DISTRIBUTION AND LICENSE
AGREEMENT
This Distribution and License
Agreement (this “ Agreement ”) is made effective
May 28, 2009 (the “ Effective Date ”) by
and between Volu-Sol Reagents Corporation, a Utah corporation
(“ Licensor ”), and euromicron AG, a German
corporation (“ Licensee ”). Licensor
and Licensee may be referred to herein as a “party” or
together as the “parties.”
WHEREAS , Licensor holds all necessary rights in certain
patents (as defined below, the “ Patents ”) and
other intellectual property and has the right to grant the licenses
contemplated by this Agreement;
WHEREAS , Licensor, under the Patents, has developed and
holds all rights necessary to manufacture, market and distribute a
GPS-based tracking device, now in prototype form, that will be
marketed to a consumer-oriented market, including seniors and other
vulnerable individuals (as defined below, the “ Volu-Sol
Product ”);
WHEREAS , concurrently with this Agreement, Licensee has
entered into a separate Distribution and License Agreement with
RemoteMDx, Inc. (“ RemoteMDx ”) dated as of
May 28, 2009 (the “ RemoteMDx Agreement
”) to distribute a certain GPS-based tracking device for use
by law enforcement agencies for tracking offenders;
WHEREAS , in connection with the transactions
contemplated by this Agreement and the RemoteMDx Agreement,
Licensor has received material consideration from
RemoteMDx;
WHEREAS , Licensor desires to grant to Licensee, and
Licensee desires to accept, an exclusive license to manufacture,
market and distribute the Volu-Sol Product in the Territory (as
defined below), subject to the terms and conditions of this
Agreement.
NOW, THEREFORE
, in consideration of the premises
and the mutual covenants and promises set forth in this Agreement,
the legal sufficiency of which is hereby acknowledged, the parties
hereby agree as follows:
1.
Definitions
. The following terms when used in
this Agreement shall have the meanings set forth below.
1.1. “
Business Day ” means any day, other than Saturday or
Sunday, on which commercial banks in the United States of America
are open for business.
1.2. “
Distributors ” has the meaning set forth in Section
2.6.
1.3. “
Implementation Plan ” has the meaning set forth in
Section 3.2(c).
1.4. “
Intellectual Property Rights ” means any and all now
known or hereafter known (a) rights associated with works of
authorship throughout the world, including but not limited to
copyrights and moral rights, (b) trademarks, service marks, trade
name and logo rights and similar rights, (c) trade secret rights
and know-how, (d) patent rights, designs, algorithms and other
intellectual property rights, (e) domain names and Internet
keywords and (f) all other intellectual and industrial property
rights (of every kind and nature throughout the world and however
designated), whether arising by operation of law, contract,
license, or otherwise, and (g) all registrations, initial
applications, renewals, extensions, continuations, divisions or
reissues thereof now or hereafter in force (including any rights in
any of the foregoing).
1.5. “
Know How ” means the accumulation of skills,
processes, information, experience and documents related to the
Licensed Intellectual Property and needed to enable Licensee,
itself or through third-party sublicensees, to practice the
Licensed Intellectual Property to manufacture, service and sell the
Volu-Sol Product, including, but not limited to, any and all
materials, technical information, blueprints, process documents,
drawings, CAD-CAM and other electronic files, supplier lists,
specifications, trade secrets, Know How, techniques, discoveries,
processes, procedures, methods, protocols, designs, diagrams, test
results, studies, raw material sources, data, formulation,
production technology and other such materials.
1.6. “
Licensed Intellectual Property ” means all
Intellectual Property Rights in and to the Volu-Sol Product,
including without limitation the Patents, the Licensed Trademarks,
the Product Documentation and any Product Marketing
Materials.
1.7. “
Licensed Trademarks ” means the trademarks of Licensor
set forth on Exhibit B , as amended from time to time
by mutual agreement of Licensor and Licensee.
1.8. “
Licensee Monitoring Center ” has the meaning set forth
in Section 3.2(b).
1.9. “
Local Communications and Customer Service Center ” has
the meaning set forth in Section 3.2(a).
1.10.
“ Modifications ” has the meaning set
forth in Section 7.5.
1.11.
“ New Trademarks ” means any trademark or
trade name, whether registered or not, created by or licensed to
Licensee for use in connection with the Volu-Sol Product, but New
Trademarks excludes Licensed Trademarks.
1.12. “
Patents ” means all patents used in the design or
manufacture of the Volu-Sol Product and listed on
Exhibit A .
1.13. “
Product Documentation ” means all designs,
specifications, manuals, instructions, drawings and other such work
created by Licensor describing the manufacture and performance of
the Volu-Sol Product (including such materials relating to Software
incorporated into the Volu-Sol Product).
1.14. “
Product Marketing Materials ” has the meaning set
forth in Section 2.3.
1.15. “
Purchase Order ” has the meaning set forth in Section
4.3.
1.16. “
Software ” means the entire software application
developed by Licensor to provide functionality to the Volu-Sol
Product and to monitor and manage the Volu-Sol Product in the form
used by Licensor as of the Effective Date (including all software
and firmware incorporated into the Volu-Sol Product and all
software and source code licensed to Licensor from RemoteMDx,
Inc.), expressed in a fully compiled or assembled series of
instructions in machine language, which will guide the operation of
a processor; modifications and improvements made thereto by
Licensor and commercially released from time to time; and all
documentation, manuals, instructions and other similar work
prepared by Licensor that is reasonably necessary to permit
Licensee to operate the Software in the manner intended, but
Software does not include Third Party Software.
1.17. “
Start-up Services ” means the services provided by
Licensor as agreed upon by the parties and attached hereto as
Exhibit D for the purpose of establishing one or more
Licensee Monitoring Center(s) as further described in Section
3.2.
1.18. “
Sublicensees ” has the meaning set forth in Section
2.6.
1.19. “
Supplied Product ” has the meaning set forth in
Section 4.7.
1.20. “
Term ” has the meaning set forth in Section
9.1.
1.21. “
Territory ” means the countries listed on
Exhibit C .
1.22. “
Third Party Software ” means all software licensed by
Licensor from third parties, other than open source software, that
is integrated into the Software or the Volu-Sol Product, as set
forth on Exhibit E as the same shall be updated from
time to time and in any event promptly after Licensor obtains any
new Third Party Software.
1.23. “
Translated Materials ” means documents, software,
training materials, product materials, scripts, technical
documentation and related information that has been translated by
Licensee for use in the Territory.
1.24. “
Upgrade ” has the meaning set forth in Section
3.4.
1.25. “
Volu-Sol Product ” means the GPS-based personal
tracking system currently in a prototype format that is targeted to
the consumer end-user, (through any channel) and that attaches to
the individual with health, mobility or other health concerns or
impairments so that he or she can communicate to a third party if
needed, the Software incorporated into such product, all
improvements, modifications and derivatives based on such product
or Software, and all Intellectual Property Rights in any of the
foregoing, including, without limitation, such rights in the
Patents.
1.26. “
Volu-Sol Product Warranty ” has the meaning set forth
in Section 4.17.
1.27. “
Warranty Procedures ” has the meaning set forth in
Section 4.17.
2.
License Grants .
2.1.
Product License . Licensor hereby grants to
Licensee (including its present and future affiliates), and
Licensee accepts, an exclusive, sublicensable and transferable
(subject to the provisions hereof) license under the Licensed
Intellectual Property to make, have made, market, distribute, sell
and otherwise commercially exploit the Volu-Sol Product in the
Territory during the Term, subject to all the terms and conditions
of this Agreement. As used in this Agreement,
“exclusive” means that Licensor shall not, during the
Term, have any right to make, have made, market, distribute, sell
or otherwise commercially exploit the Volu-Sol Product in the
Territory or to authorize any affiliate or third party to do
so.
2.2.
Trademark Licenses .
(a)
Licensor hereby grants to
Licensee (including its present and future affiliates), and
Licensee accepts, an exclusive, sublicensable and transferable
(subject to the provisions hereof) license to use the Licensed
Trademarks in connection with the Volu-Sol Product, Product
Marketing Materials relating to such Product or on related
Translated Materials in the Territory, subject to the terms and
conditions of this Agreement. Licensee may, at its
option, place Licensed Trademarks or New Trademarks, or a
combination of the foregoing, on the Volu-Sol
Product. Notwithstanding the foregoing, Licensor may use
any corporate trademark in the Territory for general corporate
purposes, provided Licensor first obtains Licensee’s written
consent, not to be unreasonably withheld and that such Volu-Sol
Trademark is not used in connection with the Volu-Sol Product or
any product competitive similar to the Volu-Sol
Product. Licensee acknowledges that Licensed Trademarks
used in connection with Volu-Sol Products may be visible in the
Territory through the Internet, and such display shall not be
deemed a breach of this Agreement if Licensor has not deliberately
targeted customers in the Territory for the sale of such
products.
(b) Licensee
shall comply with Licensor’s policies and guidelines for use
of the Licensed Trademarks, as such policies and guidelines may be
issued and revised from time to time, and Licensee shall comply
with proper legal standards. The initial or most
prominent use of a Licensed Trademark in all materials shall be
followed by the appropriate trademark symbol (®
or TM). Licensee acknowledges that the good will
and value of the Licensed Trademarks and Licensor’s name may
be adversely affected unless the Volu-Sol Product, Product
Marketing Materials and Translated Materials that use any Licensed
Trademark meet the quality standards of Licensor. Upon
written request from either of the Licensor, Licensee shall submit
to Licensor for review, within a commercially reasonable time,
samples of requested Volu-Sol Products, Product Marketing Materials
or Translated Materials that make use of the Licensed
Trademarks. If so requested in writing, Licensee shall
make any reasonable changes to such materials, provided that
Licensee shall have no obligation to cease use of or destroy
materials where the use of the Licensed Trademarks does not vary
materially from any trademark use guidelines that are developed by
Licensee and Licensor and where the quality of the materials is
reasonably consistent with the quality of such materials produced
by or for Licensor.
2.3.
Copyright License . Promptly after the Effective
Date and from time to time during the Term upon reasonable written
request from Licensee, Licensor shall furnish Licensee with
electronic data files of artwork and information to create
materials for use in connection with the marketing, distribution
and sale of the Volu-Sol Product (“ Product Marketing
Materials ”). Licensor hereby grants to
Licensee (including its present and future affiliates), and
Licensee accepts, under Licensor’s copyrights and other
Intellectual Property Rights relating to the Product Marketing
Materials, a non-exclusive, sublicensable and transferable (subject
to the provisions hereof) right to use, reproduce, prepare
derivative works (including translations) of, display and
distribute the Product Marketing Materials in the Territory during
the Term in connection with the Volu-Sol Product. If
Licensor objects in writing to any versions of the Product
Marketing Materials prepared or used by Licensee, the parties shall
cooperate in good faith to resolve Licensor’s
concerns. Licensee agrees to place such notices on
Product Marketing Materials and translated versions thereof as are
reasonably requested by Licensor to protect its copyrights in such
materials and in the Licensed Trademarks used
therein. Nothing in this Section 2.3 shall prevent
or restrict Licensee from freely creating, distributing or using
any marketing materials for Volu-Sol Products that do not
incorporate the Licensed Trademarks and that do not infringe on
Licensor’s copyrights or other Intellectual Property
Rights.
2.4.
Software License . Licensor hereby grants to
Licensee (including its present and future affiliates), and
Licensee accepts, a non-exclusive, world-wide, sublicensable and
transferable (subject to the provisions hereof) license to access,
distribute, display, host, translate into local languages in the
Territory and otherwise commercially exploit the Software in
connection with the manufacture, marketing, distribution and sale
of Volu-Sol Products in the Territory. For clarity,
monitoring services may be based outside of the Territory provided
such services are directed at Volu-Sol Products in the
Territory.
2.5.
Technology Transfer . Licensor hereby grants to
Licensee (including its present and future affiliates), and
Licensee accepts, an exclusive, sublicensable and transferable
(subject to the provisions hereof) license to the Know How to make,
have made, market, distribute, sell and otherwise commercially
exploit the Volu-Sol Product in the Territory during the Term,
subject to all the terms and conditions of this
Agreement.
2.6.
Sublicenses . Licensee shall have the right to
grant written sublicenses consistent with the terms of this
Agreement to third parties with the appropriate skills and
qualifications to exercise such sublicenses (“
Sublicensees ”). Licensee may appoint
third-party distributors, resellers, dealers and sales
representatives for the Volu-Sol Product in the Territory (“
Distributors ”). Licensee shall require
each Sublicensee and Distributor to agree in writing that it will
comply with the applicable restrictions of this Agreement, and
shall take commercially reasonable measures to ensure that all
Sublicensees and Distributors comply with such terms.
3.
Licensor’s
Services .
3.1.
Transfer of Know How . Within thirty (30)
days of the Effective Date, Licensor shall make available and
disclose to Licensee or its designated representatives all Know How
in Licensor’s possession, custody or control. In
addition, Licensor shall promptly disclose to Licensee all
additional Know How as it becomes available during the Term of the
Agreement.
3.2.
Establishment of Monitoring Centers; Software .
(a) Licensor
shall assist Licensee in the establishment of at least one Local
Communications and Customer Service Center inside the Territory
within two (2) years of the Effective Date. A “
Local Communications and Customer Service Center ”
means a locally staffed surveillance operation within the
Territory, which will fully utilize a hosted Volu-Sol monitoring
and data center infrastructure in support of up to 5,000
in-service devices within the Territory.
(b) Licensor
shall provide the Start-up Services to assist Licensee in the
establishment of one or more Licensee Monitoring Center(s) at
location(s) inside or outside the Territory. The parties
agree to cooperate in good faith to create and attach hereto as
Exhibit D a document that sets out the general requirements of the
parties and a general timetable for establishing the first Licensee
Monitoring Center. The parties will use commercial best
efforts to complete Exhibit D within six (6) months of the
Effective Date. A “ Licensee Monitoring
Center ” means a dedicated monitoring and data center
infrastructure under Licensee’s financial and operational
control and responsibility supporting all in-service devices
throughout the Territory. The first Licensee Monitoring
Center will be capable of supporting the monitoring and tracking of
more than 5,000 customers utilizing the Licensor Software and
Third Party Software in a manner consistent with the functionality
and performance maintained by Licensor in its own monitoring
centers at the time of establishment of the Licensee Monitoring
Center.
(c) Within
thirty (30) days after Licensee so requests in writing,
Licensor shall deliver to Licensee a detailed implementation plan
(the “ Implementation Plan ”) that sets forth
the specific tasks and timetables required to have the first
Licensee Monitoring Center operational. The Licensee
Monitoring Center will be deemed operational when a group of
reasonably skilled technicians selected by Licensee can demonstrate
the functionality of the Volu-Sol Product in a robust test
environment suitable to show potential customers that the system
can be operated to meet their reasonable requirements, provided
that the parties may agree in writing to establish more detailed
acceptance criteria.
(d) For
the Start-up Services (including, for purposes of clarity, the
services provided by Volu-Sol under the Implementation Plan),
Licensee shall pay Licensor the fees mutually agreed upon and set
forth in the Implementation Plan.
3.3.
Software Services .
(a) As
part of the Implementation Plan, Licensor shall set forth the
requirements to deliver and install the Software and Third Party
Software in Licensee’s computer environment, including
specifications of all hardware required by
Licensee. Prior to the date on which the Software is to
be delivered and installed, the parties shall agree in writing on
the criteria for testing and demonstrating that the Software is
compatible and works with the Volu-Sol Product in Licensee’s
hosted environment.
(b) In
addition to any criteria agreed upon by the parties in writing,
Licensor warrants that, at the time the Software is delivered and
installed, such Software, including Third Party Software that is
then part of Licensor’s application, will operate in
Licensee’s environment in substantially the same way as such
Software operates in Licensor’s hosted
environment. If the Software does not meet such
standards in Licensee’s hosted environment, Licensor shall,
at its own expense, correct the Software so that it functions
according to the standards provided. If Licensor is
unable to make the required changes, Licensee may engage its own
software developers, subject to the terms and conditions of this
Agreement, to make appropriate fixes to the Software, and Licensee
shall have the right to set off all such reasonable expenses
against payments required to be made by Licensee under this
Agreement.
(c) During
the Term, Licensor agrees (i) to employ qualified software
developers with the skill and knowledge to maintain and support the
Software and to integrate the Software with any Third Party
Software, or (ii) to enter into a service agreement with one or
more third parties that possess such skills. The parties
acknowledge that Licensor has named Licensee as an authorized
sublicensee under a certain License Agreement by and between
Licensor and RemoteMDx effective February 27, 2009, pursuant to
which, among other things, Licensee (as authorized sublicensee
under such agreement) is entitled to certain software-related
services from RemoteMDx.
3.4.
Upgrades to Volu-Sol Product and Software . On at
least a quarterly basis, Licensor shall notify Licensee in writing
of any upgrades or modifications to the Software or the Volu-Sol
Product developed by Licensor (directly or indirectly) that have
been made available to its own customers (including any bug-fixes)
(each an “ Upgrade ”). Licensor
shall (a) describe such Upgrades and their purpose or
functionality in detail in such notice, and (b) without any
additional charge to Licensee, provide the Upgrade to Licensee in
the format agreed upon by the parties, so that such Upgrade may be
used by Licensee according to the terms of this
Agreement. Any Upgrade to the Volu-Sol Product or
Software shall be deemed part of the Volu-Sol Product or Software
for purposes of this Agreement. Licensor reserves the
right to modify the Volu-Sol Product at any
time. Licensee may continue to distribute the prior
version of a Volu-Sol Product but will use reasonable efforts to
adopt an Upgrade when feasible. If Licensor includes
Third Party Software in any Upgrade, Licensor shall use
commercially reasonable efforts to ensure the interoperability of
such Third Party Software with the Software as it then
exists.
3.5.
Additional Assistance . From time to time,
Licensee may request the services of Licensor for any training,
technical support assistance, marketing assistance, custom
development, and other services. Licensor shall give
reasonable consideration to such requests, and the parties will
reasonably cooperate to agree upon the assistance to be provided by
Licensor, subject to payment as described in
Section 3.6.
3.6.
Professional Services Rates and Fees . Except as
expressly provided in this Agreement, Licensee agrees to pay
Licensor for any training, technical support assistance, marketing
assistance, custom development, and other services provided by
Licensor to Licensee or its customers under this Agreement at
reasonable rates agreed upon by such parties in
writing. Licensee agrees to reimburse Licensor for its
reasonable travel expenses, provided that Licensee may adopt
reasonable travel policies from time to time regarding expenses
that will be reimbursed.
4.
Supply Agreement .
4.1.
Manufacture and Supply . Licensor agrees that it
will supply Licensee with the quantities of Volu-Sol Product when
so requested by Licensee and as agreed upon under a Purchase Order,
subject to the terms and conditions of this Agreement and
Licensor’s reasonable inventory limitations. For
purposes of clarity, nothing in this Section 4 shall be
construed to require Licensee to purchase any Volu-Sol Product from
Licensor.
4.2.
Sales Forecasts . Within three (3) months
after Licensee places Volu-Sol Products in service with customers
in the Territory, Licensee shall provide to Licensor a written
non-binding forecast for its expected sales of Volu-Sol Products
during the then-following fiscal quarter. Thereafter,
within sixty (60) days after the beginning of each of
Licensee’s fiscal quarters, Licensee shall deliver to
Licensor a non-binding, rolling forecast of its expected orders for
Volu-Sol Products in each of the following two fiscal
quarters.
4.3.
Purchase Orders . Licensee may order Volu-Sol
Products by submitting to Licensor a purchase order that sets forth
at minimum (a) a unique purchase order number, (b) a description of
the Volu-Sol Products to be purchased, including any model number
and all necessary technical information (including the country in
the Territory in which the unit will be deployed if applicable),
(c) the quantity of Volu-Sol Products requested, (d) the delivery
address and mode of shipment, (e) the delivery date and (f) the
bill-to address (a “ Purchase Order
”). The price for any Volu-Sol Product ordered
hereunder shall be as set forth on Exhibit G attached
hereto. This Agreement shall govern each Purchase Order,
and any conflict or inconsistency between the terms of this
Agreement and a Purchase Order shall be resolved in favor of this
Agreement. No terms in any Purchase Order that conflict
with this Agreement and no additional or conflicting terms in any
acknowledgement or acceptance from Licensor shall
govern.
4.4.
Acceptance of Purchase Orders . Licensor shall
notify Licensee within five (5) Business Days of receipt of
any Purchase Order setting forth either (a) its acceptance of
the Purchase Order; or (b) any proposed amendments to the
delivery date and/or quantities of the Volu-Sol Product
ordered. Licensor shall use commercially reasonable
efforts to fulfill Licensee’s requests for Volu-Sol Product,
provided that Licensor may reject a Purchase Order if Licensee is
past due on any undisputed payments owed. Failure by
Licensor to notify Licensee within five (5) Business Days of
receipt of a Purchase Order shall be deemed acceptance of the
Purchase Order by Licensor.
4.5.
Lead Times . Unless otherwise expressly agreed to
in writing by Licensor, Purchase Orders for Volu-Sol Products must
allow for at least ninety (90) days from the date of receipt of the
Purchase Order to the date of requested shipment of such Products,
unless the number of units of Volu-Sol Products under such Purchase
Order exceeds 1,000, in which case the Purchase Order must allow
for at least 120 days from the date of receipt of the Purchase
Order to the date of requested shipment of such
Products.
4.6.
Cancellations . A Purchase Order may be canceled,
in whole or in part, upon written notice by Licensee at any time
prior to thirty (30) days before the applicable delivery date(s)
specified in the applicable Purchase Order. Licensee
shall reimburse Licensor for the actual costs incurred by Licensor
that are directly related to the cancelled Purchase Order and that
cannot be mitigated by Licensor within a reasonable time through
returns, reuse or other commercially reasonable
measures. Licensee shall have no right to cancel a
Purchase Order within thirty (30) days of the delivery date
specified in the applicable Purchase Order. In no event
shall Licensee be liable for any incidental, special, consequential
or punitive damages for cancellation of any Purchase Orders
submitted under this Agreement.
4.7.
Shipment; Delivery . Licensor shall ship Volu-Sol
Products in accordance with each binding Purchase Order (each such
Product so shipped by Licensor including any Software included
therewith, a “ Supplied Product
”). Unless otherwise expressly agreed by Licensor,
all Supplied Product deliveries shall be made FCA
Incoterms 2000, Licensor’s place of shipment, with
shipping costs and insurance paid by Licensee. Title to
Supplied Products shall pass to Licensee upon full payment for the
Supplied Products. Licensee shall bear all risk of loss
or damage to Supplied Products during transit, and is responsible
for filing any necessary claims with the carrier or insurance
company. All Supplied Products will be new unless the
applicable Purchase Order expressly states that a Supplied Product
is reconditioned, provided that such reconditioned Supplied Product
will remain subject to the Volu-Sol Warranty as if it were
new.
4.8.
Inspection; Acceptance . Notwithstanding any
written confirmation from the supplying party, all Supplied
Products supplied hereunder shall be received by Licensee subject
to inspection and performance testing in a commercially reasonable
manner. Licensee shall have ten (10) Business Days from
the date of receipt of each shipment of the Supplied Products to
determine to its reasonable satisfaction whether the Supplied
Products are of the correct count and conform to the applicable
Product Documentation (the “ Inspection Period
”). Licensee’s failure to provide notice of
acceptance or rejection (pursuant to Section 4.9 below) to Licensor
prior to the end of the applicable Inspection Period shall be
deemed acceptance. The acceptance of any Supplied
Product shall in no way limit Licensee’s rights under any
warranty or for indemnification hereunder.
4.9.
Rejection .
(a) If
Licensee reasonably determines that the Supplied Products do not
conform to the applicable Product Documentation, Licensee may, at
its option, reject the same by giving Licensor written notice
thereof by no later than the close of business on the last day of
the applicable Inspection Period. Licensee may hold the
Supplied Products for Licensor, may require replacements of
non-conforming Supplied Products or may return any rejected
Supplied Products to Licensor for credit for the full price of the
rejected Supplied Product. If Licensee determines that
the Supplied Products are not of the correct count (excluding a
reasonable percentage of excess units shipped by Licensor as safety
stock, as agreed by the parties), Licensee shall promptly notify
Licensor. If the number of units shipped was excessive,
Licensee may at its option return the excess units at
Licensor’s expense.
(b) Licensee
shall maintain a safety stock of Volu-Sol Products, segregated at
the premises of Licensee, in an amount to be agreed upon in writing
from time to time by the parties. All safety stock shall
be the property of Licensor until Licensee elects to take ownership
of and pays for such safety stock. Until Licensee elects
to take ownership of and pay for such safety stock, Licensor shall
own and maintain such safety stock. If Licensor made a
good faith effort to deliver all the required Volu-Sol Products and
the number of such units nevertheless was insufficient, Licensor
shall have an additional twenty (20) Business Days to deliver the
shortfall. Licensor may draw on any safety stock to
satisfy the shortfall.
4.10.
Invoices . Except as expressly provided herein,
Licensor shall invoice Licensee for the Supplied Products price
upon shipment of the Supplied Products under each Purchase
Order.
4.11.
Payment .
(a) Payment
of undisputed amounts for Supplied Products shall be due thirty
(30) days from the date of receipt by Licensee of an invoice,
provided, that if Licensee rejects such Supplied Products pursuant
to Section 4.9, and Licensor thereafter delivers replacement
Supplied Products, then payment shall be due in U.S. dollars
for such replacement Supplied Products within thirty (30) days
after receipt by Licensee of the invoice for replacement Supplied
Products.
(b) Notwithstanding
the payment terms of Section 4.11(a), if Licensee places a Purchase
Order for more than 1,000 units of Volu-Sol Products and
Licensor’s third-party manufacturers require cash prepayment
before beginning such work, Licensee agrees to pre-pay fifty
percent (50%) of the estimated cost of such order, which shall be
due upon Licensor’s acceptance of the Purchase
Order. Licensor agrees to grant to Licensee a Purchase
Money Security Interest in the pre-paid parts, and to take such
actions and deliver such documents as may be required to perfect
such security interest. Remaining payments under such
Purchase Order will be due and payable according to the provisions
of Section 4.11(a).
4.12.
Quality Standards . Supplied Products delivered
by Licensor pursuant to this Agreement shall be of the same quality
as like products sold by Licensor in its usual channels of
commerce. Licensor acknowledges that, unless expressly
agreed in writing, Supplied Products will be manufactured to
electrical, technical and regulatory standards applicable to the
country in the Territory in which such Supplied Product will be
deployed.
4.13.
Restrictions . For all Supplied Products, except
as expressly permitted under this Agreement, Licensee shall refrain
from doing any of the following without the prior written consent
of Licensor:
(a) removing
or altering, or permitting the removal or alteration of, any patent
markings, trademarks, logos, trade dress, service marks, trade
names, corporate names, written notices, serial numbers, labels,
tags or other identifying marks, symbols or legends of Licensor
(including the Licensed Trademarks) or any third party or any legal
or other industry mandatory markings affixed to the Supplied
Products or their documentation, packaging or labeling;
or
