Exhibit 10.24
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DISTRIBUTOR SALES, SERVICE AND LICENSE AGREEMENT
This Distributor
Sales,
Service
and License Agreement (this
"Agreement") is made
as of the fifth day of
February, 2007, by and between
SecureAlert, Inc., a
Utah corporation ("SecureAlert"), and Seguridad Satelital
Vehicular S.A. de
C.V., a company
organized and existing under the laws of
Mexico ("Distributor").
WHEREAS,
SecureAlert markets
and sells TrackerPAL(TM) electronic
monitoring bracelet
devices and related
accessories and equipment as described
in the Product
Description attached
hereto as Schedule A, as such schedule may
be changed from time to time by SecureAlert by written notice to Distributor,
such products to be hereinafter referred to as the "Products";
and
WHEREAS,
Distributor desires
to act as an exclusive authorized
Distributor of the Products in the geographic area consisting of the country
of
Mexico, as such
geographic area may be changed from time to time by SecureAlert
by written notice to
Distributor
(the "Sales
Territory"),
to the customers
described in Schedule
B, as such schedule
may be changed from
time to time by
SecureAlert by written notice to Distributor ("Customers");
NOW, THEREFORE,
in consideration of the foregoing and of the
mutual
representations,
covenants and agreements contained herein and for other good
and valuable
consideration,
the receipt and
sufficiency
of which are
hereby
acknowledged, the parties hereto agree as follows:
1.
Distribution of the Products.
1.1 Appointment.
Subject to the
provisions in Section
3.1(b) hereof,
SecureAlert hereby appoints Distributor as its exclusive authorized
distributor
of the Products
to Customers in and for use within the Sales Territory in
accordance with the
provisions of this
Agreement. Distributor
hereby accepts
such appointment
and agrees to use its
best efforts to develop and exploit the
market and to solicit
sales and obtain
orders for the purchase of the Products
by Customers for use in the Sales Territory.
1.2 Subdistributors.
Distributor
may not appoint, delegate to,
deputize, authorize or
in any way whatsoever
empower any other party to act on
Distributor's behalf
under this Agreement or otherwise assign its rights under
this Agreement to a third party, without the express, prior written approval of
SecureAlert. If
Distributor proposes to enter into any such agreements with any
party to market,
distribute or sell
Products, the terms
and provisions of all
such agreements
shall be void and have
no effect unless they
are approved by
SecureAlert and
contain undertakings
on the part of such
parties to carry out
and adhere to all applicable obligations and duties of
Distributor hereunder. A
failure by any such
party to carry
out or adhere
to said obligations shall
constitute a breach of this Agreement and SecureAlert shall be entitled to all
of the rights and remedies provided hereunder upon a breach by
Distributor.
1.1 Competitive
Products. During the
term of this Agreement and for a
period of two (2) years after its termination for any reason,
Distributor shall
not, and Distributor
shall cause its Affiliates not to, directly or indirectly,
market, sell or
otherwise distribute
other products which may be
competitive
with the Products in
the Sales Territory
without the express,
prior written
consent of
SecureAlert.
Distributor
acknowledges
and agrees that (i) the
covenants and
restrictions
set forth in this Section 1.3 are necessary,
fundamental and
required for the protection of the legitimate continuing
interests of
SecureAlert, and (ii)
a breach or attempted
breach of any of the
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covenants and
restrictions
contained in this Section 1.3 will result in
irreparable harm
and damage to SecureAlert which cannot be adequately
compensated by monetary damages. Accordingly, in addition to all
other remedies
that may be available in this Agreement, at law or in equity,
SecureAlert shall
be entitled
to the immediate remedy of a temporary restraining order or
preliminary injunction
and such other form of temporary or permanent injunctive
or other equitable relief as may be issued by a court of competent
jurisdiction
to restrain or enjoin a breach or threatened breach of all or any
portion of the
covenants and
restrictions or to
specifically
enforce the provisions
of this
Section 1.3.
2.
Distributor's Duties. Distributor's duties hereunder shall include,
but
not be limited to:
(a) fully and accurately advising present and potential
Customers
within the Sales Territory of Product prices, terms and conditions of
sale;
(b) regularly
and diligently soliciting Products orders from
present and potential
Customers within the Sales Territory for use
within the Sales Territory;
(c) making regular sales calls or solicitations upon present and
potential Customers
within the Sales Territory and such other calls or
solicitations as
SecureAlert may, from time to time, reasonably direct;
(d) promptly
distributing to all present and potential Customers
located within
the Sales Territory all SecureAlert promotional
materials, offers
and consideration relating to the Products, as
appropriate;
(e) consulting
with and furnishing information to SecureAlert
concerning Customers'
requirements and other
matters which may affect
Product sales in the Sales Territory;
(f) establishing and operating a call center, including engaging
a
sufficient
number of trained professional staff and procuring
sufficient facilities
and subject to Section 5 below, performing
monitoring services
concerning
the Products and Clients (as
defined
below) without the assistance of SecureAlert;
(g) coordinating problem resolution with third parties,
including
cellular carriers and other service carriers, and obtaining sufficient
cellular carrier services to address voice and data service
coverage to
meet Distributor's
needs and the needs of
any third party
requesting
monitoring of Clients;
(h) retaining, together with the Customers, complete authority
for
case selection
(subject
to Section 6.7(d)), management and
administration with
respect to each Client, including monitoring
responsibility with respect to each Client;
(i) identifying
and making
available Distributor staff and/or
equipment that complies with SecureAlert's policies as in effect from
time to time;
(j) not making any
representations or
giving any warranties
or
other benefits in
favor of the Customers
or proposed Customers
or to
the detriment of SecureAlert beyond those contained in SecureAlert's
then current conditions of sale;
(k) reporting
full
information
to SecureAlert to enable
SecureAlert to ensure that the Products meet local regulations
relating
to health, safety, environment, labeling and the like;
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(l) refraining
from any act or
practice that (i) might tend to
diminish or inhibit Product sales or in any way adversely
reflect upon
SecureAlert or (ii) constitutes a violation of applicable law;
(m) refraining
from
promoting,
soliciting
or otherwise
participating in the
sale in the Sales
Territory of products that
compete directly or indirectly with the Products;
(n) refraining
from changing Product labels or containers,
repackaging the
Products or otherwise
presenting
or marketing the
Products in competition with or as similar substitute items for other
products of SecureAlert sold in the Sales Territory;
(o) furnishing to SecureAlert copies of all proposed advertising,
technical, sales
and other materials relating to Products and
refraining from or discontinuing the use of any such materials
which in
the opinion of
SecureAlert are
inappropriate
or misleading or may
subject SecureAlert to liability;
(p) supplying
SecureAlert with such reports and other information
as SecureAlert may reasonably request from time to time;
(q) refraining
from (i) acting in any
manner that could
expose
SecureAlert to any
liability and (ii) pledging or purporting to pledge
SecureAlert's credit;
(r) informing
SecureAlert
of any actual or, to Distributor's
knowledge,
reasonably likely,
infringements
of its Intellectual
Property rights and assisting SecureAlert in the safeguarding of such
legal rights;
(s) not disputing the right of SecureAlert to its trademarks and
not registering or having registered in any country any word
or symbol
whatsoever for the Products or any of SecureAlert's other products or
products under development;
(t) not disputing the ownership by SecureAlert of all
Intellectual
Property rights in and to the Products, Software or Support Services,
regardless of (i)
whether any such
rights were conceived by, were
created by, or initially accrue to Distributor or (ii) when such
rights
came into existence;
(u) not marketing
the Products (i) for sale, delivery or use
outside the Sales
Territory,
unless otherwise agreed in writing in
advance with
SecureAlert, (ii) for
sale inside the Sales Territory if
the Products is
ultimately
destined for delivery or use outside
the
Sales Territory,
unless otherwise agreed in writing in advance
with
SecureAlert or (iii) for sale, delivery or use in any manner other
than
the Permitted Use;
(v) not marketing
the Products
(i) for sale and
delivery other
than to Customers,
unless otherwise
agreed in writing in advance with
SecureAlert, or
(ii) for sale to Customers, if the Products are
ultimately destined
for delivery to or use by persons other than
Customers, unless agreed in writing in advance with
SecureAlert;
(w)
without limiting the obligations in Section 1.3, not
developing, creating,
improving or assisting any third party to
develop, create or
improve, any
product, software or service that
competes directly or indirectly with the Products, Software or Support
Services;
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(x) exporting the Products from the United States, importing the
Products into the Sales Territory, including obtaining licenses,
paying
all duties, clearing
customs, transporting, and such other related
activities as may be necessary to export, import, inspect, transport
and store the Products;
(y) complying, at its
sole expense, with all
Laws applicable to
the performance of its duties under this Agreement and to the
operation
of this Agreement,
including the filing of all documents and obtaining
of all permits, authorizations and the like required by the Laws of
all
the jurisdictions in the Sales Territory; and
(z) paying all expenses of and incidental to the distributorship
obligations hereunder
incurred by the Distributor, including all
acquisition, payment and maintenance costs of all hardware and
software
associated with
the Distributor's operations, including, without
limitation, server
hardware, network
equipment, third party
software
licenses, telephony
infrastructure,
cellular carrier fees
(including
certification and
service
subscriptions),
optional software services
integrated local government fees, local government certification fees
and operational
fees and fees to facilitate language localization
associated with the Products and Software.
3.
Certain Terms and Conditions of Product Sales.
3.1 Product Inventory; Minimum Purchase Requirements.
(a) Distributor shall
purchase a minimum number of Units for sale
to Customers in the Sales Territory, during the Initial Term and
during
each Renewal Term, in accordance with the terms set forth in
Schedule C
attached to this
Agreement, as such
schedule may be changed from time
to time (i) in
writing by SecureAlert and Distributor or (ii) by
SecureAlert in accordance with Section 6.1.
(b) If Distributor fails to purchase the minimum quantities
during
the Initial Term or
any Renewal Term as
provided in this Section 3.1,
SecureAlert, at
its option, on 30 days prior written notice to
Distributor, may (i)
amend this Agreement to provide that Distributor
is its non-exclusive authorized distributor of the Products in the
Sales Territory or (ii) terminate this Agreement.
4.
Terms and Conditions of Software License.
4.1 License. In
connection with the sale of the Products, SecureAlert
hereby grants
to Distributor a limited, non-exclusive, non-transferable,
non-assignable, non-sublicensable, limited license (the "License")
to use in the
Sales Territory
software for
electronically
monitoring
individuals
who are
either required
to be or have
agreed to be
tracked by the Tracker PAL(TM)
electronic monitoring
bracelet device comprising part of the Products (the
"Clients") with
SecureAlert's
proprietary
software (the "Software"). The
Software is in object code form only to be installed and run on a single server
solely for the Permitted Use. Except as otherwise expressly provided under this
Agreement, Distributor
shall have no right, and Distributor specifically agrees
not to: (1)
sublicense,
distribute
or modify, or adapt, port, translate,
localize or create
derivative works of
the Software; (2)
reproduce, copy,
in
whole or in part, decompile, decrypt, reverse engineer, disassemble
or otherwise
reduce the Software to human-readable form; (3) export the Software
outside the
Sales Territory;
(4) duplicate the Software except for a single backup or
archival copy
that is conspicuously labeled "SecureAlert Confidential and
Proprietary Software;" (5) use the Software for commercial
timesharing,
rental
or service bureau use;
or (6) monitor or agree to monitor any
Client without
first causing the Client and/or third party requesting the monitoring of the
Client to agree to the
terms of Section
6.7 of this
Agreement.
Title to the
Software, all
property rights, including all the tangible and intangible
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Intellectual Property
rights therein, and all materials other than the Products
supplied to Distributor under this Agreement shall be and remain the sole
and
exclusive property of SecureAlert. Distributor agrees that it shall
at all times
keep the Software free from any legal process or lien whatsoever,
and agrees to
give SecureAlert
immediate notice if any legal process or
lien is asserted or
made against the Software.
4.2 Operation.
On a monthly basis, SecureAlert shall provide to
Distributor a new key code required to operate the Software.
Distributor
shall
provide SecureAlert a secure access to the network server upon
which Distributor
shall house the Software in order for SecureAlert to perform maintenance and
upgrade functions.
Distributor shall
provide SecureAlert
remote access at all
times to Distributor's
TrackerPAL(TM) and
TrackerPAL(TM)
Gateway servers
for
support and
troubleshooting. Such
access shall be
provided through a
secured
firewall access and/or a dedicated site-to-site data link. Distributor shall
provide and maintain,
at its cost, a data
connection between
SecureAlert and
Distributor's server
facility. The data connection shall
facilitate a minimum
sustained bandwidth of 1.5mbs or higher.
4.3 License Fee. During the term of the Agreement, Distributor agrees
to pay to SecureAlert,
the license fee as set forth in
Schedule D attached to
this Agreement
as it may be changed
by mutual agreement
of SecureAlert and
Distributor from time to time in writing. Distributor agrees that
Distributor's
obligation to pay is unconditional and is not subject to any
reduction, set-off,
defense or counterclaim for any reason whatsoever. If at any time, Distributor
has any balance owing
under this Agreement
that is more than
thirty (30) days
past due, SecureAlert
has the right to withhold the monthly key code referenced
in Section 4.2 above.
4.4 Non-Disclosure
of Software. Distributor acknowledges that the
Software is
confidential and
proprietary
information
of SecureAlert, that
Distributor may obtain or have access to additional confidential
and proprietary
information of
SecureAlert,
and that all such
confidential
and proprietary
information is the sole and exclusive property of SecureAlert or other
entities
or persons Affiliated with SecureAlert (the "Software Proprietary
Information").
Distributor
agrees to keep all such Software Proprietary Information
confidential, to limit
its use to the Permitted Use, and to protect it with at
least the same
level of protection that Distributor affords its own most
confidential and
proprietary
information.
If Distributor is required by
applicable Law or
regulation
or by legal
process to
disclose any Software
Proprietary
Information,
Distributor agrees that it shall provide SecureAlert
with reasonable
prior written notice
of such request to enable SecureAlert to
seek a protective order or other appropriate remedy prior to
disclosure. Should
this Agreement be terminated for any reason whatsoever, Distributor shall, at
the request of
SecureAlert, either
destroy or promptly
(but no later than
15
days after such
termination) deliver
to SecureAlert all
Software
Proprietary
Information,
including all
documents or other media containing Software
Proprietary
Information,
including all
copies, reproductions, summaries,
analysis or extracts thereof, in the possession of Distributor,
and Distributor
shall, concurrently
with such destruction
or delivery, certify
to SecureAlert
that Distributor
has done so. The
obligation to keep the Software Proprietary
Information
confidential pursuant
to this Section shall survive the expiration
or termination of this Agreement.
4.5 Intellectual Property. Without limiting anything in Section 10,
any
rights, including all
Intellectual Property
rights, developed by
or resulting
from Distributor's
performance
pursuant to this License will be owned by
SecureAlert, and
Distributor will assist SecureAlert, as reasonably necessary,
in further documenting such ownership, including the execution of
any assignment
documents.
5.
Support Services and Training.
5.1 Support Center. In connection with the sale of the Products and
the
licensing of the Software pursuant to the License,
SecureAlert will
provide to
Distributor reasonable
support services related to the Software, including
Training (as
defined below) ("Support Services"). Distributor may contact
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SecureAlert's Support Center at any time, via telephone, facsimile
or email, and
SecureAlert shall use
its commercially
reasonable
efforts to respond to any
service inquiries
within fifteen (15) minutes following receipt of such service
inquiries by either (a) telephone or (b) the same means by which
the inquiry was
submitted.
5.2 Software Maintenance. SecureAlert will provide
reasonable Software
Maintenance to Distributor that may include modifications, upgrades, updates,
fixes and/or patches
to the Software as part of the Support Services (each, a
"Maintenance Release").
5.3 Software
Errors. An "Error" means a failure of the
Software to
conform to the specifications set forth in the Software
documentation, resulting
in the inability to use, or material restriction in the use of, the
Software. An
"Update" means either a software modification or addition that, when made or
added to the Software,
corrects the Error, or a procedure or routine that, when
observed in the regular operation of the Software, eliminates the practical
adverse effects
of the Error on the Distributor. SecureAlert will make
commercially
reasonable efforts
to provide an Update designed to solve or
by-pass a reported Error. The Update may be provided in the
form of a temporary
fix, procedure or routine, to be used until a Maintenance Release
containing the
permanent Update is
available.
Distributor
shall reasonably determine the
priority level of Errors, pursuant to the following protocols:
(a)
Severity One Error. SecureAlert promptly initiates the
following procedures:
(1) assigns
specialists to correct the Error on
an expedited basis; (2) provides ongoing communication on the
status of
an Update; and (3)
begins to provide a temporary workaround or fix. A
Severity One
Error means the (i) system is severely impacted or
completely shut down
or (ii) system
operations
or mission-critical
applications are down.
(b) Severity Two Error. SecureAlert assigns one of its
specialists
to begin an Update, and provides additional, escalated procedures as
reasonably determined
necessary by SecureAlert Support Services staff.
SecureAlert exercises
commercially
reasonable
efforts to provide a
workaround or
include a fix for the
Severity Two Errors in the next
Maintenance Release.
A Severity Two Error means (i) the system is
functioning with
limited capabilities, or (ii) is unstable with
periodic interruptions, or (iii) system operations or
mission-critical
applications are periodically down.
(c) Severity Three Error. SecureAlert may include an Update in
the
next Maintenance
Release. A Severity Three Error means there
(i) are
errors in fully operational systems, (ii) is a need to clarify
procedures or information in documentation, or (iii) is a request
for a
product enhancement.
(d) Maintenance
Releases and Upgrades. During the term of the
License, SecureAlert
will make Maintenance Releases available to
Distributor if, as and
when SecureAlert
makes any such Maintenance
Releases available to
its other customers.
If a question arises as to
whether a product
offering is an Upgrade
or a new product or feature,
SecureAlert's opinion
will prevail, provided
that SecureAlert
treats
the
product offering as a new product or feature for its other
customers generally.
5.4 Conditions
for Providing Support. SecureAlert's obligation to
provide Support
Services is
conditioned upon the
following: (a)
Distributor
makes reasonable efforts to solve the problem after consulting with
SecureAlert;
(b) Distributor provides SecureAlert with sufficient
information and
resources
to correct the problem
either at
SecureAlert's Support
Center or via
dial-up
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access at Distributor's site, as well as access to
personnel, hardware
and any
additional software
involved in discovering the problem; (c) Distributor
promptly installs all Maintenance Releases; (d) Distributor procures,
installs
and maintains all equipment, telephone lines, communication
interfaces and other
hardware necessary to operate the Software; and (e) Distributor is
not in breach
of any of its representations, covenants or other obligations in
this Agreement,
including its duties set forth in Section 2.
5.5 Exclusions from Support Services. SecureAlert is not obligated
to
provide Support Services in the following situations: (a) the Software has been
changed, modified
or damaged (except if under the direct supervision of
SecureAlert); (b) the
problem is caused by Distributor's negligence, hardware
malfunction or other causes beyond the reasonable control of SecureAlert; (c)
the problem is with third party software not licensed through
SecureAlert;
(d)
Distributor has not installed and implemented Maintenance
Release(s) so that the
Software is a version
supported by
SecureAlert; (e)
Distributor has not
paid
fees when due; and (f) any of the conditions in Section 5.4 is not
satisfied at
the time such services are to be performed. If SecureAlert chooses to provide
Support Services
under any of the situations listed above, it may charge
Distributor time and materials for such Support Services.
5.6
Training. In connection with the sale of the Products and the
licensing of the Software pursuant to the License, SecureAlert will provide, at
no additional cost to
Distributor,
training from time to
time on an as needed
basis as determined by Distributor and agreed to by SecureAlert,
for the purpose
of assisting
Distributor
to incorporate the Software into Distributor's
monitoring system (the "Training"). The Training shall not require the
presence
of SecureAlert
personnel in the Sales Territory. Distributor shall provide, or
make available to
SecureAlert
at no cost,
(i) any information, hardware or
software resources or
other materials of Distributor reasonably necessary for
SecureAlert to
perform the Training, (ii) reasonable assistance in the
performance of such
Training; and (iii) reasonable access to Distributor's
facilities and personnel.
6.
Other Terms
and Conditions of Product Sales, License, Services and
Other Agreements.
6.1 Price and Fees.
(a) Product Sales.
The prices for the
Products to be supplied by
SecureAlert to Distributor are set forth in Schedule C attached to
this
Agreement, as it may
be changed by mutual agreement of SecureAlert and
Distributor from time
to time in writing;
provided, however,
if the
direct or indirect
cost to SecureAlert of providing the Products
increases or decrease after the Effective Date, SecureAlert may, in
its
sole
discretion, amend Schedule C to change the prices to the extent
of
any such cost increase or decrease. Prior to any unilateral
amendment
of such Schedule by SecureAlert, SecureAlert shall provide
Distributor
with reasonable
documentation
to evidence such cost increase or
decrease, and any such
amendment to Schedule C shall become effective
immediately upon notice of such amendment to Distributor.
(b) License. As
consideration for the License, Distributor shall
pay SecureAlert
a license fee as set forth in Schedule D
attached to
this Agreement, as it may be changed by mutual agreement of
SecureAlert
and Distributor from time to time in writing.
(c) Certain Fees. Prices and fees for the Products and the
License
do not include transportation, freight or insurance costs, all of
which
shall be borne
by Distributor. The prices and fees set forth in
Schedule C
and Schedule D do not include any fees, charges,
withholdings, commissions, etc., nor any U.S. or Mexican federal,
state
or local taxes or import tariffs which may be applicable to the
Products sold or
Software or Support Services provided under this
Agreement. A sum equal
to any such amounts will be added (grossed up)
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to the amounts to be paid to SecureAlert pursuant to this Section 6.1
in case SecureAlert
has the legal obligation to collect, pay or
withhold any such amounts under any applicable Laws. Distributor shall
pay any such amounts to SecureAlert unless Distributor provides
SecureAlert with a
valid tax exemption
certificate authorized
by the
appropriate taxing
authority. Each Party
shall be responsible for its
own income taxes in respect of any income earned or losses
incurred by
such Party under this Agreement.
6.2 Payment Terms.
(a) Product
Sales. Distributor shall pay for the Products
purchased hereunder
prior to the
delivery of such Products and in
accordance with the terms and provisions of this Section 6.
SecureAlert
will not be obligated to deliver any Product until it has received
full
payment for (i) such
Product and any
related fees,
charges, taxes,
duties, imports, charges, assessments and other amounts and costs
to be
paid to SecureAlert
by Distributor in
respect of the Product and (ii)
all other amounts then due and payable under this Agreement.
(b) License. Commencing on the License Fee Start Date,
Distributor
shall pay the License
fees set forth in
Schedule D and in
accordance
with the terms and provisions of this Section 6. SecureAlert shall
have
the right, in its sole
discretion, to
terminate the License if at any
time
Distributor
has a License
fee balance owing that is more than
thirty (30) days past due.
(c) Expense
Reimbursement.
Distributor
shall pay or
reimburse
SecureAlert for travel, meal, lodging and living expenses
incurred by
SecureAlert's
personnel in
performing
the Support Services if
Distributor requests
SecureAlert's
personnel to travel outside the
Sandy, Utah, U.S.A. vicinity and SecureAlert reasonably determines
that
the need for such Support Service is related to Distributor's
breach of
its obligations under this Agreement, Distributor's failure to
properly
maintain the
Products or Software
or any other matter that could have
reasonably been resolved by Distributor without SecureAlert personnel
traveling outside the Sandy, Utah, U.S.A. vicinity.
(d) Invoices. With
respect to all payments and reimbursements to
be made by Distributor
to SecureAlert pursuant to this Agreement,
including Sections
6.2(a), (b) and (c), SecureAlert shall send
Distributor an invoice
containing a
description of the relevant fees,
charges, taxes,
tariffs, duties, imports, charges, withholdings,
assessments and other
amounts and costs to be paid to SecureAlert by
Distributor.
(i) Upon receipt of an order for the Products pursuant to
Section 6.6, SecureAlert shall send Distributor an invoice
containing a
description of the
relevant fees,
charges, taxes,
tariffs, duties,
imports, charges, withholdings, assessments and other amounts and
costs
to be paid to
SecureAlert by
Distributor
in respect of the
ordered
Products. All
such invoiced amounts shall be due and payable by
Distributor prior to
the delivery
of the Products covered by such
order.
(ii) On or about the
first day of each
month during
the
term of this Agreement, SecureAlert shall send Distributor an
invoice
containing a description of the accrued and unpaid License fees and
all
other charges, taxes, tariffs, duties, imports, charges,
withholdings,
assessments and other
amounts and costs to be paid to SecureAlert by
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Distributor under this
Agreement,
together with the interest on any
past due amounts,
through the date of such invoice. All such invoiced
amounts shall be due and payable by Distributor within thirty days of
the date of such
invoice, except
for any past
due amounts and any
interest thereon, which shall be immediately payable.
(iii) From time to time, SecureAlert shall send Distributor
an invoice
containing
a description of the amounts to be paid or
reimbursed to SecureAlert pursuant to Section 6.2(c) or otherwise
under
this Agreement,
to the extent such
amounts are not
reflected in an
invoice delivered pursuant to Section 6.2(d)(i) or (ii),
together with
reasonable supporting
documentation of such amounts. All such invoiced
amounts
shall be due and payable by Distributor within five days of the
date of such invoice,
together with the interest on any past due
amounts, through the date of such invoice.
(iv) Distributor
agrees to pay
interest on any past due
amounts at the rate of one percent (1%) per month, or the maximum rate
permitted by applicable Law, whichever is less, until full payment of
any past due amount has been made to SecureAlert.
(e) Payments upon
Termination.
Immediately upon a termination of
this Agreement,
all amounts owed to
SecureAlert under this
Agreement
shall become immediately due and payable, to the extent not already
due
and payable, and
Distributor shall pay
such amounts to SecureAlert on
or before the tenth day following the termination of this Agreement.
Distributor agrees to
pay interest on any past due amounts at the rate
of one percent
(1%) per month, or the maximum rate permitted by
applicable Law,
whichever is less, until full payment has been made to
SecureAlert.
(f) Payment
Method; Currency. All payments to SecureAlert
hereunder shall be
made by (i) wire transfer of immediately available
funds to an account
designated by
SecureAlert
in writing or (ii)
by
irrevocable letters of
credit issued directly
in favor of SecureAlert
by a United
States bank acceptable to SecureAlert, in its sole
discretion, the
proceeds of which shall be available to SecureAlert at
sight upon
presentation of its
invoices. All payments
to SecureAlert
hereunder shall be made in United States dollars.
6.3 Delivery. All
deliveries of the Products to Distributor hereunder,
unless otherwise agreed in writing, shall be made FOB Sandy,
Utah, U.S.A., and
liability for
loss or damage in transit, or thereafter, shall pass to
Distributor upon
SecureAlert's
delivery of
Products to a common
carrier for
shipment. Shipping
dates are approximate
and are based, to a great extent, on
prompt receipt
by SecureAlert of all necessary ordering information from
Distributor.
Distributor shall bear all costs of transportation, insurance and
customs, and will
promptly reimburse
SecureAlert
if SecureAlert prepays or
otherwise pays for such expenses. SecureAlert shall not be in
default by reason
of any failure in its
performance under this
Agreement if such failure results
from a force majeure event as described in Section 17 or otherwise
arises out of
causes beyond the control of SecureAlert. Without limiting any other provision
of this Agreement,
SecureAlert
shall not at any time
be liable for
indirect,
special, punitive,
incidental or
consequential damages or lost profits arising
out of the delivery,
or failure to deliver,
the Products.
Distributor or its
appointed customs
broker shall take possession of the Products at the U.S.
border at a specific
location to be agreed
upon by the
Parties; Distributor
shall bear the costs and be responsible and liable for the legal
importation and
status of the Products in the Sales Territory.
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<PAGE>
6.4 Regulatory Approval. Distributor shall be responsible
for securing
all marketing and other regulatory approvals and permits necessary or
otherwise
required in the
Sales Territory and shall pay for all costs associated
therewith. Distributor shall submit to SecureAlert for approval all
applications
and correspondence
in connection with
securing such approvals or permits prior
to the submission of such applications or correspondence to any Governmental
Authority.
6.5 Import and Export Costs. Any taxes, duties, imports, charges or
assessments levied on
the Products,
Software or Support
Services or
payments
hereunder by any Governmental Authority within the Sales
Territory shall be the
responsibility of and
paid by Distributor.
Any similar costs levied by the
United States of America or any state thereof shall be the
responsibility of and
paid for by
Distributor.
Distributor shall be
responsible
for obtaining all
export licenses required for shipment of the Products to the Sales
Territory.
6.6 Orders.
Distributor
agrees to submit written orders for the
Products to SecureAlert at its address set forth in Section 16 of
this Agreement
on order forms prescribed and supplied by SecureAlert. All such orders (i) must
be submitted
at least 60 days prior to the requested delivery date of the
Products covered by such order, (ii) shall be firm and binding
upon Distributor
upon submission and (iii) are subject to approval and acceptance by
SecureAlert.
On the first day of each month during the term of this
Agreement,
Distributor
shall provide
SecureAlert
with a good faith
estimate of the Products to be
ordered by Distributor
during the immediately
following twelve month period;
provided that such forecast shall not constitute an order and shall
not obligate
SecureAlert to
approve or accept any particular order. SecureAlert and
Distributor
acknowledge and agree
that the extent to which any order or series
of orders deviates
from the forecast may affect SecureAlert's approval or
acceptance of any particular order.
6.7 Warranty;
Disclaimer;
Limitation
of Liability; Remedies;
Indemnification.
Distributor agrees on
its own behalf and
agrees to cause its
Clients and any third party requesting the monitoring of
Clients by Distributor
to agree prior to receiving monitoring services from Distributor
that:
(a) Regardless
of cause, Distributor and such Clients and such
requesting third parties (collectively "Servicees") shall not assert,
and SecureAlert shall
not be liable for, any claim whatsoever against
SecureAlert for any
and all direct, indirect, special, punitive,
incidental or
consequential
damages or lost profits or any other
damages, without limitation, which may result from the use of,
delivery
of, failure
to deliver, or any inadequacy of, the Products, the
Software, the Support
Services or any obligation of SecureAlert under
this Agreement.
SecureAlert and the
manufacturer(s) and
vendor(s) of
the Products and Software are separate, independent companies, and
that
neither a manufacturer
nor any vendor of the
Products and Software is
SecureAlert's agent,
partner or joint venture. No representation,
guaranty, or warranty
by a manufacturer or
any vendor of the Products
and Software is binding on SecureAlert, and no breach by a
manufacturer
or any such vendor shall excuse Distributor's obligations hereunder.
Servicees' sole remedy against SecureAlert for any failure
whatsoever
relating in any way to the use of the Products and Software shall be
limited to the replacement of the Products and Software; provided,
that
any such failure of the Products and Software was not caused by any
act
or omission on the part of any Servicee.
(b) NOTWITHSTANDING
ANYTHING TO THE
CONTRARY IN THIS
AGREEMENT,
SECUREALERT PROVIDES
THE PRODUCTS, SOFTWARE AND SUPPORT SERVICES,
"AS-IS" WITH ALL
FAULTS AND MAKES NO WARRANTIES, WHETHER EXPRESS,
10
<PAGE>
IMPLIED, STATUTORY
OR OTHERWISE, INCLUDING WARRANTIES OF TITLE,
NONINFRINGEMENT,
MERCHANTABILITY,
QUALITY, ACCURACY AND FITNESS FOR A
PARTICULAR PURPOSE IN
CONNECTION WITH THIS
AGREEMENT,
THE PRODUCTS,
SOFTWARE OR SUPPORT
SERVICES EVEN IF SECUREALERT HAS BEEN INFORMED OF
SUCH PURPOSE.
THERE IS NO
WARRANTY THAT ANY PRODUCTS, SOFTWARE OR
SUPPORT SERVICE,
THE INFORMATION PROVIDED THEREIN OR IN CONNECTION
THEREWITH OR
SECUREALERT'S EFFORTS
WILL FULFILL ANY OF THE SERVICEES'
OR ANY OTHER PERSON'S NEEDS.
(c) SECUREALERT IS NOT RESPONSIBLE FOR ANY INJURIES, DAMAGES, OR
LOSSES TO THE
SERVICEEES, OR TO ANY
OTHER PERSON OR TO ANY
PROPERTY,
REGARDLESS OF OWNER, CAUSED BY THE USE, MISUSE, IMPROPER ACTIVATION OR
IMPROPER MAINTENANCE
OF THE PRODUCTS OR
SOFTWARE, OR THE FAILURE TO
CONNECT TO, OR THE INABILITY TO ACCESS, THE USER INTERFACE, THE
FAILURE
TO FOLLOW ANY
INSTRUCTIONS OR ABIDE BY ANY POLICIES RELATED THERETO OR
TO ANY MONITORING
SERVICE, OR THE FAILURE OF THE SAME TO OPERATE
AS
ANTICIPATED, INCLUDING, AS A RESULT OF ANY DEFECTS IN THE
MANUFACTURING
OR PROGRAMMING OF THE
SAME OR ANY FAILURE OF THE PRODUCTS OR SOFTWARE,
USER INTERFACE OR ANY MONITORING SERVICE TO OPERATE FOR ANY REASON.
THE
SOFTWARE AND THE ASSOCIATED DATA ARE SUBJECT TO THE LIKELIHOOD OF
HUMAN
AND MACHINE
ERRORS, OMISSIONS, DELAYS, AND LOSSES, INCLUDING
INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA, THAT MAY GIVE RISE TO
LOSS
OR DAMAGE. SECUREALERT
SHALL NOT BE LIABLE FOR ANY ERRORS, OMISSIONS,
DELAYS OR DAMAGES RESULTING FROM OR CAUSED BY USE OF THE
SOFTWARE.
(d) Neither the Products, the Software, the Support Services nor
any use thereof will prevent, and none of them is intended to
prevent,
the commission
of any harmful,
tortious, or illegal acts. It may be
possible for a Client to remove the Product by unauthorized
means, and
SecureAlert expressly
disclaims,
and Servicees expressly release
SecureAlert from, any liability for any harmful, tortious, or illegal
acts committed by any third party, including, without limitation, any
Client monitored with
the Software. Should
any disclaimer or limit on
liability for indirect, special, punitive, incidental or consequential
damages or lost profits set forth in this Agreement be found invalid
under the Laws or policy of the state or country which the terms of
this Agreement,
including the License, are interpreted, then such
indirect, special,
punitive, incidental or consequential
damages or
lost profits shall be
liquidated
and shall equal $100
per indirect,
special, punitive,
incidental or
consequential injury or loss or lost
profits. The use of
the Products
and the related monitoring to be
provided by Distributor or any third party requesting the
monitoring of
Clients shall be
reserved for those
Clients who are
considered to be
minimal flight
risks and minimal
risks for commission of crimes or
torts against person or property. Servicees assume all risks
related to
the use of the
Products, Software and
Support Services and
Servicees
agree to indemnify,
defend and hold SecureAlert harmless from and
11
<PAGE>
against any and all claims for any losses, damages, or injuries which
may be asserted on any basis, including those listed above, by Client
or any other Person
against SecureAlert.
Servicees agree to require
each Customer to agree in writing not to assert any such claims
against
SecureAlert. The provisions of this Section 6.7 shall continue to
be in
force even after the expiration or termination of this
Agreement.
(e) SecureAlert is not
responsible,
and shall have no
liability
for, (i) overseeing or managing any operation or maintenance
(hardware,
software,
administration or
configuration of Distributor's telephony
services,
data/application
servers, data
network, data center
operations,
Internet ISP
services,
infrastructure
or, (ii)
deficiencies,
limitations or services outages of any cellular carrier,
telephony services
or data center, (iii) services outside of any
software developed by SecureAlert, implementation or operability of
any
architectural
recommendations or continuation planning or any similar
services provided by SecureAlert hereunder.
(f) SecureAlert has set its prices and entered into this
Agreement
in reliance upon the
disclaimers
of warranty, the limitations of
liability and the indemnity, defense and exculpation obligations
herein
and that the same form an essential basis of the bargain between the
Parties. Distributor
has not entered into
this Agreement in
reliance
upon any express or implied warranty or representation by
SecureAlert.
6.8 Product or Software Changes. SecureAlert reserves the right at
any
time to make changes in the Products or Software or, following 30
days notice to
Distributor, to
discontinue the
manufacture or sale of
any of the Products or
the License.
Distributor
agrees that
SecureAlert
shall have n
