SUB-CONTRACTING AGREEMENT BETWEEN Hyundai Syscomm Corp. AND MSGI Security Solutions, Inc. Dated as of: October 25, 2006
EXHIBIT
4.1
BETWEEN
Hyundai
Syscomm Corp.
AND
Dated
as of: October 25, 2006
THIS
AGREEMENT
is dated
as of October 25, 2006.
Parties
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(1)
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Hyundai
Syscomm Corp. a California corporation which has its headquarters
at ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (“Contractor”).
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(2)
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MSGI
Security Solutions, Inc. a Nevada corporation which has its headquarters
at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ (“MSGI”).
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Background
| A. |
Contractor
and its Affiliates, amongst other things, design, manufacture, supply,
market, sell, install and maintain wireless networks and components
and
security systems throughout the world (“Contractor’s
Primary Business”).
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| B. |
MSGI
and its Affiliates, amongst other things, supply, market, sell, install
and maintain wired and wireless encrypted video security and perimeter
security systems (“MSGI’s
Primary Business”).
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C.
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Contractor
and its Affiliates, on the one hand, and MSGI and its Affiliates,
on the
other hand, believe that:
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(i)
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MSGI
and its Affiliates have the knowledge and capability to integrate
their
MSGI’s Primary Business with Contractor’s Primary Business by retrofitting
wireless encrypted video security systems into established wireless
networks and by integrating such systems into pending and future
wireless
infrastructure projects around the world that Contractor and its
Affiliates procure;
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(ii)
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the
integration of MSGI’s Primary Business into Contractor’s present and
future projects in Contractor’s Primary Business will enhance Contractor’s
ability to maximize its profits and make its offerings to present
and
potential clients more attractive; and
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| (iii) |
MSGI’s
relationship with Contractor and its Affiliates will enable MSGI
to
greatly expand its worldwide exposure, revenues and enterprise
value.
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D.
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Contractor
represents that it will have the right to hire MSGI on each project
on
which it requests MSGI’s
involvement.
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E.
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MSGI
represents that it will have the right to work for Contractor on
each
project on which it agrees to participate with
Contractor.
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NOW
THEREFORE,
in
consideration of the promises and the mutual covenants set forth herein, the
Parties agree as follows:
1. DEFINITIONS
Capitalized
terms used in the Agreement, unless defined in the text of the Agreement, shall
have the meanings specified in this Section 1.
| 1.1. |
Affiliate
means any company, which is under common control with, controls,
or is
controlled by, either one of the Parties to the
Agreement.
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| 1.2. |
Agreement
means this document, Annexes and all amendments and changes signed
by the
Parties.
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| 1.2. |
Attachment means
a document agreed between the Parties and attached to this Agreement
forming an integral part hereto.
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| 1.4. |
Common
Shares means
the Nine Hundred Thousand (900,000) shares of Common Stock issuable
to
Contractor pursuant to the Subscription
Agreement.
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| 1.5. |
Common
Stock
means the common stock, par value $.01 per share, of
MSGI.
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| 1.6. |
License
Agreement
means the License Agreement dated September 11, 2006 between MSGI,
as
licensor, and Contractor, as
Licensee.
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| 1.7. |
Registration
means
the registration under the Securities Act of 1933 of the resale of
all
Common Shares.
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| 1.8. |
Registration
Rights Agreement means
the Registration Rights Agreement dated the date hereof between Contractor
and MSGI.
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| 1.9. |
Section
2.2 Update means
a quarterly update provided by Contractor pursuant to Section
2.2.
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| 1.10. |
Subscription
Agreement means
the Subscription Agreement dated the date hereof between MSGI and
Contractor.
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| 1.11. |
Term
means the term of this Agreement as determined pursuant to Section
4.
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2. RESPONSIBILITIES
OF CONTRACTOR
Contractor’s
responsibilities during the Term shall include the following:
| 2.1. |
Contractor
will provide MSGI with sub-contract payments during the Term against
deliverables to be mutually agreed between the Parties as quickly
as
possible after the execution and delivery of this Agreement. All
sub-contract payments to MSGI by Contractor shall be subject to
Contractor’s prior receipt of contract revenues from the contract
counterparty with respect to the work performed or products supplied
by
MSGI. MSGI acknowledges that contract payments to Contractor with
respect
to work required to have been performed or products required to have
been
supplied by MSGI (“MSGI
Deliverables”)
may be reduced or delayed by a Contractor counterparty due to the
quality
or timeliness of the MSGI Deliverables. MSGI agrees to take all
commercially reasonable actions to correct the reason for such reduction
or delay, and Contractor agrees to take all commercially reasonable
actions to encourage Contractor counterparties to accept and pay
for all
corrected MSGI Deliverables.
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| 2.2 |
On
or prior to the last day of each calendar quarter during the Term,
Contractor shall deliver to MSGI a Section 2.2 Update that sets forth
a
minimum in contract revenues based on US GAAP during the subsequent
12-month period. By way of illustration of the foregoing, on or prior
to
December 31, 2006, Contractor shall provide MSGI with a Section 2.2
Update
that sets forth the minimum Dollar amount of sub-contract US GAAP
revenues
to be provided to MSGI during the 12-month period ending December
31,
2007, and on or prior to March 31, 2007, Contractor shall deliver
to MSGI
a Section 2.2 Update that sets forth the minimum Dollar of sub-contract
US
GAAP revenues to be provided to MSGI during the 12-month period ending
March 31, 2008.
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| 2.3. |
Contractor
will provide MSGI with the opportunity to participate with Contractor
in
contracts Contractor and its Affiliates now have or hereafter seek
to
obtain during the Term (“Contracts”),
where MSGI’s participation would enhance the value of the Contract to
Contractor by adding a wired and wireless encrypted video security
component, and perimeter security to the scope of work of such Contract.
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3. RESPONSIBILITIES
OF MSGI
MSGI’s
responsibilities during the Term shall include the following:
| 3.1. |
MSGI
shall continue sub-contracting work for Contractor as long as Contractor
procures the approvals deemed necessary by Contractor for MSGI’s
participation under all relevant contracts.
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| 3.2. |
MSGI
shall provide Contractor and its Affiliates on a timely basis with
all
assistance needed to integrate MSGI’s wired and wireless encrypted video
security components and perimeter security into Contractor’s plan of work
for each contract under which MSGI is a sub-contractor.
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| 3.3. |
MSGI
will design a technical solution to address the video surveillance
and
perimeter security needs of Contractor and its Affiliates. The Parties
will mutually agree in advance upon the acceptance criteria for the
solution. Upon acceptance, MSGI will proceed with the implementation
of
the solution. This will include the assembly of the necessary hardware
and
software components and features, the delivery of same to Contractor
for
deployment at the site of Contractor’s projects, and appropriate
guarantees of performance by MSGI to assure Contractor that MSGI
will
perform its responsibilities according to contract specifications
and on a
timely basis.
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| 3.4 |
MSGI
shall maintain the confidentiality of the counterparty to each Contract
but may make known that Contractor is the counterparty to this Agreement.
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4. TERM
OF AGREEMENT
This
Agreement shall be valid for a period of three (3) years from its date (the
“Period”).
The
Period shall be renewed for additional one-year periods unless the Agreement
is
terminated by either Party pursuant to Section 25. Even if the Period isn’t
renewed, the responsibilities of the Parties, which started during the Period
and which stays to a duration after the end of the Period, shall continue in
accordance with the Agreement.
5. CONSULTATION
| 3.12. |
The
Parties shall have periodic review meetings, where their authorized
representatives shall consult with each other with respect to existing
and
prospective projects on which MSGI is sub-contracting or may be expected
to sub-contract to Contractor.
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| 3.12. |
The
Parties shall exchange information on design changes or improvements
to
their respective products and services, new products, market, demographic
and similar matters as mutually
agreed.
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6.
THE
COMMON SHARES
| 6.1. |
MSGI
represents and warrants that its Board of Directors has ratified
the
execution and delivery of this Agreement, the License Agreement,
the
Subscription Agreement, the Registration Rights Agreement, the
Common
Shares, and the transactions contemplated hereby and
thereby.
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| 6.2. |
Pursuant
to the Subscription Agreement, MSGI has caused its transfer agent
to issue
and deliver a stock certificate evidencing Eight Hundred Sixty
Five
Thousand (865,000) shares of Common Stock registered in the name
of
Contractor’s nominee, Anyuser,
Inc.
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| 6.3. |
MSGI
will cause its transfer agent to deliver a stock certificate
evidencing
Thirty Five Thousand (35,000) shares of Common Stock registered
in the
name of Contractor’s nominee, Anyuser, Inc., as soon as permitted by
Nasdaq Rule 4350(i).
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7. REGISTRATION
The
Registration Rights Agreement provides Contractor with certain contractual
rights with respect to Registration of the resale by Contractor of the Common
Shares.
8. CONFIDENTIAL
INFORMATION AND INVENTION ASSIGNMENT AGREEMENT
MSGI
agrees to execute and deliver to Contractor a Confidential Information and
Invention Assignment Agreement in the form of Annex
A
attached
hereto.
9. PRODUCT
WARRANTY
| 9.1. |
MSGI
warrants to Contractor that, as of the date title to products supplied
by
MSGI passes to Contractor or the contract counterparty, MSGI will
have the
right to sell, transfer, and assign such products and the title conveyed
by MSGI shall be good.
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| 9.2. |
MSGI
guarantees to Contractor that the MSGI products and product components
supplies to Contractor for each project on which MSGI sub-contracts
shall
be provided without any material and craftsmanship defects and that
the
products or product components shall be in compliance with all MSGI
Technical Specifications. In case a defect or lack of conformity
is
detected during the guarantee period in a product or product component
supplied by MSGI during the normal and correct usage, Contractor
shall
inform MSGI about the incident promptly and shall follow the instructions
of MSGI concerning the return of the defective of non-conforming
product
or product component. MSGI shall decide to repair or change the product
or
product component returned to MSGI, without requesting any material
or
craftsmanship expenses. In case technical operational defects due
to
manufacturing defects are detected, the changed product or product
components shall be changed by MSGI with new products or product
components. The guarantee periods for the products and product components
provided by MSGI shall be the twelve (12) months following the assembly
of
the products and product components by Contractor. Expenses caused
by the
defects of the products shall be met by MSGI.
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| 9.3. |
Warranty
replacement product components are warranted to be in good working
order
for the unexpired warranty period. The costs of transportation, risk
of
loss and customs duties related to the shipment of product and/or
product
components for repair or replacement from Contractor to MSGI shall
be for
the account of Contractor. The costs of transportation, risk of loss
and
customs duties related to the shipment of repaired or replacement
products
and/or product parts from MSGI to Contractor are for the account
of
MSGI
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| 9.4. |
The
foregoing warranty does not extend to products or product components
that
have (a) been subjected to misuse, neglect, power failures or surges,
lightning, fire, flood, pest damage or accident, (b) been repaired
or
altered contrary to MSGI’s instructions, (c) been improperly handled,
installed, stored, or maintained, (d) been used contrary to MSGI
instructions.
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10. SOFTWARE
WARRANTY
| 10.1. |
MSGI
guarantees Contractor that, all software supplied by MSGI to Contractor
is
debugged from errors which may affect the performance of the software
set
in accordance with its technical specifications. During the guarantee
period, in case an error, which may affect the performance, defined
in the
technical specifications, is detected in the software mentioned in
Section
10.1, after the instructions of MSGI are followed and the defected
software is returned to MSGI, MSGI shall fix or change the aforementioned
software without any charges. MSGI shall do its best to fix or change
the
software.
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| 10.2. |
The
warranty period for software provided by MSGI will be 12 months from
the
date of installation of the software by
Contractor.
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| 10.3. |
When
it discovers a defect subject to this warranty, Contractor shall
contact
MSGI and based on the nature of the request, Contractor will be advised
as
to the estimated time for trouble clearance or provided with the
information requested. MSGI will be responsible for resolution of
all
troubles reported.
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MSGI
makes no warranty as to the following: defects other than those which result
in
performance not in conformance with MSGI’s specifications and which have a
significant impact on the user of a product; defects related to Contractor’s or
its End Users’ misuse, neglect, accident or abuse; defects related to
Contractor’s or its End Users’ alteration of software.
11. WARRANTY
DISCLAIMER
THE
WARRANTIES FOR PRODUCTS AND SOFTWARE SET FORTH IN SECTIONS 9 AND 10 ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING
BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. CONTRACTOR’S SOLE AND EXCLUSIVE REMEDY SHALL BE MSGI’S OBLIGATION TO
CORRECT OR REPLACE, AS SET FORTH IN SECTIONS 9 AND 10.
12. REPAIRS
NOT COVERED UNDER WARRANTY
| 12.1. |
In
addition to repairs provided for in the warranty sections, MSGI will,
during the Term and for a period of 5 years thereafter, provide repair
services for such reasonable charges as may from time to time be
specified
by MSGI. Products to be repaired under this Section must be returned
by
Contractor to a location designated by MSGI. The repaired product
or
product component will be shipped to Contractor.
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| 12.2. |
It
is understood that, to facilitate the process of product or product
components returned to MSGI for non-warranty repair, new factory
reconditioned, refurbished, remanufactured, or functionally equivalent
replacement product component may be shipped. Replacement and repaired
product or product components shall be warranted for a period of
three (3)
months from the date of
installation.
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| 12.3. |
All
transportation costs, custom duties, risk of loss and damage to product
or
product components returned for repair under this section will be
borne by
Contractor, and all transportation costs, custom duties, and in-transit
risk of loss and damage to such repaired or replacement product or
product
components returned to Contractor will be borne by
MSGI.
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13. TRAINING
MSGI
shall provide training for the assembly, maintenance and usage of the test
equipment, and shall charge its most favored prices to Contractor, in case
another agreement concerning the topic isn’t agreed upon by the Parties. The
Parties shall jointly decide on the location of these aforementioned trainings.
In case another agreement isn’t agreed upon by the Parties, the provided
trainings and all the printed literature shall be English. The initial product
trainings shall be provided by MSGI as part of the initial system offering.
14. PRICES
MSGI
shall provide such bid information as Contractor reasonably requires in order
for Contractor to bid on contracts in which MSGI acts as a sub-contractor.
15.
INVOICING AND PAYMENTS
| 15.1. |
Unless
otherwise agreed, the provisions in this Section shall apply to invoicing
and payments.
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| 15.2. |
Contractor
shall effect all payments due to MSGI net in US Dollars (USD) to
the MSGI
bank account indicated in the applicable invoice. All price information
on
invoices and related documents shall be in US Dollars.
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| 15.3. |
The
whole of the order price (100%) shall be paid by Contractor, without
any
interest, within ten (10) days of Contractor’s receipt of contract
payments which include items supplied by
MSGI.
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| 15.4. |
Letter
of Credit - To be determined and mutually
agreed.
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16. DELIVERY
AND TITLE
| 16.1. |
All
deliveries by MSGI to Contractor shall be made to Contractor FOB
New York
in accordance with the Incoterms
2000.
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| 16.2. |
Title
and risk of loss to the products (except as provided in Section 19
with
regard to Firmware) shall pass to Contractor on delivery, without
thereby
in any way waiving MSGI’s right to any payment not yet received at that
time.
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17. IMPORTATION
EXPENSES AND TAXES
Contractor
shall be responsible for payment for all taxes, customs duties and other
governmental charges, however designated, associated with importation of the
products into the country where the contract is to be performed. Contractor
shall reimburse MSGI for any such taxes, duties and charges that MSGI advances
or pays.
18. NOTICES
All
notices, which shall or should be made in compliance with this hereby Agreement,
shall be made in written form and to the addresses set forth herein, or to
the
addresses notified to the other Party in written form afterwards; and when
these
notices are received then they shall be accepted as made. Notices made with
faxes or e-mails shall only be accepted, in case the sending may be proved:
19. FIRMWARE
No
title
or other ownership rights in Firmware or any copy thereof shall pass to
Contractor under this Agreement. Contractor agrees that it shall not alter
any
notices on, prepare derivative works based on, or reproduce, disassemble or
decompile any Software embodied in Firmware recorded in the
products.
20. USE
OF INFORMATION
| 20.1. |
All
information, which is marked with a restrictive notice or otherwise
tangibly designated as proprietary, or in the case of oral information,
is
disclosed on a confidential basis, and which is furnished by one
Party to
the other Party (“Information”),
shall remain the property of the disclosing Party and shall be returned
to
the disclosing Party upon request.
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| 20.2. |
Unless
the disclosing Party agrees otherwise in writing, such Information:
(i)
shall be treated in confidence by the receiving Party and used only
for
purposes of its performance under this Agreement; (ii) shall not
be
reproduced or copied in whole or in part, except as necessary for
use as
authorized in this Agreement; and (iii) shall, together with any
copies
thereof, be returned or destroyed or may, if in the form of software
or
firmware recorded on an erasable storage medium, be erased when no
longer
needed or when this Agreement terminates, whichever occurs
first.
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| 20.3. |
The
above conditions in Section 20.2 do not apply to any part of the
Information which: (i) is known to receiving Party free of any obligation
to keep it in confidence; (ii) is contained in a document generally
available to the public through acts not attributable to the receiving
Party; (iii) is generally known in the industry, other than as a
result of
improper action by the receiving Party; (iv) is wholly and independently
developed by the receiving Party as evidenced by contemporaneous
documentation; or (v) is proprietary to the disclosing Party but
not
confidential; (vi) must be disclosed pursuant to the Securities Exchange
Act of 1934; or (vii) must be disclosed on a “need to know” to directors,
officers, employees or agents to permit a Party to discharge its
duties
under this Agreement.
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21. INTENTIONALLY
OMITTED
22. TRADEMARKS
AND MARKINGS
MSGI
hereby consents and grants Contractor permission to utilize certain MSGI
designated trademarks, insignia and symbols (“Marks”)
in
Contractor’S advertising and promotion of the contracts on which MSGI is a
sub-contractor.
23. MUTUAL
LIMITATION OF LIABILITY
| 23.1. |
No
action or proceeding against a Party or its Affiliates under this
Agreement may be commenced more than twelve (12) months after the
cause of
action accrues.
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| 23.2. |
This
Article shall apply and remain operative notwithstanding the failure
of an
exclusive remedy.
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24. INDEMNITY
| 24.1. |
General
Litigation:
-
Either Party (for the purpose of this paragraph, an “Indemnifying
Party”)
will defend and indemnify the other Party (an “Indemnified
Party”)
for any settlement or final judgment that arises out of a claim or
suit by
third parties to the extent that such claim or suit is based on an
action
for negligent acts or omissions of the Indemnifying Party. An Indemnifying
Party’s obligation to indemnify will be reduced to the extent that the
settlement or judgment is attributable to the actions of the Indemnified
Party. The Indemnified Party will give the Indemnifying Party prompt
notification of any claim or suit and will co-operate in the defence
or
settlement thereof. The Indemnifying Party will be responsible for
all
attorney’s fees and costs incurred in defending or settling any claim or
suit. In no event will the liability of an Indemnifying Party under
this
Article exceed $250,000 (U.S.) (inclusive of legal
fees).
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| 24.2. |
Patent,
Trademark and Copyright Litigation:
-
MSGI shall, subject to the conditions and exceptions stated in this
paragraph, defend or settle all suits against Contractor or any of
Contractor’s contractual counter parties alleging that any product or
product component including Firmware provided by MSGI (for the purpose
of
this paragraph the term “Product”
shall be read to mean product and product component, including Firmware)
furnished hereunder infringes any U.S. patent, U.S. trademark or
U.S.
copyright, by reason of its use, in accordance with MSGI’s specifications,
and shall pay all damages and costs which by final judgement of a
court of
competent jurisdiction may be assessed against or on account of such
infringement; provided that MSGI (i) shall have had prompt written
notice
from Contractor of the claim of such infringement and full opportunity
and
authority to assume the sole defence of and to settle such claims
or
suits, and (ii) shall have been furnished, upon MSGI’s request, by
Contractor with all information and assistance available to Contractor
for
such defence or settlement. If the use of the product shall be or
is
likely to be enjoined, MSGI at its sole discretion will either (a)
procure
for Contractor a license or other right to continue use and sale
of the
product; or (b) replace the enjoined product with a suitable substitute
free of any infringement; or (c) modify them so they become
non-infringing. Contractor agrees to indemnify and save harmless
MSGI and
its suppliers and Affiliates from all costs, expenses, liabilities
and
claims for (a) infringement of any intellectual property rights arising
from adherence to instructions, specifications or drawings which
MSGI is
directed by Contractor to follow; or (b) infringement of any intellectual
property rights related to Contractor’s use of the product in combination
with any item or items not furnished by
MSGI.
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25. TERMINATION
AGREEMENT
This
Agreement may be terminated by either Party, in its sole discretion, upon sixty
(60) days’ prior written notice if the other Party has materially breached this
Agreement and such breach (provided it is capable of remedy) remains uncured
for
a period of thirty (30) days following receipt of notice of such failure,
default or breach; or if any material written representation made by the other
Party shall not be true and correct as of the relevant publication date.
26. FORCE
MAJEURE
Neither
Party shall be held responsible for any delay or failure in performance of
any
part of the Agreement to the extent such delay or failure is caused by: fire;
flood; explosion; war or the engagement of hostilities; strike; embargo; labor
dispute; government requirement; acts or failure to act of civil or military
authority; acts of God or the public enemy; inability to secure materials or
transportation facilities; acts or omissions of carriers or suppliers; or any
other causes beyond its control, whether or not similar to the foregoing
(hereafter, a “Force
Majeure Condition”).
27. CHOICE
OF LAW AND SETTLEMENT OF DISPUTES
| 27.1. |
This
Agreement shall be administered and interpreted in accordance
with the
Swiss Federal Laws.
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| 27.2. |
All
conflicts arising about or in connection with this hereby Agreement
shall
be settled by 3 arbiters in accordance with the rules and regulations
of
the International Chamber of Commerce. The arbitration shall
be conducted
at Geneva and the arbitration language shall be English.
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28. ASSIGNMENT
This
Agreement shall not be assigned by either Party in whole or in part, without
the
prior written consent of the other Party, (such consent not to be unreasonably
withheld). Any such “assignment” shall include, without limitation, a merger,
sale, or transfer of control, by operation of law or otherwise.
29.
SUBCONTRACTING
Each
Party may subcontract any or all of the work to be performed by them under
the
terms and conditions of the Agreement, but MSGI and Contractor shall retain
the
responsibility for the work subcontracted.
30. EXPORT
CONTROL REGULATIONS
| 30.1. |
MSGI
and its Affiliates shall: (i) procure the necessary exportation licenses
from the United States Chamber of Commerce or from the country of
origin;
and (ii) shall export the products and product components. MSGI and
its
Affiliates are responsible for providing the European Compliance
Certificates (CE) due to the European Exportation rules.
|
| 30.2. |
Contractor
shall be responsible for importing the products and product components
into each country where a contract is to be performed and where MSGI
is a
sub-contractor.
|
| 30.3. |
Contractor
agrees to provide to MSGI, upon its request, all necessary assistance
to
facilitate the procurement of such required export licenses.
|
| 30.4. |
In
case Contractor has signed an agreement with its customer, and has
placed
an order to MSGI, then MSGI is responsible for providing the mentioned
products on time, and in case a delay occurs or MSGI isn’t able to obtain
the necessary exportation licenses, then MSGI shall be held responsible
and Contractor shall have the right to demand a
compensation.
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| 30.5. |
Contractor
acknowledges that the commodities transmitted or sold under the Agreement
may in fact be subject to export and re-export restrictions under
the
United States Department of Commerce Export Control Regulations (the
“Regulations”)
and may require the specific written permission of the United States
Department of Commerce to export or re-export the commodities outside
the
country of destination of such commodities listed in MSGI’s ▇▇▇▇ of lading
(the “Destination
Country”).
Contractor further acknowledges that any product manufactured by
Contractor or its agents incorporating any item(s) furnished hereunder
may
also require the specific written permission of the United States
Department of Commerce for export for the Destination Country, as
described in Part 776.12 of the
Regulations.
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| 30.6. |
Contractor
hereby assures MSGI that it does not intend to and will not knowingly,
without the prior written consent, if required, of the Office of
Export
Administration of the ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, transmit directly or indirectly, sell, transfer, or,
convey
(i) any of the technical information (including technology and information
included in the product components) or software furnished by MSGI;
or (ii)
any immediate product (including materials, processed and services)
produced directly by the use of any such technical information to
(1)
Afghanistan, the People’s Republic of China, Iraq or any Group Q, S, W, Y
or Z country as specified in Supplement No. 1 to Part 770 of the
Regulations; or (2) any citizen or resident of the aforementioned
countries; or (3) any individual, person or entity appearing on the
Table
of Denial orders as published in Supplements Nos. 1 and 2 to Part
788 of
the Regulations. Current copies of such lists and tables will be
provided
by MSGI to Contractor upon request.
|
| 30.7. |
Contractor
agrees to inform MSGI promptly in writing of any such written consent
issued by the United States Office of Export
Administration.
|
| 30.8. |
Contractor
agrees that it will not, without the prior written consent of MSGI
and the
prior written authorization of the United States Department of Commerce,
export directly or indirectly, any information or product components
including any associated Firmware covered by the Agreement to any
country
outside of the country in which the contract on which MSGI supplied
such
information or product components is to be
performed.
|
| 30.9. |
Contractor
acknowledges that its obligations under this Article shall survive
the
termination of the Agreement.
|
31. U.S.
FOREIGN CORRUPT PRACTICES ACT
Contractor
acknowledges that it is familiar with and fully understands the provisions
of
the U.S. Foreign Corrupt Practices Act of 1977 and its subsequent amendment
of
1988 (“the
Act”),
and
that with respect to the Act neither Contractor nor any officer, director,
employee or agent of Contractor shall do or be instructed to do any of the
following: (a) pay or give anything of value, either directly or indirectly,
to
an official of any government or any political party for the purpose of
influencing an act or decision in his official capacity, or inducing him to
use
his influence with the government in order to assist Contractor in obtaining
or
retaining business for or with, or directing business to, any person, or for
any
other purpose whatsoever; or (b) take any act or use any compensation received
for any purpose which would constitute a violation of any law of the U.S. or
any
political subdivision within the Territory, including the Act.
32. WAIVER
No
failure to exercise and no delay or partial exercise of a right or power
conferred upon a Party under the terms of the Agreement shall operate as a
waiver of such right or power.
33. SURVIVAL
OF OBLIGATIONS
The
liabilities of the Parties concerning this Agreement shall continue even after
the termination of the contract due to their commercial nature. As an example
refer to Paragraph 5.
34. SEVERABILITY
If
any
section, paragraph or Article in the Agreement shall be held to be invalid
or
unenforceable, then the meaning of such section, paragraph or Article (the
“Element”)
shall
be construed so as to render it enforceable, to the extent feasible; and if
no
feasible interpretation would save such section, paragraph or Article, it shall
be severed from the Agreement and the remainder of the Agreement shall remain
in
full force and effect. However, in the event any Element is considered an
essential commercial or legal element of the Agreement by either MSGI or
Contractor, the Parties shall promptly negotiate and implement a replacement
therefor.
35. GOVERNING
LANGUAGE
This
Agreement has been made and executed in the English language. In case of
conflict between the Agreement and any translation thereof from English, this
English counterpart of this Agreement shall control.
36. ENTIRE
AGREEMENT
The
terms
and conditions contained in the Agreement supersede all prior oral or written
understandings between the Parties with respect to the subject matter hereof,
shall constitute the entire agreement between them concerning the subject matter
of the Agreement and shall not be contradicted, explained or supplemented by
any
course of dealing or course of performance between MSGI or any of its Affiliates
and Contractor. There are no understandings or representations, expressed or
implied, not expressly set forth in this Agreement. This Agreement shall not
be
modified or amended except by a written document signed by the Parties hereto;
provided,
however, that
Contractor shall be able to unilaterally supplement Section 2.1 by the delivery
of Section 2.1 Updates pursuant to Section 2.2.
IN
WITNESS WHEREOF the
Parties have caused the Agreement to be signed by their duly authorized
representatives effective as of the date written above.
| HYUNDAI SYSCOMM CORP | ||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ |
||
| Title: Chairman of the Board | ||
| MSGI SECURITY SOLUTIONS, INC | ||
| |
|
|
| By: | ||
|
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ |
||
|
Title:
Chairman of the Board
|
||