Exhibit 4.3


 





 


AUTHORIZED DIGITAL CINEMA RESELLER MASTER
AGREEMENT


 


This DIGITAL CINEMA
RESELLER Agreement (“Agreement”) is made as of May 23, 2005 (“Effective Date”),
by and between NEC Solutions (America), Inc., a Delaware corporation having a
place of business at 4111 West Alameda Avenue, Suite 412 Burbank, California
91505(hereinafter called “NEC”), and Ballantyne of Omaha, Inc., a Delaware
corporation, having its principal place of business at 4350 McKinley Street,
Omaha, Nebraska 68112 (“hereinafter referred to as RESELLER”).  For purposes of this Agreement, RESELLER
refers to RESELLER, its employees, contractors, and agents.


 


BACKGROUND


 


NEC markets digital
cinema products, and cinema advertising products, related NEC Software
(hereinafter referred to as “NEC Products” or “Products”), Services and
CineCast Software.   NEC Products and
Services to be included under this Agreement shall be specified in Addendum
A.  NEC desires to obtain the services of
RESELLER and RESELLER desires to provide services to NEC in accordance with the
terms, conditions, and covenants set forth in this Agreement.  Accordingly, in consideration of the mutual
covenants and undertakings set forth herein, the parties hereby agree as
follows:


 


AGREEMENT


 


1.             APPOINTMENT
AND ACCEPTANCE


 


1.1           NEC hereby
appoints RESELLER as an authorized, non-exclusive
RESELLER of NEC Products, Services, and CineCast Software in the Territory.


 


1.2           Territory
is the United States of America, Canada, Central and South America, and the
Caribbean Islands.


 


1.3           RESELLER’s
appointment is made solely for the purpose of resale of the PRODUCTS to end-user
customers.  Prices and additional Terms
and Conditions for applicable PRODUCTS are set forth in the Addendum(a).


 


1.4           Other
specified products may be added as PRODUCTS by NEC during the Term of this
Agreement or any renewal hereof.  Those
PRODUCTS may be subject to additional terms and requirements as determined by
NEC. NEC is not obligated to add any additional products and NEC reserves the
right at any time to change, modify, or discontinue any model or type of
PRODUCTS.


 


1.5           NEC will
have the right, from time to time, at its sole discretion, to increase or
decrease the number of authorized NEC resellers in the vicinity of RESELLER’s
authorized location(s) or elsewhere without advance notice to RESELLER.


 


1.6           RESELLER
accepts its appointment hereunder.


 


2.             RESPONSIBILITIES
OF RESELLER


 


2.1           RESELLER
will represent to all of its present and future customers that NEC is the
digital cinema solutions provider of RESELLER’s choice for digital cinema
products, cinema advertising products and services. RESELLER will use best
efforts to market and sell NEC Products, Services and CineCast Software.


 


	
  Digital Cinema
  Reseller Agreement

  	
  May 2005

  



 


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2.2           RESELLER
shall employ and maintain adequately trained and competent office and sales
personnel in numbers sufficient to carry out and perform properly and fully all
of RESELLER’s obligations and responsibilities under this Agreement.


 


2.3           RESELLER
shall furnish NEC, at intervals prescribed by NEC, with sales call reports,
sales forecasts, and such other information pertinent to RESELLER’s performance
hereunder as NEC may request.


 


2.4           RESELLER
shall keep NEC informed as to competitive and economic conditions within the
market channels which may affect the marketing or sales of NEC Products or
Services.


 


2.5           RESELLER
shall make best efforts to attend meetings and trade shows required by NEC.


 


2.6           In the
event that RESELLER becomes aware of any actual or potential claim against NEC
by any person or entity, RESELLER shall notify NEC immediately.


 


2.7           RESELLER
and its staff at all times shall conduct themselves in a manner consistent with
the high image, reputation, and credibility of NEC and shall engage in no
activities which reflect adversely on NEC.


 


2.8           RESELLER
shall comply with all applicable federal, state, and local laws and regulations
in performing its responsibilities hereunder.


 


3.             COMPETITIVE
PRODUCTS 


 


3.1           Unless
authorized by NEC in writing, RESELLER shall not at any time during the term of
this Agreement, act as a reseller or otherwise sell or promote any other
digital cinema projectors.


 


4.             TAXES


 


4.1           Prices are
exclusive of all sales, use and like taxes. RESELLER will pay all taxes
associated with the sale and licensing of all NEC PRODUCTS purchased or
licensed under this Agreement exclusive of taxes based on NEC’s income. Any
taxes will be in addition to the prices of the PRODUCTS and if required to be
collected or paid by NEC, will be reimbursed by RESELLER to NEC. If claiming a
sales tax exemption, RESELLER must provide that information to NEC at the time
it submits this Agreement and provide NEC with valid tax exemption certificates
for those states where deliveries are to be made at the time RESELLER’s
purchase order is submitted.


 


5.             PURCHASE
ORDERS, SHIPMENTS, CANCELLATIONS & CHANGES


 


5.1           Each of RESELLER’s orders is subject to NEC’s acceptance or rejection. In
addition to any specific rights of rejection set forth in this Agreement, NEC
will have the right, for any reason whatsoever, to reject any order, in whole
or in part.


 


5.2           To receive PRODUCTS, RESELLER must deliver to NEC a hard copy purchase
order or follow the procedure set forth in Section 5.2(a).  All RESELLER purchase orders must reference
the assigned customer number.  NEC
reserves the right to reject any order which is not NEC credit-approved or does
not conform with the provisions of this Agreement.  All orders accepted for delivery will be
governed exclusively by the terms and conditions of this Agreement. Unless NEC
expressly agrees in writing, no additional or different terms and conditions
appearing on the face or reverse side of any order issued by RESELLER will
become part of that order. Acknowledgment of RESELLER’s purchase order by NEC
will not constitute acceptance of any additional or different terms and
conditions.


 


a.             In
the event that RESELLER elects the following procedure, then in lieu of
submitting a hard copy purchase order, RESELLER may order PRODUCTS by
submitting a purchase order via facsimile machine or other electronic means 


 


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acceptable
to NEC. By executing this Agreement, RESELLER authorizes NEC to accept orders
communicated to NEC by facsimile machine or other electronic means acceptable
to NEC. All those orders described in this Section 5.2 will be binding upon
RESELLER and are subject to acceptance by NEC.


 


b.             The
authorization to accept orders as described in Section 5.2(a) will remain in
effect until NEC’s Sales Order Administration Department receives written
notification by certified mail terminating that procedure. Unless NEC agrees
otherwise in writing, no termination of this procedure will affect or cancel
any order which has been accepted or shipped by NEC.


 


5.3           Unless otherwise stated in the applicable Product Addendum(a) attached
hereto, for standard PRODUCT, RESELLER may cancel a shipment or request changes
in a scheduled shipment date at no charge up to five (5) business days prior to
shipment.  In the event RESELLER cancels
a shipment within five (5) business days of shipment, a change order of five
percent (5%) of the shipment’s price will be levied.  No cancellation or change may be made after
shipment.


 


5.4           Shipments are subject to availability. NEC will use reasonable efforts to
meet any scheduled shipment date, but reserves the right to schedule and/or
reschedule any order, at its discretion. NEC will not be liable for delay in
meeting a scheduled shipment date for any reason. If PRODUCTS are in short
supply, NEC will allocate them equitably, at NEC’s discretion, among resellers
and all other sales channels. NEC will have the right to make partial shipments
with respect to RESELLER’s orders, which shipments will be invoiced separately
and paid for when due, without regard to subsequent shipments.  Delay in shipment or delivery of any
particular installment will not relieve RESELLER of its obligation to accept
the remaining installments. NEC WILL NOT BE LIABLE TO RESELLER FOR ANY DAMAGES,
WHETHER INCIDENTAL, CONSEQUENTIAL, OR OTHERWISE FOR FAILURE TO FILL ORDERS,
DELAYS IN SHIPMENT OR DELIVERY, OR ANY ERROR IN THE FILLING OF ORDERS,
REGARDLESS OF THE CAUSE.


 


5.5           All PRODUCTS shall be delivered to RESELLER F.O.B. Origin. Transportation
costs, insurance coverage and all other expenses applicable to shipment from
NEC to RESELLER’s identified delivery place will be the responsibility of
RESELLER.  Upon transfer to the common
carrier, title to all PRODUCTS shall pass to RESELLER (except that Title to all
Licensed Programs remains in NEC or its licensor) and all risk of loss or
damage to the PRODUCTS shall be borne by RESELLER.


 


6.             PRICE
AND PAYMENT TERMS


 


6.1           Prices for
the PRODUCTS purchased/licensed under this Agreement will be as specified in
the applicable NEC price list prevailing at the time NEC receives a purchase
order. In the event of a price increase, RESELLER may cancel any unshipped
orders by written notice to NEC within ten (10) days of receipt of notice of
the price increase.


 


6.2           Subject to
credit approval by NEC, payment is due within thirty (30) days from the date of
invoice.


 


7.             RELATIONSHIP
OF THE PARTIES


 


7.1           RESELLER
acknowledges that it has its own independently established business which is
separate and apart from NEC’s business. 
RESELLER shall, at all times, be considered an independent contractor
with respect to its relationship with NEC. 
Nothing contained in this Agreement shall be deemed to create the
relationship of employer and employee, master and servant, franchiser and
franchisee, partnership or joint venture between the parties.


 


7.2           Any
commitment made by RESELLER or its selling locations to its end-user customers
with respect to quantities, delivery, modification, interfacing capability,
suitability of software or hardware, or suitability of the PRODUCTS in specific
applications will be RESELLER’s sole responsibility, unless prior written
approval is obtained from an officer of NEC. 
RESELLER has no authority to modify any warranty or end user license
agreement contained in this Agreement or the Product Addendum(a) or make any
other commitment on behalf of NEC, and RESELLER will indemnify, defend and hold
NEC harmless from any liability, suit or proceeding for any modified warranty
or other commitment made by RESELLER or its selling locations.


 


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8.             CREDIT
AND FINANCIAL REQUIREMENTS


 


8.1           RESELLER represents and warrants to NEC that RESELLER is in a good and
substantial financial condition and is able to pay all bills when due. RESELLER
will, from time to time, furnish any financial statements or additional
information as may be requested by NEC to enable NEC to determine RESELLER’s
financial condition.


 


8.2           RESELLER, at all times, will comply with the terms, conditions and
policies established by the Credit Department of NEC, including, but not
limited to, those set forth in the NEC Credit Application, applicable
Guaranties and Security Agreement(s).  If
NEC extends credit to RESELLER, those agreements are incorporated by reference.


 


8.3           NEC, at its option, may extend credit to RESELLER or may require, at any
time, that sales be made on an advance-payment basis if, in NEC’s sole
judgment, RESELLER does not qualify for credit. 
If credit is extended, NEC will have the right to establish credit
limits for RESELLER and to change those credit limits or any other financial
requirements, from time to time, at NEC’s sole discretion.


 


8.4           Sales will
be made on the payment terms in effect at the time that an order is accepted,
and RESELLER will pay all invoices when due. 
RESELLER will refrain from making deductions of any kind from any
payments due NEC unless a credit memorandum has been issued by NEC to RESELLER.  No payment by RESELLER to NEC of any lesser
amount than that due to NEC will be deemed to be other than a payment on
account, and no endorsement or statement on any check or in any letter
accompanying any check or other payment will be deemed an accord and
satisfaction.  NEC may accept any payment
without prejudice to NEC’s right to recover any remaining balance or to pursue
any other remedy provided in this Agreement, in any Security Agreement(s)
executed by the parties, or by applicable law.


 


8.5           If RESELLER becomes delinquent in payment obligations or other credit or
financial requirements established by NEC, or, if in the sole judgment of NEC,
RESELLER’s credit becomes impaired, NEC will have any or all of the following
rights and remedies in addition to any other rights and remedies provided in
this Agreement, in any Security Agreement(s) executed by the parties, or by
applicable law:


 


a.             NEC
may refuse to accept any new orders, may cancel or delay shipment of any orders
accepted previously, or may stop any shipments in transit whereupon, the
parties agree that title to those PRODUCTS will revert to NEC.  RESELLER will pay NEC the difference between
the amounts originally owed for those PRODUCTS and the amount for which NEC is
able to sell those PRODUCTS.


 


b.             If
NEC previously has extended credit to RESELLER, and NEC elects to make further
sales to RESELLER, NEC may refuse to extend further credit and may require
payment on an advance-payment basis.


 


c.             NEC
may declare all outstanding amounts immediately due and payable,
notwithstanding any credit terms previously in effect.


 


8.6           NEC WILL NOT BE LIABLE TO RESELLER FOR LOSSES OR DAMAGES OF ANY KIND AS A
RESULT OF THE EXERCISE BY NEC OF ITS RIGHTS AND REMEDIES HEREUNDER.


 


8.7           INTEREST WILL ACCRUE ON ALL DELINQUENT AMOUNTS AT THE RATE OF ONE AND ONE-HALF
PERCENT (11⁄2%) PER MONTH (EIGHTEEN PERCENT [18%] PER ANNUM) FROM THE DUE DATE OF
INVOICE.  However, if the maximum rate of
interest permitted by applicable law or regulations is less than that provided
for herein, then the interest will be reduced to the maximum allowable rate.


 


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8.8           In the event that it becomes necessary for NEC to institute litigation to
collect sums owed by RESELLER, NEC will be entitled to an award of reasonable
attorneys’ fees and costs incurred by NEC in connection with the litigation, if
a judgment in NEC’s favor is entered in the litigation.


 


9.             RESELLER’S
BUSINESS EXPENSES


 


9.1           RESELLER
shall bear the entire responsibility for any and all expenses incurred in
connection with its business (including, but not limited to, leasehold
expenses, salaries, telephone, and traveling expenses), and NEC shall not be
obligated to pay any such expenses or to reimburse RESELLER unless otherwise
agreed to in writing between the parties.


 


10.          LIMITED
WARRANTY


 


10.1         NEC extends
a limited warranty solely to end-user customers for NEC Products as set forth
in the Limited Warranty Statement accompanying each NEC Product. Limited
warranties as they pertain to NEC’s Software are contained in the applicable
End User License Agreement or maintenance agreements.  The CineCast Software is provided AS IS, AS
AVAILABLE and WITH ALL FAULTS.


 


10.2         RESELLER
will make no warranty representation on NEC’s behalf beyond those contained in
the applicable Limited Warranty Statement. The warranty shall commence when the
PRODUCTS are resold and/or licensed to the end-user by RESELLER, subject to the
terms and conditions of the Limited Warranty Statement.  NEC makes no warranty to RESELLER with
respect to the PRODUCTS. In the event any PRODUCT fails to operate, according
to NEC’s specifications, prior to being resold to an end-user, RESELLER’s
exclusive remedy and NEC’s sole responsibility shall be (1) to repair the
PRODUCT or (2), the return and replacement of the PRODUCT in accordance with
NEC’s then prevailing policy.


 


10.3         The above
warranty is contingent upon the proper use of the PRODUCTS and will not apply
to PRODUCTS on which the original identification marks have been removed or
altered. In addition, this warranty shall not apply to defects or failure due
to: (i) accident, neglect or misuse; (ii) failure or defect of electrical
power, external electrical circuitry, air-conditioning or humidity control;
(iii) the use of items not provided by NEC; (iv) unusual stress; (v) any party
other than NEC or an authorized NEC representative modifying, adjusting,
repairing, servicing or installing the PRODUCT.


 


10.4         EXCEPT FOR
THE EXPRESS WARRANTY CONTAINED IN THE LIMITED WARRANTY STATEMENT ACCOMPANYING
THE PRODUCT, NEC DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING THE
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING,
BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR
PERFORMANCE OF PRODUCTS, WHETHER MADE BY NEC’S EMPLOYEES OR OTHERWISE, WHICH IS
NOT CONTAINED IN THIS AGREEMENT, SHALL NOT BE DEEMED TO BE A WARRANTY BY NEC
FOR ANY PURPOSE, OR GIVE RISE TO ANY LIABILITY OF NEC WHATSOEVER.  THE WARRANTIES AND CORRESPONDING REMEDIES AS
STATED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHERS WRITTEN OR ORAL.


 


11.          CONFIDENTIAL
INFORMATION


 


11.1         In the
performance of this Agreement, each party may have access to confidential,
proprietary or trade secret information owned or provided by the other party
relating to products, marketing plans, business plans, financial information,
specifications, flow charts and other data (“Confidential Information”).  All Confidential Information supplied by one
party to another pursuant to this Agreement shall remain the exclusive property
of the disclosing party.  The receiving
party shall use such Confidential Information only for the purposes of this
Agreement and shall not copy, disclose, convey or transfer any of the
Confidential Information or any part thereof to any third party.  Neither party shall have any obligation with
respect to Confidential Information which: (i) is or becomes generally known to
the public by any means other than a breach of the obligations of a 


 


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receiving party; (ii) was previously known to the
receiving party; or (iii) is independently developed by the receiving party.


 


12.          TRADEMARKS


 


12.1         RESELLER
shall not use any NEC owned or licensed trademark or trade name in a way that
implies RESELLER is an agency or branch of NEC. 
RESELLER will immediately change or discontinue any use as requested by
NEC.


 


12.2         RESELLER shall not register or use
any NEC owned or licensed trademark or trade name, in whole or in part, as a
domain name on the Internet without prior written approval of NEC.


 


12.3         RESELLER has no right, title or
interest in any NEC trademark or trade name and is not authorized to use any
NEC trademark or trade name other than the designated trademarks. Any rights in
any NEC trademark or trade name acquired through RESELLER’S use belong solely
to NEC. Upon termination of this Agreement, RESELLER will discontinue any
representations that it is an Authorized RESELLER.


 


13.          CHANGES


 


13.1         NEC reserves
the right at any time to change, modify, or discontinue any model or type of
Products or Services but will provide at least thirty days notice to RESELLER.


 


14.          DURATION
OF AGREEMENT/TERMINATION


 


14.1         This
Agreement shall become effective as of the Effective Date and shall remain in
full force and effect for an initial term of three years and, unless terminated
sooner as hereinafter provided, shall automatically renew for additional twelve
(12) month successive term(s).  NEITHER
PARTY SHALL BE OBLIGATED TO EXTEND THE DURATION OF THIS AGREEMENT UPON THE
EXPIRATION OF THE INITIAL TERM OR ANY SUCCEEDING TERM.


 


14.2         Either
RESELLER or NEC may terminate this Agreement without cause at any time during
the initial term or any succeeding term. If the termination is without cause,
ninety (90) days advance written notice must be provided by the terminating
party to the other party. Each party acknowledges that such period is adequate
to allow it to take all actions required to adjust its business operations in
anticipation of termination.


 


14.3         Either party
may terminate this Agreement if the other party commits a breach of any
obligation hereunder which is not remedied within thirty (30) days of receipt
of written notice specifying that breach. 
Cause includes but is not limited to the following:  termination by either party if the other
party assigns or attempts to assign this Agreement, except as permitted
hereunder, liquidates or terminates its business, is adjudicated as bankrupt,
makes an assignment for the benefit of creditors, invokes the provisions of any
law for the relief of debtors, or files or has filed against it any similar
proceeding.


 


14.4         Upon
expiration or termination of this Agreement, RESELLER shall cease holding
itself out in any fashion as a RESELLER for NEC, and shall return to NEC, all
sales literature, price lists, customer lists, and any other documents,
materials, or tangible items pertaining to NEC’s business.


 


14.5         Termination
of this Agreement or Addendum(a) will not affect any of RESELLER’s pre-termination
obligations, including, but not limited to, any outstanding payment obligations
hereunder. Any termination of this Agreement or Addendum(a) will be without
prejudice to the enforcement of any undischarged obligations owing NEC existing
at the time of termination.


 


14.6         Upon any
termination of this Agreement, any orders outstanding and unshipped as of the
termination date will be deemed canceled, and NEC will have no obligation to
fill same. Notwithstanding the foregoing, NEC shall be obligated to fill all
orders accepted prior to receipt of the notice of cancellation provided that
that this Agreement is not terminated by NEC for cause.  If this Agreement is terminated by either
party with advance notice, NEC will have the right to reject 


 


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all or
part of any orders received from RESELLER during the period after notice but
prior to the effective date of termination (hereinafter called “the final
period”) if availability of the PRODUCTS is insufficient at that time to
meet the needs of NEC and its customers fully. In any event, NEC may limit
shipments during the final period to an amount not exceeding RESELLER’s average
monthly purchases from NEC during the three (3) months prior to the month in which
notice of termination is provided. Notwithstanding any credit terms made
available to RESELLER prior to that time, any of the PRODUCTS shipped by NEC to
RESELLER during the final period must be paid for by certified or cashier’s
check prior to shipment.


 


14.7         Within ten
(10) days following the effective date of any termination of this Agreement,
RESELLER will submit to NEC, if requested by NEC, a list of all PRODUCTS sold
by NEC to RESELLER and remaining in RESELLER’s inventory as of that effective
date. NEC will have the option to repurchase any or all of those PRODUCTS, but
will not be required to do so. If NEC desires to exercise its option hereunder,
it will notify RESELLER within thirty (30) days after receipt of the PRODUCT
list from RESELLER. Upon receipt of notice, RESELLER, at its expense, will
cause those PRODUCTS selected by NEC for repurchase to be delivered to those
location(s) in the U.S.A. as NEC may designate. NEC will have the right to
inspect all returned merchandise before establishing final disposition, and
will be entitled to reject and return to RESELLER, freight collect, any
PRODUCTS which, in NEC’s sole judgment, are in unacceptable condition. RESELLER
will be credited for any accepted PRODUCTS at prices agreed upon between the
parties, but in no event will the credit be greater than the respective prices
paid by RESELLER for those PRODUCTS, less the costs of any necessary repair,
refurbishing or repackaging.


 


14.8         THIS
AGREEMENT IS EXECUTED BY BOTH NEC AND RESELLER WITH THE KNOWLEDGE THAT IT MAY
BE TERMINATED OR NOT RENEWED.  NEITHER
RESELLER NOR NEC SHALL BE LIABLE TO THE OTHER FOR COMPENSATION, REIMBURSEMENT
FOR EXPENSES, LOST PROFITS, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OF
ANY OTHER KIND OR CHARACTER, BECAUSE OF ANY EXERCISE OF ITS RIGHT TO TERMINATE
THIS AGREEMENT AS PROVIDED HEREUNDER, OR BECAUSE OF ANY ELECTION TO REFRAIN
FROM EXTENDING THE DURATION OF THIS AGREEMENT UPON THE EXPIRATION OF THE
INITIAL TERM OR ANY SUCCEEDING TERM.


 


15.          OPTIONAL
PROGRAMS


 


15.1         NEC may, from time to time, but with no obligation to do so, offer various
programs (“Programs”) as defined in those Program Guides, to its Resellers,
such as, but not limited to, Soft Dollar Programs, Promotions and Rebates. If
RESELLER elects to participate in any type of Program(s) offered by NEC to its
Resellers, then RESELLER agrees to comply with and be governed by the terms and
conditions of those Program(s), including any policies and procedures
applicable thereto. In all cases where participating in those Program(s) may
require RESELLER to enter into separate agreements with third parties, or where
those Programs are administered by third parties, RESELLER agrees that NEC will
have no liability arising out of or in connection with that Program.


 


16.          RESERVED.


 


17.          GOVERNMENT
EXPORT RESTRICTION


 


17.1         RESELLER
agrees that the PRODUCTS purchased hereunder will not be exported directly or
indirectly, separately or as part of a system without first obtaining a license
from the U.S. Department of Commerce or any other appropriate agency of the
U.S. Government, as required. RESELLER also acknowledges that the PRODUCT may
contain crypotographic material that may be subject to US export laws and/or
subject to other countries’ import and export laws.  The RESELLER will be solely responsible for
complying with any export or import restrictions.


 


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18.          GOVERNMENT PROCUREMENT


 


18.1        No
United States Government procurement terms and conditions will be deemed
included hereunder or binding on either party, unless specifically accepted in
writing and signed by both parties.


 


19.          INDEMNITY
AND LIMITATION OF LIABILITY


 


19.1         RESELLER
agrees to and does hereby fully indemnify, defend and hold harmless NEC, its
parent, subsidiaries and affiliates and the officers, directors, and employees,
(hereinafter referred to in this paragraph as “the Indemnified Parties”), at
RESELLER’s own expense, from and against any claim, suit, cause of action,
proceeding or liability (including without limitation, reasonable attorneys’
fees and court costs), brought against any of the Indemnified Parties by a
third party directly or indirectly based upon or related to any breach by
RESELLER of this Agreement or any other omissions or acts of RESELLER, its employees
or agents, which are outside the scope of RESELLER’s authority hereunder.  NEC shall notify RESELLER in writing of such
claim and provide RESELLER reasonable assistance (at RESELLER’s expense) for
the defense of the same.  RESELLER shall
pay all damages or settlements resulting from the claim, but RESELLER shall not
be responsible for any settlement made without RESELLER’s prior written
consent.  NEC reserves the right to
participate in any such litigation with counsel of its own choosing, at NEC’s own
expense.


 


19.2         NEC will
defend RESELLER against a claim that a digital cinema hardware product or a
cinema advertising hardware product (“Hardware Product”) supplied hereunder
infringes a U.S. patent or copyright and NEC will pay any resulting cost, damages,
and reasonable attorneys’ fees finally awarded, if RESELLER promptly notifies
NEC in writing of the claim, NEC is given sole control of the defense and all
related settlement negotiations, and RESELLER provides NEC complete information
concerning the claim.


 


19.3         If any
Hardware Product becomes or in NEC’s opinion is likely to become the subject of
such a claim, RESELLER will permit NEC, at its option and expense, either to
procure the right for RESELLER to continue using the Hardware Product or to replace
or modify the same so that it becomes non-infringing; and if neither of the
foregoing alternatives is available on terms that are commercially reasonable
in NEC’s sole judgment, RESELLER will return the Hardware Product on written
request by NEC. NEC agrees to grant RESELLER a credit for returned Hardware
Product as depreciated. The depreciation will be an equal amount per year over
the life of the Hardware Product as established by NEC.  The parties acknowledge and agree that NEC’s
obligation under this Section 17 is conditioned on RESELLER’s agreement to the
foregoing.


 


19.4         NEC will
have no obligation to RESELLER under this Section 17 if any patent or copyright
infringement or claim thereof is based upon: 
(i) use of any Hardware Product in connection or in combination with
equipment, software or devices not supplied by NEC; or (ii) RESELLER’s use of a
Hardware Product other than it is intended; or (iii) the unauthorized
modification of the Hardware Product by RESELLER; or (iv) NEC’s compliance with
RESELLER’s designs, specifications or instructions.  RESELLER will indemnify, defend and hold
harmless NEC from any loss, cost or expense suffered or incurred in connection
with any suit, claim or proceeding brought against NEC which arises from any
claim related to or arising from subsections (i) – (iv) of this Section 17.4.


 


19.5         The parties
acknowledge and agree that the foregoing states NEC’s entire liability for
patent and copyright infringements by Hardware Products furnished under this
Agreement.


 


19.6         NOTWITHSTANDING ANY PROVISION TO THE
CONTRARY, THE MAXIMUM LIABILITY OF NEC TO RESELLER, ITS CUSTOMERS OR ANY PERSON
WHATSOEVER ARISING OUT OF THIS AGREEMENT OF OR IN CONNECTION WITH ANY SALE,
LICENSE, USE OR OTHER EMPLOYMENT OF THE NEC PRODUCTS OR SERVICES, WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT, OR
OTHERWISE, SHALL IN NO CASE EXCEED THE ACTUAL AMOUNTS PAID BY RESELLER TO NEC
WITHIN THE PREVIOUS TWELVE MONTHS OF NEC’S ACKNOWLEDGMENT OF THE CLAIM.  IN NO EVENT SHALL NEC BE LIABLE TO RESELLER
FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR
FOR ANY DAMAGES RESULTING FROM 


 


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LOSS OF USE, DATA OR PROFITS, WHETHER IN CONTRACT, TORT, STRICT LIABILITY
OR OTHERWISE.


 


20.          FORUM
FOR DISPUTES AND WAIVER OF JURY TRIAL


 


20.1         If, during
the term of this Agreement, or at any time after its termination, either NEC or
RESELLER commences a suit, action, or other legal proceedings against the
other, its officers, agents, employees, and/or ex-employees, arising out of or
in connection with this Agreement, the breach thereof, or to its termination,
whether or not other parties are also named therein, the forum for the same,
including but not limited to, the forum of the trial, shall take place in
accordance with this Section.  Any such
action shall be brought exclusively in the appropriate state or federal courts
located in the County of Santa Clara, State of California.


 


20.2         In the event that either NEC or RESELLER brings suit against the other
party for any matter arising out of or in connection with this Agreement and
the party which is sued is ultimately adjudicated to not have liability, then
the party bringing suit agrees to pay the other party’s reasonable attorneys’
fees and litigation costs.


 


20.3         THE PARTIES
MUTUALLY ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY RELATING IN ANY MANNER TO
THIS AGREEMENT, ANY BREACH OF THIS AGREEMENT OR ITS TERMINATION MAY INVOLVE
DIFFICULT OR COMPLEX ISSUES WHICH MAY BETTER BE UNDERSTOOD BY A JUDGE RATHER
THAN A JURY.  ACCORDINGLY, THE PARTIES
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THEIR RIGHTS TO A JURY
TRIAL IN CONNECTION WITH ANY SUCH LITIGATION AND CONSENT TO A TRIAL BEFORE A
JUDGE SITTING WITHOUT A JURY.


 


21.          APPLICABLE
LAW


 


21.1         This
Agreement shall be governed and construed in all respects in accordance with
the laws of the State of California, without giving effect to conflict of laws
provisions.


 


22.          MISCELLANEOUS


 


22.1         Assignment.  RESELLER
is appointed as one of NEC’s RESELLERS because of NEC’s confidence in RESELLER,
which confidence is personal in nature. RESELLER may not assign, transfer, or
sell all or any of its rights under this Agreement (or delegate all or any of
its obligations hereunder) without the prior written consent of NEC.  NEC may assign this Agreement only to a
parent, subsidiary, or affiliated firm, or to another entity in connection with
the sale or other transfer of all or substantially all of its business
assets.  Subject to these restrictions,
the provisions of this Agreement shall be binding upon and inure to the benefit
of the parties, their successors, and permitted assigns.


 


22.2         Notices. Unless otherwise agreed to by the
parties, all notices required under this Agreement shall be made personally or
by certified mail, return receipt requested, and all notices shall be addressed
to the attention of the party executing the Agreement or its successor;
provided, however, that notices of PRODUCT, price and/or discount changes shall
be made by regular first-class mail.


 


Notices
will be addressed to the attention of:


 


	
  If to NEC:

  	
   

  	
  If to RESELLER:

  
	
   

  	
   

  	
   

  
	
  NEC Solutions
  (America), Inc.

  	
   

  	
  Ballantyne of
  Omaha, Inc.

  
	
  Contracts
  Administration

  	
   

  	
  John Wilmers

  
	
  10850 Gold
  Center Drive, Suite 200

  	
   

  	
  4350 McKinley
  St.

  
	
  Rancho Cordova,
  CA 95760

  	
   

  	
  Omaha, NE 68112

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
   

  
	
  NEC Solutions
  (America), Inc.

  	
   

  	
   

  



 


9





















 


	
  Digital Cinema
  Division

  	
   

  	
   

  
	
  4111 West
  Alameda Avenue, Suite 412

  	
   

  	
   

  
	
  Burbank, CA
  91505

  	
   

  	
   

  



 


22.3         Waiver.  Either party’s
failure to enforce any provision of this Agreement will not be deemed a waiver
of that provision or of the right to enforce it in the future.


 


22.4         Force Majeure.  Neither
party shall be liable for its failure to perform hereunder due to “Force
Majeure” conditions which shall be defined as contingencies beyond a party’s
reasonable control, including, but not limited to, weather conditions, strikes,
riots, wars, fire, acts of God, or acts in compliance with any law, order
proclamation, regulation, ordinance, demand or requirement of any governmental
agency. A party whose performance is prevented, restricted or interfered with
by reason of a Force Majeure condition shall be excused from such performance
to the extent of such Force Majeure condition so long as such party provides
the other party with prompt written notice describing the Force Majeure
condition and immediately continues performance whenever and to the extent such
causes are removed.


 


22.5         Headings and Interpretation. 
The paragraph headings contained herein are for reference only and shall
not be considered as substantive parts of this Agreement.  The use of a singular or plural form shall include
the other form, and the use of a masculine, feminine or neuter gender shall
include the other genders.


 


22.6         Severability.  In the
event that any of the provisions of this Agreement or the application of any
such provisions to the parties hereto with respect to their obligations
hereunder shall be held by a tribunal of competent jurisdiction to be unlawful
or unenforceable, the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected, impaired, or invalidated in
any manner.


 


22.7         Entire Agreement. 
This Agreement supersedes any and all other agreements, either oral or
written, between the parties hereto with respect to the subject matter hereof,
and contains all of the covenants and agreements between the parties with
respect to said subject matter.  Each
party to this Agreement acknowledges that no oral or written representations,
inducements, promises or agreements have been made which are not embodied
herein.  Except as otherwise provided in
this Agreement, this Agreement may not be amended, modified or supplemented,
except by a written instrument signed by both parties hereto.


 


22.8         Counterparts.  If this
Agreement has been executed in multiple counterparts, each of which shall be
deemed enforceable, without production of the others.


 


22.9         Authority.  If
RESELLER is a sole proprietorship, the person executing this Agreement
represents that he or she is the sole proprietor thereof.  If RESELLER is a partnership or corporation,
the person executing this Agreement represents that he or she is either a
general partner or a duly authorized corporate officer, as the case may be, and
that he or she has full authority to enter into this Agreement on behalf of
such partnership or corporation.


 


22.10       Audit.   RESELLER will
maintain (and provide to NEC upon request with reasonable advance notice)
relevant business and accounting records to support purchases made under this
Agreement for a period of time as required by local law, but not for less than
three (3) years following completion or termination of this Agreement.  All accounting records will be maintained in
accordance with generally accepted accounting principles.


 


22.11       Survival.  Any
provision contained in this Agreement that, by its nature, is intended to
survive the expiration or termination of this Agreement shall so survive,
including, but not limited to, Sections 9, and 17-20.


 


22.12       Order
of Precedence.  In the event of conflict between any of the
provisions of this Agreement, the Order of Precedence shall be as follows:


 


a)     Addendum “A”- Products


 


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b)    Master Reseller Agreement;


c)     Special Addenda (when applicable).


 


IN
WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the
Effective Date first set forth above.


 


	
  ACCEPTED BY:

  	
  NEC SOLUTIONS (AMERICA), INC.

  
	
   

  	
   

  
	
  Ballantyne of Omaha,
  Inc.

  	
  /s/ Kurt W. Schwenk

  
	
  RESELLER’s Full Legal
  Name

  	
  Authorized Signature

  
	
  /s/ John Wilmers

  	
  Kurt W. Schwenk

  
	
  Authorized Signature

  	
  Print Name

  
	
  John Wilmers

  	
  General Manager DCD

  
	
  Print Name

  	
  Title

  
	
  President & CEO

  	
  May 25, 2005

  
	
  Title

  	
  Date

  
	
  May 23, 2005

  	
   

  
	
  Date

  	
   

  



 


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