licensed Products after an expiration
or a termination of this License which is based on the failure of Avmark
to affix notice of trademark registration or any other notice to the
Licensed Products, cartons, containers, or packing or wrapping material
or advertising, promotional or display material, or because of the
departure by Avmark from the quality and style approved by uniView
pursuant to this Agreement.
15. EFFECT OF TERMINATION OR EXPIRATION. Upon and after the
expiration or termination of this License, all rights granted to Avmark
hereunder shall forthwith revert to uniView, who shall be free to license
others to use the ▇▇▇▇ in connection with the manufacture, sale and
distribution of the Licensed Products and Avmark will refrain from
further use of the ▇▇▇▇ or any further reference to it, direct or
indirect, in connection with the manufacture, sale or distribution of
Avmark's products, except as provided in paragraph 14. Termination of
the License shall be without prejudice to any rights which uniView may
otherwise have against Avmark. Upon the termination of this License,
notwithstanding anything to the contrary herein, all royalties on sales
theretofore made shall become immediately due and payable and no minimum
royalties shall be refunded or avoidable.
16. THIRD PARTY LICENSES. Avmark agrees to use its best efforts to
obtain all third party licenses reasonably required for the manufacture
and distribution of the Licensed Products, e.g. Macrovision, in such a
manner as will permit uniView full use of the same third party licenses
for other products.
17. PUBLICITY. The parties agree that the timing and content of any
release of information to the public concerning this Agreement shall be
as mutually agreed.
18 FIRST REFUSAL. In the event uniView desires to sell, assign or
otherwise transfer its interest in the ▇▇▇▇ and has obtained a bona fide
offer for the sale thereof made by some person other than Avmark, it
shall first offer to transfer its interest to Avmark at the price and on
the terms offered to it. Avmark shall notify uniView in writing of its
decision within thirty (30) days after receiving uniView's notice of its
desire to sell. All things being equal, uniView will give Avmark
favorable consideration in any such sale.
19. NOTICES. All notices or other communications hereunder must be
given in writing as follows:
uniView Technologies Corporation Avmark, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
FAX: ▇▇▇-▇▇▇-▇▇▇▇ FAX: ▇▇▇-▇▇▇-▇▇▇▇
Such notices shall be either (i) delivered in person, (ii) transmitted by
facsimile telecommunication, provided that any notice so given is also
mailed as provided for herein, (iii) delivered by Federal Express or
similar commercial delivery service, or (iv) mailed by certified mail,
postage prepaid, return receipt requested. All notices and statements to
be given, and all payments to be made hereunder, shall be given or made
at the respective addresses of the parties as set forth above or to such
other address or facsimile number as the parties shall have designated to
the other by like notice. Each such notice or other communication shall
be effective (i) if given by facsimile telecommunication, when
transmitted, (ii) if given by mail, five (5) business days after such
communication is deposited in the mail and addressed as aforesaid, (iii)
if given by Federal Express or similar commercial delivery service, one
(1) business day after such communication is deposited with such service
and addressed as aforesaid, and (iv) if given by any other means, when
actually delivered at such address.
20. NO JOINT VENTURE. Nothing herein contained shall be construed to
place the parties in the relationship of partners or joint venturers, and
none of the parties shall have any power to obligate or bind the others
in any manner whatsoever.
21. ASSIGNMENT OR SUBLICENSE BY AVMARK. This Agreement and all
rights and duties hereunder are personal to Avmark and shall not, without
the prior written consent of uniView, be assigned, mortgaged, sublicensed
or otherwise encumbered by Avmark or by operation of law, which consent
shall not be unreasonably withheld. Notwithstanding the foregoing,
uniView agrees that Avmark may sublicense the ▇▇▇▇ to Kmart Corporation
according to terms relating to the ▇▇▇▇ which are identical to those
contained in this Agreement and according to other terms which are
substantially in accordance with this Agreement. uniView may assign its
rights hereunder and shall furnish written notice of any such assignment
to the other parties.
22. ENTIRE AGREEMENT; NO WAIVER. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof
and supersedes all other communications, whether written or oral,
including, without limitation, the letter agreement between the parties
dated May 11, 1999 and its annexed form license agreement. None of the
terms of this Agreement can be waived or modified except by an express
agreement in writing signed by both parties. The failure of either party
hereto to enforce, or the delay by either party in enforcing, any of its
rights under this Agreement shall not be deemed a continuing waiver or a
modification thereof and either party may, within the time provided by
applicable law, commence appropriate legal proceeding to enforce any or
all of such rights. No person, firm, group or corporation (whether
included in the ▇▇▇▇ or otherwise) other than the named parties shall be
deemed to have acquired any rights by reason of anything contained in
this Agreement.
23. SEVERABILITY. If any provision hereof is determined by a tribunal
of competent jurisdiction to be illegal or unenforceable, it shall
automatically be deemed conformed to the minimum requirements of law and,
along with all other provisions hereof, shall thereupon be given full
force and effect. Headings are for reference purposes only and have no
substantive effect.
24. FORCE MAJEURE. 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.
25. DISPUTES, CHOICE OF LAW. Except for certain emergency judicial
relief sought in connection with misuse of the ▇▇▇▇ which may be brought
at any time, the parties agree that all disputes between them shall be
submitted for informal resolution to their respective chief operating
officers. Any remaining dispute shall be submitted for arbitration in
accordance with the Commercial Arbitration Rules of the American
Arbitration Association. Such arbitration proceedings shall be held in a
neutral city approximately equidistant from Avmark's and uniView's main
offices, the site to be chosen by the party seeking to initiate the
arbitration. The award of the arbitrators shall include a written
explanation of their decision, shall be limited to remedies otherwise
available in court and shall be binding upon the parties and enforceable
in any court of competent jurisdiction. This agreement shall be governed
by and construed in accordance with the substantive laws of the United
States and Texas.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed as of July 1, 2000.
uniView Technologies Corporation Avmark, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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