EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT
THIS
EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT (the “Agreement”) is entered into
on May 14, 2008 (the “Effective Date”), by and between ProLink Solutions,
LLC, a Delaware limited liability company (“Supplier”), and Golf Consulting
Services (Houservices 24, S.L.) a company formed and existing under the laws
of
Spain (“Distributor”).
RECITALS
A. Supplier
develops, manufactures, markets and sells certain golf course management
hardware and software products designed to provide the golf course with course
management systems for use on individual golf courses, which products are sold
under the ProStar, GameStar and ProLink name and are made up of selected
hardware and software (the “Product”).
B. The
parties desire to enter into this Agreement to establish a distribution
arrangement through Distributor in Spain/Portugal (the “Territory”) on the terms
and conditions set forth in this Agreement
C. Supplier
licenses certain patents used in connection with the Product as more fully
set
forth on Exhibit
A
to this
Agreement (the “Patents”).
D. Supplier
wishes to sublicense the Patents to Distributor for use in connection with
the
marketing, sales and distribution of the Product pursuant to this Agreement
(the
“Licensed Services”), and Supplier desires to grant Distributor a non-exclusive
sublicense to use the Patents on the terms and conditions set forth
herein.
NOW,
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
ARTICLE
1
DEFINITIONS
As
used
in this Agreement, the following words and phrases shall have the following
meanings:
1.1 “Course
Equivalent” means a Course or the equivalent of a Course, each of which must
have at least 30 golf carts. “Course(s)” means golf course(s) in the
Territory.
1.2 “Distributor”
has the meaning given to it in the introductory paragraph of this
Agreement.
1.3 “▇▇▇▇▇▇▇
Deposit” has the meaning given that term in Section 5.2.
Distribution
Agreement – June 2008
1.4 “Initial
Term” means 3-year period beginning on the ”Effective Date” and ending on the
third anniversary thereof, unless sooner terminated as provided in this
Agreement
1.5 “Intellectual
Property” means all data collection associated with the Product, the Patents,
the Trademark and Supplier’s software, designs, and business solutions used with
the Product.
1.6 “Loaded
Manufacturing Cost,” means all costs of Supplier, including manufacturing
overhead costs.
1.7 “Net
Content Revenue” means revenue received from a third party for content or
advertising placed on the Products including VDU and clubhouse screens less
any
expenses of internal and external resources and selling commissions of Supplier.
Selling commissions shall not exceed [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
unless a
national or international agency is involved and then the selling commission
shall not exceed [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
1.8 “RF
Cards” means the radio card used in the Product.
1.9 “Term”
means the Initial Term plus any Renewal Terms.
1.10 “Trademark”
means ProLink, ProLink Solutions, ProStar, GameStar or derivations
thereof.
1.11 “Unit(s)”
means the entire Product that is placed on one golf cart.
1.12 “VDU”
means the visual display computer unit of the Product, which is installed in
the
roof of the golf cart.
ARTICLE
2
MASTER
DISTRIBUTOR APPOINTMENT
2.1 Grant
of Exclusive Right.
Subject
to the further provisions of this Agreement, Supplier grants Distributor the
exclusive right to market, sell, distribute and service the Product in the
Territory during the Term. Distributor may not engage sub-distributors to
market, distribute, sell or distribute the Product without the prior written
consent of Supplier, which consent may be withheld in Supplier’s sole
discretion. Further, Distributor shall not permit Courses to service the
Product.
2.2 Minimum
Distribution Requirements.
The
parties agree that Distributor shall retain the exclusive right and license
to
market, sell and distribute the Product in the Territory during the Term
provided that the minimum threshold requirements set forth in this Section
2.2
are met. If such minimum threshold requirements are not met, Supplier may,
in
its sole discretion, retain other distributors to market, sell and distribute
the Product in the Territory and/or terminate this Agreement.
Distribution
Agreement – June 2008
2
(a) During
the period from May 14, 2008 through December 31, 2009, Distributor shall
install the Product on at least the greater of 6 Course Equivalents or 300
Units
in the Territory;
(b) During
the period from January 1, 2010 through December 31, 2010, Distributor shall
install the Product on at least the greater of 8 Course Equivalents or
240
Units in
the Territory;
(c) During
the period from January 1, 2011 through December 31, 2011, Distributor shall
install the Product on at least the greater of 10 Course Equivalents or 400
Units in the Territory;
(d) During
any Renewal Term, Supplier and Distributor shall agree in writing as to minimum
requirement for the Renewal Term; provided, however, that if the parties cannot
agree to the minimum thresholds within 90 days of the expiration of the
applicable Term, either party has the right to terminate this Agreement;
and
(e) If
the
parties extend this Agreement beyond the Term in accordance with Article 9,
then
the parties shall determine the minimum thresholds that are required each year
in the additional Term(s); provided, however, that if the parties cannot agree
to the minimum thresholds within 90 days of the expiration of the applicable
Term, either party has the right to terminate this Agreement.
2.3 Agreement
to Provide Product Exclusively.
In
exchange for the rights granted to it pursuant to this Agreement, Distributor
agrees that it shall not market, sell or distribute any product without the
prior written consent of Supplier (which consent may be withheld in Supplier’s
sole discretion) that is competitive with any product sold by Supplier during
the Term, including but not limited to any portable or cart-mounted global
positioning systems used in connection with golf. To the extent that Distributor
wishes to sell any GPS golf related product, Supplier must receive the written
consent of Supplier, which consent may be withdrawn at any time that Supplier
begins to carry a competitive product.
2.4 Title
to Product.
The
title and ownership of the Product (excluding any Intellectual Property) shall
pass to Distributor upon payment in full. Distributor shall cooperate with
supplier in order to allow supplier to effectuate its liens. Distributor shall
advise all lessors and purchaser of the equipment that ProLink maintains a
prior
lien and will be released upon payment in full. In addition Supplier shall
maintain a [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
interest
in the residual value of the equipment sold through a lease to an end golf
course or lessor. Supplier shall have no obligation to pay for this residual
interest
2.5 Reporting
Requirements; Audit Rights.
During
the Term, Distributor agrees to provide to Supplier monthly reports detailing
Distributor’s marketing, sales and distribution efforts and results in the
Territory. Such reports shall include the number of Units installed to date
the
repair parts in inventory, forecasts of prospective Courses, number of golf
carts upon which the Units are installed, including the manufacturer and make
of
such carts, and current warranty issues on the Product. Supplier shall have
the
right, upon reasonable notice to Distributor and during normal business hours,
to (a) audit the books and records of Distributor related to its obligations
under this Agreement to verify the information contained in the reports, and
(b)
perform physical inspections of Distributor’s physical locations to verify the
information contained in the reports.
Distribution
Agreement – June 2008
3
2.6 Rights
to the Use of the ProLink Branding.
The
Supplier recognizes the need for the Distributor to market the Products of
the
Supplier and, as such, grants the Distributor limited rights to use the brands
and collateral of the Supplier subject to the terms of Sections 4.4, 4.5 and
4.6
of the Agreement. Supplier agrees that in the event there is a Brand or name
change in the suppliers company we will provide the distributor with marketing
capital to assist the distributor to in reproduction of marketing material.
In
the event of such a change the marketing allowance shall be equal to 1% of
the
last 12 months purchases by distributor from supplier
ARTICLE
3
INVENTORY,
REPLACEMENT PARTS AND SERVICE
3.1 Inventory
Requirement.
Distributor shall at all times during the Term maintain an inventory of
72
Units.
3.2 Replacement
Parts.
Distributor shall have the right to purchase replacement RF Cards at cost to
Supplier plus [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
Distributor shall purchase all other replacement parts at the manufacturer’s
price plus [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
Distributor agrees that it shall use only parts from Supplier in servicing
and
installing of the Product or parts approved and properly licensed by supplier.
During the first six months of the agreement replacement parts for any existing
installation as of the date of this agreement replacement parts will be sold
to
the distributor at cost plus [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2].
3.3 Service
Requirements.
In
connection with the rights granted to it pursuant to this Agreement, Distributor
shall provide maintenance services and all other necessary services to the
Product installed on the Courses in the Territory. Distributor shall respond
timely (within 24 hours of a service call from a Course) to a request to service
the Product. If Distributor is unable to service the Product, it shall
immediately contact Supplier’s customer service representatives to seek
assistance on the correct procedure to repair the Product. Additionally,
Distributor agrees that in connection with servicing the Product, it will follow
Supplier’s then current service, installation and troubleshooting procedures.
Supplier shall have direct connection via a high speed dedicated connection
through the internet to all golf courses to maintain and validate the health
and
status of all equipment. In connection with providing the service required
by
this Agreement, Distributor agrees that it shall not modify the Product in
any
way without the prior written consent of Supplier. If Supplier is required
to
repair any Product (other than as set forth below in Section 3.4) installed
by
Distributor or install Product on behalf of Distributor, Distributor shall
reimburse Supplier for all costs affiliated with such repairs, including travel
expenses, labor, time and parts. Not withstanding the above Supplier agrees
that
it will provide to distributor operating manuals, repair memos, and continues
training for updates and improvements. In addition Supplier will provide
technical field support to the distributor on location upon reasonable request
,subject to availability at suppliers sole discretion and the distributor
reimbursement of expenses and costs, Supplier agrees to twice a year ( every
6
months) technical field visits for support and observation.
Distribution
Agreement – June 2008
4
3.4 Limited
Warranty.
Supplier will provide a limited warranty on the VDU’s for one year after
shipment (the “Warranty Term”), and if Distributor experiences any
manufacturing-related service issues with the VDU’s during such period of time,
it may return the VDU to Supplier’s United States factory and Supplier will
repair or replace such VDU. Each party shall pay its own shipping costs
associated with the shipment of VDU’s. Notwithstanding the foregoing, the
limited warranty set forth in this Section 3.4 shall be immediately void if
Distributor opens units or uses any replacement parts other than those provided
by Supplier on the Product or if the Distributor fails to follow Supplier’s then
current service, installation and troubleshooting procedures. Any Product found
to be defective within 4 weeks of delivery will be replaced by Supplier at
no
cost (including shipping). Supplier represents and warrants that its VDU’s are
manufactured in a way that will not cause catastrophic failures due to changes
in daily weather environments.
ARTICLE
4
LICENSE
4.1 License.
Supplier hereby grants to Distributor a non-exclusive license to the
Intellectual Property during the Term for use in connection with the marketing,
sales, distribution and repair of the Product in connection with this Agreement.
All enhancements to the Intellectual Property developed or acquired by Supplier
shall be deemed part of the Intellectual Property and subject to the terms
and
conditions in this Agreement. Distributor agrees that it will sell the Product
under the “ProLink” brand.
4.2 Confidentiality.
Distributor acknowledges that the Intellectual Property includes or embodies
certain confidential information of Supplier relating to Supplier’s business,
plans, customers, services, technology, trade secrets, products or other
information held in confidence by Supplier (“Confidential Information”).
Confidential Information will include all information in tangible or intangible
form that is marked or designated as confidential or that, under the
circumstances of its disclosure, should be considered confidential. Distributor
agrees that it will not use in any way except as expressly permitted by, or
required to achieve the purposes of, this Agreement, nor disclose to any third
party (except as required by law) the Confidential Information and will take
reasonable precautions to protect the confidentiality of such information,
which
precautions, in any event, will be at least as stringent as it takes to protect
its own Confidential Information. This provision shall survive the agreement
by
2 years.
4.3 Use
of
Intellectual Property.
Distributor will use the Trademarks in the form and the manner designated in
writing by Supplier as Supplier may establish from time to time. Distributor
shall attribute ownership of the Trademarks to Supplier, in a form approved
by
Supplier, in connection with Distributor's use of the Trademarks on any web
site
or in any printed materials distributed publicly. The quality of services
provided by Distributor for which the Trademarks are associated must equal
or
exceed the quality of services currently provided by Supplier and meet other
standards set by Supplier from time to time. Upon reasonable request, Supplier
may inspect Distributor's business operations for which the Trademarks are
used
for conformance to Supplier's standard of quality. If Distributor fails to
meet
Supplier's requirements for use of the Trademarks or uses one or more of the
Trademarks improperly, Supplier will provide written notice to Distributor
and
may terminate the license with respect to such ▇▇▇▇ unless Distributor cures
the
deficiency within 30 days of receipt of such notice. Any goodwill arising as
a
result of the use by Distributor of the Trademarks shall inure to the benefit
of
Supplier.
Distribution
Agreement – June 2008
5
4.4 Protection
of Intellectual Property.
Distributor agrees that it will not register the Intellectual Property in the
Territory or take any actions that would adversely affect Supplier’s rights in
the Intellectual Property.
4.5 Ownership
of Intellectual Property.
The
Intellectual Property shall remain the exclusive property of Supplier.
Distributor shall have not rights in or to the Intellectual Property except
as
specifically granted in this Agreement.
4.6 Ownership
of Content and Advertising.
All
content existing or added to the Products is the exclusive property of the
Supplier. The Distributor or golf course customer of the Distributor has no
ownership interest in the advertising rights on the Products or any content
displayed on the Products. Specifically, all revenue derived from advertising
space sold to an advertiser is the express property of the Supplier. All
agreements between Distributor and golf course customer shall reflect this
ownership by the Supplier. Any revenue generated by the sale of content or
advertising shall be shared with the Distributor with 50% of the Net Content
Revenue being paid to Distributor and 50% being retained by Supplier. This
sharing arrangement will be in effect only during the term of this
Agreement.
PRICES
AND PAYMENT
4.7 Price.
The
price for the Product initially shall be as indicated on Exhibit
B.
Prices
quoted exclude taxes, shipping and insurance charges. Supplier may change the
Product prices set forth on Exhibit
B
from
time on at least 30 days advance notice to Distributor.
4.8 Payment
Terms.
Each
time Distributor places an order, it shall submit to Supplier a deposit by
Federal wire transfer of immediately available funds equal to 30% of the total
price for such order (“▇▇▇▇▇▇▇ Deposit”). The balance in full will be due and
payable two (2) days prior to shipment of the order by wire transfer in
immediately available funds. Supplier agrees to review terms quarterly with
the
objective of replacing cash deposits with acceptable international letters
of
credit with term and conditions acceptable to Supplier. Supplier agrees that
if
it has not shipped an order within 90 days from receipt of mapping data from
Distributor the terms on that order shall change to net 30 days from the date
of
shipment. The Payment terms contained in this paragraph 5.2 may be modified
on a
case-by-case basis only in the sole discretion of the Supplier. In no event
will
payment terms extend beyond net 45 days from the date of shipment and all
payment terms that may be provided will have, as a condition precedent, the
ability of the Supplier to qualify the applicable purchase order for insurance
under its then current export insurance policy.
Distribution
Agreement – June 2008
6
ARTICLE
5
INSPECTION
BY DISTRIBUTOR
During
the 30 days following Distributor’s receipt of each shipment of Product ordered
pursuant to this Agreement, Distributor shall have the right to inspect the
Product to ascertain whether it conforms in number and type to Distributor’s
product order, or whether there are obvious defects present. If the Product
is
found not to conform, Distributor shall notify Supplier in writing within such
30-day period. Failure to so notify Supplier will be deemed acceptance of the
Product received.
ARTICLE
6
WARRANTIES
AND LIMITATIONS OF LIABILITY
6.1 Intellectual
Property Rights.
Supplier warrants to Distributor that Supplier owns or has rights to the
Product, including any intellectual property rights associated therewith,
adequate to enable Supplier to perform its obligations, to authorize the
distribution of the Product by Distributor.
6.2 Function
of Product.
Supplier warrants to Distributor that the Product will operate in substantial
compliance with the applicable functional description of the Products as
contained in Supplier’s marketing literature for the Product.
6.3 Adequate
Insurance.
Supplier warrants to Distributor that it has adequate general liability
insurance, and agrees to designate Distributor as an additional insured on
such
insurance if Distributor so requests. Distributor warrants to Supplier that
it
has adequate general liability insurance, and agrees to designate Supplier
as an
additional insured on such insurance if Supplier so requests.
ARTICLE
7
INDEMNIFICATION
7.1 Indemnification
by Supplier.
(a)
Supplier indemnifies and agrees to hold Distributor harmless from and against
any and all claims, demands or actions and costs, liabilities, or losses arising
out of (a) any actual or alleged death or injury to any person or damage to
any
tangible property resulting or claimed to result wholly from (i) any actual
or
alleged defect in the Product, or (ii) any statement or misstatement contained
in the documentation and marketing materials provided by Supplier; or (b)
arising out of any breach of this Agreement by Supplier.
(b) If,
as a
result of any claim of intellectual property infringement, damages are awarded
against Distributor for the use of the Products or the methods they are built
to
perform, Supplier agrees to pay such damages. If an injunction is issued that
precludes Distributor from using Products, Supplier will repurchase the
infringing Products or render such Product non-infringing, provide Distributor
with non-infringing Product, or return the payment that Distributor has made
to
Supplier or dealer for that product less a reasonable amount for prior use
Distributor has made of the Product.
Distribution
Agreement – June 2008
7
(c) For
indemnification to be effective, the Distributor must do the following: (1)
give
Supplier prompt written notice and a copy of the claim, (2) give Supplier
written authority to appoint legal counsel, at Distributor’s sole cost and
expense, to answer and defend the claim, and (3) give Supplier prompt and
reasonable assistance, at Distributor’s sole cost and expense, when requested
for defense of the claim. Distributor may participate in the defense of the
claim through counsel of its choosing at its sole cost and expense, however
Supplier’s counsel would be lead counsel and Distributor agrees that it would
enter into a co-counsel agreement to that effect.
7.2 Indemnification
by Distributor.
Distributor indemnifies and agrees to hold Supplier harmless from and against
any and all claims, demands, or actions and any cost, liabilities, or losses
arising out of (a) any statements or representations made by Distributor or
Distributor’s employees or agents with respect to the Product, except for
statements that are direct quotations of any documentation and marketing
materials provided by Supplier to Distributor for use in connection with the
Product; or (b) any breach of this Agreement by Distributor, including but
not
limited to Distributor’s failure to make any payments (including the license
fee) to Supplier.
7.3 General
Terms of Indemnification.
The
foregoing indemnities are in addition to any rights otherwise under this
Agreement, but shall be expressly contingent on the party seeking indemnity
(a)
notifying the indemnifying party in writing of any such claim, demand, action,
or liability; (b) cooperating in the defense or settlement thereof; and (c)
allowing the indemnifying party to control the defense or settlement of the
same.
ARTICLE
8
TERM
AND TERMINATION
8.1 Term.
This
Agreement shall extend for the Initial Term. Upon the expiration of the Initial
Term, this Agreement shall automatically be extended for an additional three
(3)
years (the “Renewal Term”) provided that the minimum distribution requirements
set forth in Section 2.2 are met.
8.2 Default.
Subject
to Section 13.6, the occurrence of any one of the following items shall
constitute a material default under this Agreement: (a) a failure to provide
the
Product by Supplier to Distributor pursuant to this Agreement; (b) Supplier
selling or distributing the Product in violation of this Agreement; (c) a
failure of Distributor to pay for purchased Product as agreed to in this
Agreement or terms stated on billing invoice; or (d) a failure of Distributor
to
purchase the minimum amounts of Products set forth in Section 2.2. In the event
Supplier commits a material default of this Agreement pursuant to clause (a)
or
(b) above, Distributor shall provide Supplier with not less than a 90-day
written notice to cure. In the event Distributor commits a material default
of
this Agreement pursuant to clause (c) or (d) above, Supplier shall provide
Distributor with not less than a 10-day written notice to cure. In the event
that the default is not cured within the aforementioned periods, the
non-defaulting party may declare the other party in breach. In the event of
a
declaration of breach, the non-breaching party may either (1) seek injunctive
relief to enforce the terms of this Agreement; or (2) may declare this Agreement
terminated and ▇▇▇ for damages; or (3) exercise any other rights or remedies
available at law or in equity; or (4) with respect to a breach described in
Article 4, in addition to the other rights and remedies described in this
Section 9.2, Supplier may declare that this entire Agreement is thereafter
non-exclusive.
Distribution
Agreement – June 2008
8
8.3 Termination
for Convenience.
Distributor agrees that Supplier may terminate this Agreement at any time.
Upon
the event of a termination in accordance with this Section 9.3, Supplier shall
pay Distributor the fair market value for purchasing the rights granted
hereunder for the duration of the Term. If the parties cannot agree on such
fair
market value, they shall each hire an appraiser to calculate the fair market
value. If the two appraisers cannot agree on the value, such appraisers shall
retain a third appraiser to calculate the fair market value, which determination
shall be binding on the parties. The parties shall share equally in the cost
of
such appraisals
ARTICLE
9
COMPLIANCE
WITH LAWS
9.1 Compliance
by Distributor.
Distributor agrees to comply with all applicable federal, state, regional and
local laws and regulations in performing its obligations under the terms and
conditions of this Agreement and its dealings with Courses concerning the
Product, including but not limited to compliance with all laws and regulations
governing radio frequency and the U.S Foreign Corrupt Practices
Act.
9.2 Compliance
by Supplier.
Supplier agrees to comply with all applicable federal, state, regional and
local
laws and regulations in performing its obligations under the terms and
conditions of this Agreement.
ARTICLE
10
OBLIGATIONS
OF DISTRIBUTOR
10.1 Maximizing
Sales.
Distributor shall use its best efforts to maximize the marketing, sales and
distribution of the Product. Distributor shall also use its best efforts to
conduct business in a manner that reflects favorably on the goodwill and
reputation of Supplier.
10.2 Training.
Distributor shall train, develop and maintain customer service and sales support
for the Product pursuant to the terms of Distributor’s approved business
plan.
10.3 Licenses.
Distributor shall have in effect all licenses, permits and authorizations
required and necessary for the performance of its obligations covered by this
Agreement.
10.4 Taxes;
Fees.
Distributor shall pay all sales taxes, license fees and all other fees in the
Territory associated with its performance of its obligations under this
Agreement. Distributor shall pay all fees associated with shipping the Product
either to Distributor or Courses.
Distribution
Agreement – June 2008
9
10.5 Practices.
Distributor shall avoid deceptive, misleading or unethical practices detrimental
to Supplier, the Product or the public, including but not limited to making
representations, warranties or guarantees to Courses or to the golf industry
with respect to the specifications, features or capabilities of the Product
that
are materially inconsistent with the literature distributed by Supplier.
Distributor shall make no warranty, guaranty or representation, whether written
or oral, on Supplier’s behalf.
ARTICLE
11
OBLIGATIONS
OF SUPPLIER
11.1 Compliance
with Shipping Requests.
Supplier shall use its best efforts to obtain the best available shipping dates
and to ship the Product in accordance with Distributor’s reasonable shipping
requests (at Distributor’s cost).
11.2 Collateral
Sales Material.
Supplier shall provide, at its cost, standard collateral sales material in
the
form of brochures and in-service materials in an adequate amount as is
reasonable for Distributor to meet its obligations under this
Agreement.
11.3 References.
Supplier shall refer all leads, inquiries or request for the Product in the
Territory to Distributor and not retain any other party to market, sell or
distribute the Product within the Territory except as permitted under this
Agreement.
11.4 Licenses.
Supplier shall have in effect all licenses, permits and authorizations from
all
government agencies within the Territory necessary to the performance of its
obligations
11.5 Manufacturing
Capabilities.
Supplier warrants that it has the manufacturing and shipping capability to
satisfy the minimum distribution requirements under this Agreement. Further,
Supplier will use all commercially reasonable means to fulfill any demands
in
excess of the minimum distribution requirements.
ARTICLE
12
MISCELLANEOUS
12.1 Independent
Contractor.
Each of
the parties is an independent contractor under this Agreement, and nothing
in
this Agreement shall be construed to create a partnership, joint venture, or
agency relationship between the parties. Without the prior written authorization
of the other party, no party shall have any authority to enter into agreements
of any kind on behalf of the other party nor shall a party have any power or
authority to bind or obligate the other party in any manner to any third
party.
12.2 Authority.
Each
party represents and warrants that it has full power and authority to undertake
the obligations set forth in this Agreement and that it has not entered into
any
other agreement nor will it enter into any other agreements that would render
it
incapable of satisfactorily performing its obligations pursuant to this
Agreement.
Distribution
Agreement – June 2008
10
12.3 Severability.
If any
provision of this Agreement shall be declared to be invalid or unenforceable,
in
whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and
effect.
12.4 Notices.
All
notices and other communications required or permitted to be given under this
Agreement shall be in writing and shall be delivered by hand, overnight courier,
facsimile or U.S. mail, addressed as follows:
If
to
Supplier:
ProLink
Solutions, LLC
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
President
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to
Distributor:
Golf
Consulting Services- (Houservices 24, S.L.)
Trav.
▇-▇▇▇, ▇▇.▇▇▇- ▇▇▇▇▇▇▇▇ “▇▇▇▇▇ ▇▇▇▇▇▇”- ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
Attention:
Director General
Telephone:
(▇▇▇) ▇▇▇▇▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇▇▇▇▇▇▇
E-mail:
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Notice
shall be deemed given and effective the day received if sent by hand delivery
or
U.S. mail, Three business days after being sent by overnight courier, subject
to
signature verification, and on the date sent, if sent by facsimile during normal
business hours, and otherwise on the next business day. Any party may change
its
address or other information for notice by notifying the other party of such
change in accordance with this Section 13.4.
12.5 Governing
Law.
All
questions concerning the validity, operation, interpretation, and construction
of this Agreement will be governed by and determined exclusively in accordance
with the laws of the State of Arizona, without application of its principles
of
conflicts of law. By execution and delivery of this Agreement, with respect
to
any dispute, each of the parties knowingly, voluntarily and irrevocably: (a)
waives any immunity or objection, including any objection to personal
jurisdiction, foreign sovereign immunity, the laying of venue or based on the
grounds of forum non conveniens, which it may have from or to the bringing
of
the dispute in such jurisdiction; (b); waives any right to trial by jury; (c)
agrees that any such dispute will be decided by binding arbitration in Phoenix,
Arizona; (d) understands that it is giving up valuable legal rights under this
provision, including the right to trial by jury, and that it voluntarily and
knowingly waives those rights; and (e) agrees that the other party to this
Agreement may file an original counterpart or a copy of this Section 13.5 with
any arbitrator as written evidence of the consents, waivers and agreements
of
the parties set forth in this Section 13.5.
Distribution
Agreement – June 2008
11
12.6 Arbitration.
The
parties each hereby irrevocably consent to arbitration to be held in Phoenix,
Arizona (or such other venue as may be agreed by all parties), in accordance
with the UNCITRAL Model Law on International Commercial Arbitration, for the
resolution of all disputes arising under this Agreement, or for enforcement
hereof. The Parties agree to use the forum of AAA for such disputes under
arbitration. Any such arbitration shall be conducted in English by three
arbitrators, of whom one shall be selected by each party within 20 days after
a
notice of demand for arbitration is delivered by a party to the other and the
third shall be selected by the first two arbitrators within 10 days after the
selection of the first two arbitrators. The arbitrators shall use their best
efforts to conclude such arbitration and issue a decision within 30 days after
the selection of the arbitration panel. The decision of the arbitrators shall
be
final and binding upon the parties, and judgment in accordance with the decision
will be enforced in accordance with the United Nations Convention on Recognition
& Enforcement of Foreign Arbitral Awards.
12.7 No
Waiver.
Neither
party shall by mere lapse of time, without giving notice or taking other action
hereunder, be deemed to have waived any breach by the other party of any of
the
provisions of this Agreement. Further, the waiver by either party of a
particular breach of this Agreement by the other shall not be construed as
or
constitute a continuing waiver of such breach or of other breaches of the same
or other provisions of this Agreement.
12.8 Force
Majeure.
Except
for obligations of Distributor respecting (a) protection of Supplier’s
proprietary rights in the Products and (b) payment of invoices for Products,
neither party shall be in default if any delay or failure to perform any
obligation hereunder is caused solely by events beyond such party’s control,
including an act of God, epidemic, landslide, lightning, earthquake, fire,
explosion, storm, flood or similar occurrence, an act of public enemy,
terrorists, war, blockage, insurrection, riot, general arrest or restraint
of
government and people, strike, lockout, industrial disturbance, power outages,
unavailability of fuel, civil disturbance or disobedience, sabotage or similar
occurrence. It is understood that the settlement of strikes, lockouts or
industrial disturbances shall be entirely within the sole discretion of the
party having the difficulty. Any party claiming the benefit of such excuse
shall
be entitled to do so only to the extent that such party has diligently acted
to
cure the cause and consequence of such event.
12.9 Complete
Agreement; Amendment.
The
parties acknowledge that this Agreement is the complete and exclusive statement
of agreement respecting the subject matter hereto and supersedes all proposals
(oral or written), understandings, representations, conditions, and other
communications between the parties relating hereto, including the Former
Agreement. This Agreement may be amended only by a subsequent writing that
specifically refers to this Agreement and is signed by parties, and no other
act, document, purchase order, usage, or custom shall be deemed to amend this
Agreement.
12.10 Assignment.
This
Agreement may not be assigned by distributor without the prior written consent
of the supplier, which consent may not be unreasonably withheld.
[SIGNATURE
PAGE FOLLOWS]
Distribution
Agreement – June 2008
12
WHEREBY,
the parties have caused this Agreement to be executed by their duly authorized
officers.
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ProLink
SOLUTIONS, LLC
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By:
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/s/
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Name:
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▇. ▇▇▇▇
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Title:
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Chief
Executive Officer
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GOLF
CONSULTING SERVICES
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(Houservices
24, S.L.)
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By:
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/s/
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Name:
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Title:
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General
Manager
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*WE
HAVE REQUESTED CONFIDENTIAL TREATMENT OF CERTAIN PROVISIONS CONTAINED IN THIS
EXHIBIT. THE COPY FILED AS AN EXHIBIT OMITS THE INFORMATION SUBJECT TO THE
CONFIDENTIALITY REQUEST.*
Distribution
Agreement – June 2008
13
EXHIBIT
A
PATENTS
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Patent
No.
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Issue Date
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Short Title
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Summary
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5,689,431
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11/18/97
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Golf
Course Yardage and Information System Digital Mapping
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Method
for creating a digital map of a golf course including tee box, fairway,
green, cup and selected features, using a position determining system
to
collect survey data points by traversing the perimeter of each hole
and
features relative to a pre-selected arbitrary reference point. Provides
a
realistic approximation of the entire course including essential
details
of each hole.
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D394,637
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05/26/98
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Golf
Cart Roof
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Covers
design of golf cart roof incorporating a monitor.
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5,878,369
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03/02/99
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Golf
Course Yardage and Information Broadcast Transmission System
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Broadcast
transmission system for determining location of a multiplicity of
dispersed vehicles/objects in transit, managing each of their respective
dispositions, with a base station and plural remote stations associated
with the objects while in transit.
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5,873,797
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02/23/99
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Remote
Golf Ball Locator
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Covers
a method for indicating distance from a golf ball in play, rather
than
from a cart. The method includes displaying a depiction of the golf
ball
along a line running the length of the hole from tee box to green
and
parallel to a side boundary of hole to approximate the lie of an
actual
golf ball in play and to display approximate distance from the ball
rather
than the cart.
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6,024,655
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02/15/00
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Map-Matching
Golf Navigation System
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Apparatus
and method for calibrating a cart navigation system for a golf course
position and yardage measurement system, using map matching.
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6,236,940
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05/22/01
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Roof
Mounted Color Screen
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Navigation
System cover roof-mounted monitor including features of mounting
on
underside of cart roof for shading/ease of viewing in sunlight; graphical
user interface for window display on monitor; screen canted back
to reduce
reflections; diffuse or black coating on underside of roof to reduce
reflectivity; images displayed in color, with features on map of
hole in
distinctive colors for realistic display.
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6,236,360
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05/22/01
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Golf
Course Yardage and Information System with Zone Detection
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A
player position determining and course management system for a golf
course
having a plurality of roving units for use by players playing the
course.
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6,446,005
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09/03/02
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Magnetic
Wheel Sensor for Vehicle Navigation System
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A
method of determining the precise location of golf carts on a golf
course
in real time as the carts are in use using a dead reckoning navigation
system for determining speed and
direction.
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Distribution
Agreement – June 2008
A-1
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Patent
No.
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Issue
Date
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Short
Title
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Summary
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6,470,242
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10/22/02
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Expanded
claims for patents D394,637 and 6,236,940
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Display
Monitor for Golf Cart Yardage and Information System. This patent
has
additional (broader) claims for the heads up display including means
for
improved viewing of the screen in sunlight.
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6,525,690
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02/25/03
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Expanded
claims for patent 6,236,360
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Golf
Course Yardage and Information System with Zone Detection. This patent
has
additional (broader) claims for zone detection including golf course
features other than the tee box and green.
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5,438,518
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08/01/95
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Player
Positioning and Distance Finding System
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Portable
distance tracking system for use by a player on a playing field.
—
Licensed from ParView in perpetuity on an exclusive basis.
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5,904,726
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05/18/99
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Accelerometer-
based Golf Distance Apparatus
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(Portable
distance tracking device w/accelerometers calculates distance to
flag from
a position on a hole of a golf course) — Licensed from ParView in
perpetuity on an exclusive basis.
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5,364,093
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11/15/94
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Golf
Distance Measuring System and Method
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Differential
GPS as applied to determining the approximate distance from a golf
ball to
a cup. — Licensed from Optimal Golf Solutions, Inc. for the life of the
patent including all related and derivative patents on a non-exclusive
basis. This license is filed as an exhibit to this current
report.
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7,031,947
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(To
be issued)
4/18/06
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Method
for Continuing Play
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Method
for continuing play following trial period of use for a GPS golf
course
management system.
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We
have
entered into a license agreement with Optimal Golf Solutions, Inc. with respect
to United States Patent #5,364,093, Golf
Distance Measuring System
and Method and
with
GPS Industries with respect to certain international patents for the use of
differential GPS on golf carts. Both of these licenses allow us to utilize
the
patented technology for the life of the patent including all related and
derivative patents on a non-exclusive basis.
We
also
own trademarks on “ParView” and “ProLink” and are in the process for applying
for trademarks for “ProLink Solutions,” “ProStar” “ProStar CPO” and
“GameStar.”
Distribution
Agreement – June 2008
A-2
EXHIBIT
B
PRICING
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ProLink
Solutions, LLC
International
Pricing
January
1, 2007
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
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VDU
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
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Screen
Mounting Brackets
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B]
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Total
per cart with roof/basket
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B]
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Base
Station (per course)
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B]
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ProLink
Software & graphics (per course/72 cars)
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B]
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Installation
fee
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[INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
(plus
travel expenses)
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| TERMS: |
For
all orders, 30% of the order price as a deposit before the order
will go
into production; balance due paid-in-full two days before shipment
or
secured by an irrevocable letter of
credit.
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Special
Pricing - For initial term June 1, 2008 to December 31,
2008
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Parts
and supplies for repair - supplier cost plus [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
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Labor
- expenses only (hard cost)
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Installation
- [INFORMATION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION UNDER RULE
24B-2]
per course plus travel related expenses
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Special
Pricing on deal-by-deal basis for new courses based on each
situation.
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Distribution
Agreement – June 2008
B-1