exv10w9



 





Exhibit
10.9


EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT




     THIS EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT (the “Agreement”) is entered into on
October 29, 2004, by and between ProLink/ParView, LLC, a Delaware limited liability company
(“Supplier”), and Elumina Iberica SA; a company formed and registered the country of Spain
(“Distributor”).



RECITALS




     A. Supplier develops, manufactures, markets and sells certain golf tournament management
hardware and software products designed to locate a golf cart’s position relative to the applicable
pin position and provide the golf course with course management systems for use on individual golf
courses, which products are sold under the ParView name and are made up of selected hardware as set
forth on Exhibit A and software (the “Product”). In addition products covered under section
2.6 of this agreement will also be identified as developed and new schedules regarding pricing and
material will be added as created.



     B. The parties desire to enter into this Agreement to establish a distribution arrangement
through Product in United Kingdom, Europe, United Arab Emirates, (the “Territory”) on the terms and
conditions set forth in this Agreement.



     C. Supplier licenses certain patents used in connection with the Product as more fully set
forth on Exhibit B to this Agreement (the “Patents”).



     D. Supplier wishes to sublicense the Patents to Distributor for use in connection with the
marketing, sales and distribution of the Product pursuant to this Agreement (the “Licensed
Services”), and Supplier desires to grant Distributor a non-exclusive sublicense to use the Patents
on the terms and conditions set forth herein.



     NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:



ARTICLE 1

DEFINITIONS




     As used in this Agreement, the following words and phrases shall have the following
meanings:



     1.1 “Course Equivalent” means a golf Course or the equivalent of a golf
Course, each of which must have at least 30 golf carts.



     1 .2 “Course(s)” means golf course(s) in the Territory.



     1.3 “Distributor” has the meaning given to it in the introductory paragraph of this Agreement.



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1.4 left Blank.



1.5 “Initial Term” means 3-year period beginning on the date of this Agreement and ending on the
third anniversary, unless sooner terminated as provided in this Agreement.



1.6 “Intellectual Property” means all data collection associated with the Product, the Patents, the
Trademark and Supplier’s software, designs, business solutions and back-office application “rapid
server” used with the Product.



1.7 “Loaded Manufacturing Cost” means all costs of Supplier, including manufacturing overhead
costs.



1.8 “Patents” has the meaning given to it in Recital C.



1.9 “Product” has the meaning given to it in Recital A.



1.10 “Renewal Term” has the meaning given that term in Section 9.1.



1.11 “RF Cards” means the radio card used in the Product, which is currently a
900 MHz radio (although is subject to change during the Term).



1.12 “Supplier” has the meaning given to it in the introductory paragraph of this Agreement.



1.13 “Term” means the Initial Term plus any Renewal Terms.



1.14 “Territory” has the meaning given to it in Recital B.



1.15 “Trademark” means ProLink/ParView.



1.16 “Unit(s)” means the entire Product that is placed on one golf cart.



1.17 “VDU” means the visual display computer unit of the Product, which is
installed in the roof of the golf cart.




ARTICLE 2

MASTER DISTRIBUTOR APPOINTMENT



2.1 Grant of Exclusive Right. Subject to the further provisions of this Agreement, Supplier
grants Distributor the exclusive right to market, sell, distribute and service the Product in the
Territory during the Term. Distributor may not engage sub-distributors to market, distribute, sell
or distribute the Product without the prior written consent of Supplier, which consent may be
withheld in Supplier’s sole discretion. Further, Distributor shall not permit the Courses to
service the Product.



2.2 Minimum Distribution Requirements. The parties agree that Distributor shall retain the
exclusive right and license to market, sell and distribute the Product in the Territory during the
Term provided that the minimum threshold requirements set forth in





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this Section 2.2 are met. If such minimum threshold requirements are not met, Supplier ma)~, in its
sole discretion, retain other distributors to market, sell and distribute the Product in the
Territory and/or terminate this Agreement. In such case these distributors and Supplier may not
contact or compete in the existing Distributor’s customer base.




     (a) During the first 12 months (beginning January 1 2005) of the Term of this
Agreement, Distributor shall install the Product on at least twenty five (25) Course Equivalents in
the territory;



     (b) During the second 12 months of the Term of this Agreement, Distributor shall install the
Product on at least thirty (30) Course Equivalents in the Territory



     (c) During the third 12 months of the Term of this Agreement, Distributor shall install the
Product on at least thirty —six (36) Course Equivalents in the Territory; and



     (d) If the parties extend this Agreement beyond the Term in accordance with Article 9, then
the parties shall determine the minimum thresholds that are required each year in the additional
Term(s); provided, however, that if the parties can not agree to the minimum thresholds within 90
days of the expiration of the applicable Term, either party has the right to terminate this
Agreement.


Agreement to Provide Product Exclusively. In exchange for the sole rights granted to it
pursuant to this Agreement, Distributor agrees that it shall not market, sell or distribute any
product without the prior written consent of Supplier (which consent may be withheld in Supplier’s
sole discretion), that is competitive with the Product (as defined in recital A and section 2.6 of
this agreement) in the Territory during the Term, including but not limited to any portable or
cart-mounted global positioning systems used in connection with golf.




     2.3 Title to Product. The title and ownership of the Product (excluding any
Intellectual Property) shall pass to Distributor upon payment and shipment of the Product.



     2.4 Reporting Requirements~ Audit Rights. During the Term, Distributor agrees to
provide to Supplier quarterly reports detailing Distributor’s marketing, sales and distribution
efforts and results in the Territory. Such reports shall include the number of Units installed to
date the current inventory by Territory, the repair parts in
inventory, forecasts of
prospective Courses, number of golf carts upon which the Units are installed, including the
manufacturer and make of such carts, and current warranty issues on the Product. Distributor shall
have the right, upon reasonable notice to Supplier and during normal business hours, to (a) examine
the books and records of Supplier related to its obligations under this Agreement only to verify
the accuracy of information contained in the reports,




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2.5 Right to Use Additional Applications. The parties acknowledge that Supplier is in the
process of developing new applications inclusive of advertising model for the Product. If Supplier
finalizes such applications including the advertising model, it shall provide Distributor with the
option to sell such applications inclusive of advertising model in its marketing efforts in the
Territory during the Term on terms and conditions to be agreed upon by the parties. There will be
no additional inventory or stocking requires or licensing fee for such applications.



2.7 Rights to the Use of the ProLink/ParView Branding




     The Supplier recognizes the need for the Distributor to market the products of the Supplier
and as such grants the Distributor full and unfettered rights to use the brands and collateral of
the Supplier subject to the terms of sections 4.4, 4.5. and 4.6 of this agreement. The full cost of
any brand or name change of the Supplier will be carried by the Supplier.



ARTICLE 3

INVENTORY, REPLACEMENT PARTS AND SERVICE




3.1 Inventory Requirement. The parties agree that Distributor shall have an initial
inventory of 60 Units, which shall be shipped to Distributor as follows: 60 Units by December 31,
2004. Upon the delivery of 60 Units by January 30, 2005, Distributor shall at all times thereafter
during the Term maintain an inventory of 60 Units These requirements may change based on mutual
agreement.



3.2 Replacement Parts. Distributor shall have the right to purchase replacement Rh Cards at
cost to Supplier plus 5%. Distributor shall purchase all other replacement parts at the
manufacturer’s price plus 35%. Distributor agrees that it shall only use replacement parts from
Supplier in servicing the Product.



3.3 Service Requirements. In connection with the rights granted to it pursuant to this
Agreement, Distributor shall provide maintenance services and all other necessary services to the
Product installed on the Courses in the Territory. Distributor shall respond timely (within 24
hours of a service call from a Course) to a request to service the Product. If Distributor is
unable to service the Product, it shall immediately contact Supplier’s customer service
representatives to seek assistance on the correct procedure to repair the Product. In connection
with providing the service required by this Agreement, Distributor agrees that it shall not modify
the Product in any way without the prior written consent of Supplier. Additionally, Distributor
agrees that in connection with servicing the Product, it will follow Supplier’s service,
installation and troubleshooting procedures, which are set forth on Exhibit C. If Supplier
is required to repair any Product (other than as set forth below in Section 3.4) installed by
Distributor, Distributor shall reimburse Supplier for all costs affiliated with such repairs,
including travel expenses, labor, time and parts.



     Limited Warranty. Supplier will warrant the VDU’s for one year after shipment, and if
Distributor experiences any service issues with the VDU’s during such period of time, it



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may return the VDU to Supplier’s United States factory and Supplier will repair or replace
such VDU. Supplier shall pay all shipping costs associated with the shipment of VDU’s during the
warranty period. All sell through parts will carry the manufacture warranty as provided.
Notwithstanding the foregoing, the limited warranty set forth in this Section 3.4 shall
be immediately void if Distributor uses any replacement parts other than those provided by Supplier
on the Product. Any product found to be defective within 4 weeks of delivery will be
replaced by Supplier at no cost (including shipping). Supplier represents and warrants that the VDU
are manufactured in a way that will not cause catastrophic failures due to changes in daily weather
environments. If a catastrophic failure occurs due to swings in weather conditions then the
supplier will extend its warranty to repair such failures subject to adjustments for normal
wear and tear and depreciation. This limited extension of the warranty will only be applicable if
the Distributor and the course owners take protective measures to follow specific cold weather
procedures, standard operating procedures (per schedule C) limit the
damage and promptly
notify the supplier of such failures.




ARTICLE 4

LICENSE




     4.1 License. Supplier hereby grants to Distributor a non-exclusive license to the
Intellectual Property during the Term for use in connection with the marketing, sales, distribution
and repair of the Product in connection with this Agreement. All enhancements to the Intellectual
Property developed or acquired by Supplier shall be deemed part of the Intellectual Property and
subject to the terms and conditions in this Agreement. Distributor agrees that it will sell the
Product under the ~ParView” brand.



     4.2 License Fee. In consideration of the license granted in this Agreement,
Distributor agrees to pay Supplier (excluding Alicante order) a one-time license fee equal to $2500
per installation of a Course, which fee shall be payable upon the shipping of a course.



     4.3 Confidentiality. Distributor acknowledges that the Intellectual Property
includes or embodies certain confidential information of Supplier relating to Supplier’s business,
plans, customers, services, technology, trade secrets, products or other information held in
confidence by Supplier (‘~Confidential Information”). Confidential Information will include all
information in tangible or intangible form that is marked or designated as confidential or that,
under the circumstances of its disclosure, should be considered confidential. Distributor agrees
that it will not use in any way except as expressly permitted by, or required to achieve the
purposes of, this Agreement, nor disclose to any third party (except as required by law)
the Confidential Information and will take reasonable precautions to protect the
confidentiality of such information, which precautions, in any event, will be at least as stringent
as it takes to protect its own Confidential Information.



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4.4 Use of Intellectual Property. Distributor will use the Trademarks in the form and
the manner designated in writing by Supplier as Supplier may establish from time to time.
Distributor shall attribute ownership of the Trademarks to Supplier, in a form approved by
Supplier, in connection with Distributor’s use of the Trademarks on any web site or in any printed
materials distributed publicly. The quality of services provided by Distributor for which the
Trademarks are associated must equal or exceed the quality of services currently provided by
Supplier and meet other standards set by Supplier from time to time. Upon reasonable request,
Supplier may inspect Distributors business operations for which the Trademarks are used for
conformance to Supplier’s standard of quality. If Distributor fails to meet Supplier’s requirements
for use of the Trademarks or uses one or more of the Trademarks improperly, Supplier will provide
written notice to Distributor and may terminate the license with respect to such mark unless
Distributor cures the deficiency within 30 days of receipt of such notice. Any goodwill arising as
a result of the use by Distributor of the Trademarks shall inure to the benefit of Supplier.
Supplier agrees that if it makes changes the brand identity it will assist the distributor in re
branding the product in the market. This assistance will include reprinting of collateral material,
sales material and the like. Supplier represents that it has no knowledge of any patent
infringement that its product is committing against any patent holder. The supplier acknowledges
that it has been noticed by GPS Industries of an alleged patent infringement on the DGPS patent
claimed to be owned by GPSI. The Supplier aggress it will defend, indemnify and hold Elumina
harmless from and against any claim to the extent it asserts that a product supplied by or for PPL
to Elumina or a method performed by such a product infringes a valid claim or claims of a patent
owned by GSPI. If, as a result of any claim of infringement, damages are awarded against
you for the use of our products or the methods they are built to perform, we will pay those
damages. If an injunction is issued that precludes you from using our product, we will take the
product back and either render it non-infringing, provide you with a non-infringing replacement
product, or return the payment you have made to us or our distributor or dealer for that product
less a reasonable amount for the prior use you have made of it.



     For our indemnification to be effective, the distributor must do the following; l) give
Supplier prompt written notice and a copy of the claim 2) give Supplier written authority to
appoint legal counsel paid by PPL to answer and defend the claim. Distributor may participate
through counsel of your choice at your expense, but we would require a co-counsel agreement with
PPL’s counsel being lead counsel. 3) Give Supplier prompt and reasonable assistance, at our
expense, when requested from you for defense of the claim.



4.5 Protection of Intellectual Property. Distributor agrees that it will not
register the Intellectual Property in the Territory or take any actions that would adversely affect
Supplier’s rights in the Intellectual Property.




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4.6 Ownership of Intellectual Property. The Intellectual Property shall remain the
exclusive property of Supplier. Distributor shall have not rights in or to the Intellectual
Property except as specifically granted in this Agreement.




ARTICLE 5

PRICES AND PAYMENT



5.1 Price. The price for the Product initially shall be as indicated on
Exhibit



D. Prices quoted exclude taxes, shipping and insurance charges. Supplier may change the
Product prices set forth on Exhibit D from time on at least 30 days advance notice to
Distributor.



5.2 Payment Terms. Each time Distributor places an order, it shall submit to Supplier a
deposit by Federal wire transfer of immediately available funds equal to 33% of the total price for
such order. The balance in full will he due in full 2 days price to shipment of the order by
Federal wire transfer in immediate available funds Distributor agrees to review
terms quarterly with the objective of replacing cash deposits with acceptable international
letters of credit with terms and conditions acceptable to distributor. Distributor agrees that if
they have not shipped an order within 90 days from receipt of mapping data from distributor the
terms on that order only shall change to net 30 days from date of shipment. Concurrent with the
signing of this agreement distributor acknowledges a receipt of a 13-course order entitled
“Alicante”. The payment terms shall be as follows for that order 25% of the equipment due
concurrently with the order of the equipment. 50% due 2 days before shipment. The
remaining balance (25%) and any installations cost due in full upon acceptance of distributor.
Acceptance shall be deemed completed on the earlier of 10 days after substantially all the work has
been completed and system substantially in operation or signed acceptance by Distributor




ARTICLE 6

INSPECTION BY DISTRIBUTOR



During the 30 days following Distributor’s receipt of each shipment of Product ordered
pursuant to this Agreement, Distributor shall have the right to inspect the Product to ascertain
whether it conforms in number and type to Distributor’s product order, or whether there are obvious
defects present. If the Product is found not to conform, Distributor shall notify Supplier in
writing within such 30-day period. Failure to so notify Supplier will be deemed acceptance of the
Product received.




ARTICLE 7

WARRANTIES AND LIMITATIONS OF LIABILITY



7.1 Intellectual Property Rights. Supplier warrants to Distributor that Supplier owns
or has rights to the Product, including any intellectual property rights associated therewith,
adequate to enable Supplier to perform its obligations, to authorize the distribution of the
Product by Distributor.







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7.2 Function of Product. Supplier warrants to Distributor that the Product will
operate in substantial compliance with the applicable functional description of the Products as
contained in Supplier’s marketing literature for the Product.



7.3 Adequate Insurance. Supplier warrants to Distributor that it has adequate
general liability insurance, and agrees to designate Distributor as an additional insured on such
insurance if Distributor so requests. Distributor warrants to Supplier that it has adequate general
liability insurance, and agrees to designate Supplier as an additional insured on such insurance if
Supplier so requests.




ARTICLE 8

INDEMNIFICATION



8.1 Indemnification by Supplier. Supplier indemnifies and agrees to hold Distributor
harmless from and against any and all claims, demands or actions and costs, liabilities, or losses
arising out of (a) any actual or alleged death or injury to any person or damage to any tangible
property resulting or claimed to result wholly from (i) any actual or alleged defect in the
Product, or (ii) any statement or misstatement contained in the documentation and marketing
materials provided by Supplier; or (b) arising out of any breach of this Agreement by Supplier.



8.2 Indemnification by Distributor. Distributor indemnifies and agrees to hold Supplier
harmless from and against any and all claims, demands, or actions and any cost, liabilities, or
losses arising out of (a) any statements or representations made by Distributor or Distributor’s
employees or agents with respect to the Product, except for statements that are direct quotations
of any documentation and marketing materials provided by Supplier to Distributor for use in
connection with the Product; or (b) any breach of this Agreement by Distributor, including but not
limited to Distributor’s failure to make any payments (including the license fee) to Supplier.



8.3 General Terms of Indemnification. The foregoing indemnities are in addition
to any rights otherwise under this Agreement, but shall be expressly contingent on the party
seeking indemnity (a) notifying the indemnifying party in writing of any such claim, demand,
action, or liability; (b) cooperating in the defense or settlement thereof; and (c) allowing the
indemnifying party to control the defense or settlement of the same.




ARTICLE 9

TERM AND TERMINATION



9.1 Term. This Agreement shall extend for the Initial Term. Upon the expiration of the
Initial Term, this Agreement shall automatically be extended for an additional three years (the
~Renewal Term”) provided that the minimum distribution requirements set forth in Section 2.2
are met.



9.2 Default. Subject to Section 13.6, the occurrence of any one of the following
items shall constitute a material default under this Agreement: (a) a failure to provide the
Product by Supplier to Distributor pursuant to this Agreement; (b) Supplier






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selling or distributing the Product in violation of this Agreement; (c) a failure of
Distributor to pay for purchased Product as agreed to in this Agreement; or (d) a failure of
Distributor to purchase the minimum amounts of Products set forth on Exhibit D. In the
event Supplier commits a material default of this Agreement pursuant to clause (a) or (b) above,
Distributor shall provide Supplier with not less than a 90-day written notice to cure. In the event
Distributor commits a material default of this Agreement pursuant to clause (c) or (d above,
Supplier shall provide Distributor with not less than a 10-day written notice to cure. In the event
that the default is not cured within the aforementioned periods, the non-defaulting party may
declare the other party in breach. In the event of a declaration of breach, the non-breaching party
may either (1) seek injunctive relief to enforce the terms of this Agreement; or (2) may declare
this Agreement terminated and sue for damages; or (3) exercise any other rights or
remedies available at law or in equity; or (4) with respect to a breach described in
clause (4), in addition to the other rights and remedies described in this Section 9.2, Supplier
may declare that this entire Agreement is thereafter non-exclusive.



     9.3 Termination upon Change in Ownership. Distributor agrees that if Supplier becomes
a publicly-held corporation, either through an initial public offering or a business combination
with a publicly-held corporation, that Supplier shall have the option to terminate this Agreement.
Upon the event of a termination in accordance with this Section 8.3, Supplier shall pay
Distributor the fair market value for purchasing the rights granted hereunder for the duration of
the Initial Term and the extended term. If the parties cannot agree on such fair market value, they
shall each hire an appraiser to calculate the fair market value. If the two appraisers cannot agree
on the value, such appraisers shall retain a third appraiser to calculate the fair market value,
which determination shall be binding on the parties. The parties shall share equally in the cost of
such appraisals.




ARTICLE 10

COMPLIANCE WITH LAWS



     10.1 Compliance by Distributor. Distributor agrees to comply with all applicable
federal, state, regional and local laws and regulations in performing its obligations under the
terms and conditions of this Agreement and its dealings with Courses concerning the Product,
including but not limited to compliance with all laws and regulations governing radio frequency.



     10.2 Compliance by Supplier. Supplier agrees to comply with all applicable federal,
state, regional and local laws and regulations in performing its obligations under the terms and
conditions of this Agreement.




ARTICLE 11

OBLIGATIONS OF DISTRIBUTOR



     11.1 Maximizing Sales. Distributor shall use its best efforts to maximize the
marketing, sales and distribution of the Product. Distributor shall also use its best efforts












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to conduct business in a manner that reflects favorably on the goodwill and reputation of
Supplier.




     11.2 Training. Distributor shall train, develop and maintain customer service and
sales support for the Product pursuant to the terms of Distributor’s approved business plan.



     11.3 Licenses. Distributor shall have in effect all licenses, permits and
authorizations required and necessary for the performance of its obligations covered by this
Agreement.



     11.4 Taxes Fees. Distributor shall pay all sales taxes, license fees and all other
fees in the Territory associated with its performance of its obligations under this Agreement.
Distributor shall pay all fees associated with shipping the Product either to Distributor or
Courses.



     11.5 Practices. Distributor shall avoid deceptive, misleading or unethical practices
detrimental to Supplier, the Product or the public, including but not limited to making
representations, warranties or guarantees to Courses or to the golf industry with respect to the
specifications, features or capabilities of the Product that are materially inconsistent with the
literature distributed by Supplier. Distributor shall make no warranty, guaranty or representation,
whether written or oral, on Supplier’s behalf.



ARTICLE 12

OBLIGATIONS OF SUPPLIER




     12.1 Compliance with Shipping Requests. Supplier shall use its best efforts to
obtain the best available shipping dates and to ship the Product in accordance with Distributor’s
reasonable shipping requests (at Distributor’s cost).



     12.2 Collateral Sales Material. Supplier shall provide, at its cost,
standard collateral sales material in the form of brochures and in-service materials in an adequate
amount as is reasonable for Distributor to meet its obligations under this Agreement.



     12.3 References. Supplier shall refer all leads, inquiries or request for the Product
in the Territory to Distributor and not retain any other party to market, sell or distribute the
Product within the Territory except as permitted under this Agreement.



     12.4 Licenses. Supplier shall have in effect all licenses, permits and authorizations
from all government agencies within the Territory necessary to the performance of its obligations.



     12.5 Manufacturing Capabilities. Supplier will have the manufacturing and shipping
capability to make enough units of the Product covered by this Agreement for Distributor to reach
its sales obligations.



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ARTICLE 13

MISCELLANEOUS




     13.1 Independent Contractor. Each of the parties is an independent contractor under
this Agreement, and nothing in this Agreement shall be construed to
create a partnership, joint
venture, or agency relationship between the parties. Without the prior written authorization of the
other party, no party shall have any authority to enter into agreements of any kind on behalf of
the other party nor shall a party have any power or authority to bind or obligate the other party
in any manner to any third party.



     13.2 Authority. Each party represents and warrants that it has full power and
authority to undertake the obligations set forth in this Agreement and that it has not entered into
any other agreement nor will it enter into any other agreements that would render it incapable of
satisfactorily performing its obligations pursuant to this Agreement.



     13.3 Severability. If any provision of this Agreement shall be declared to be invalid
or unenforceable, in whole or in part, such invalidity or unenforceability shall not affect the
remaining provisions hereof which shall remain in full force and effect.



     13.4 Notices. All notices and other communications required or permitted to be given
under this Agreement shall be in writing and shall be delivered by hand, overnight courier,
facsimile or U.S. mail, addressed as follows:





If
to Supplier:

ProLinklParView, LLC

7970 South Kyrene Road

Tempe, Arizona 85284

Attention: President

Telephone: (480) 961-8800

Facsimile: (480) 96 1-880

Scottsdale, Arizona 85260





If to Distributor:





Elumina Iberica SA

Avenidadel Puerto 310. 1-3

46024 Valencia

Attention: Kevin Clarke

Facsimile: 34-963-301-138



Notice shall be deemed given and effective the day received if sent by hand delivery or U.S. mail,
one business day after being sent by overnight courier, subject to signature verification, and on
the date sent, if sent by facsimile during normal business hours, and otherwise on the next
business day. Any party may change its address or other





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information for notice by notifying the other party of such change in accordance with this
Section 13.4.




     13.5 Governing Law. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by and determined exclusively
in accordance with the laws of the State of Arizona, without application of its principles of
conflicts of law. By execution and delivery of this Agreement, with respect to any dispute, each of
the parties knowingly, voluntarily and irrevocably: (a) waives any immunity or objection, including
any objection to personal jurisdiction, foreign sovereign immunity, the laying of venue or based on
the grounds of forum non convenience, which it may have from or to the bringing of the dispute in
such jurisdiction; (b); waives any right to trial by jury; (d) agrees that any such dispute will be
decided by binding arbitration in Phoenix, Arizona; (d) understands that it is giving up valuable
legal rights under this provision, including the right to trial by jury, and that it voluntarily
and knowingly waives those rights; and (e) agrees that the other party to this Agreement may file
an original counterpart or a copy of this Section 13.5 with any arbitrator as written evidence of
the consents, waivers and agreements of the parties set forth in this Section



     13.6 Arbitration. The parties each hereby irrevocably consent to arbitration to be
held in Phoenix, Arizona (or such other venue as may be agreed by all parties), in
accordance with the IJNCITRAL Model Law on International Commercial Arbitration, for the
resolution of all disputes arising under this Agreement, or for enforcement hereof. Any such
arbitration shall be conducted in English by three arbitrators, of whom one shall be selected by
each party within 20 days after a notice of demand for arbitration is delivered by a party to the
other and the third shall be selected by the first two arbitrators within 10 days after the
selection of the first two arbitrators. The arbitrators shall use their best efforts to conclude
such arbitration and issue a decision within 30 days after the selection of the arbitration panel.
The decision of the arbitrators shall be final and binding upon the parties, and judgment in
accordance with the decision will be enforced in accordance with the United Nations Convention on
Recognition & Enforcement of Foreign Arbitral Awards.



     13.7 No Waiver. Neither party shall by mere lapse of time, without giving notice or
taking other action hereunder, be deemed to have waived any breach by the other party of any of the
provisions of this Agreement. Further, the waiver by either party of a particular breach of this
Agreement by the other shall not be construed as or constitute a continuing waiver of such breach
or of other breaches of the same or other provisions of this Agreement.



     13.8 Force Majeure. Except for obligations of Distributor respecting (a) protection of
Supplier’s proprietary rights in the Products and (b) payment of invoices for Products, neither
party shall be in default if any delay or failure to perform any obligation hereunder is caused
solely by events beyond such party’s control, including an act of God, epidemic, landslide,
lightning, earthquake, fire, explosion, storm, flood or similar occurrence, an act of public enemy,
terrorists, war, blockage, insurrection, riot, general arrest or restraint of government and
people, strike, lockout, industrial disturbance, power




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outages, unavailability of fuel, civil disturbance or disobedience, sabotage or similar
occurrence. it is understood that the settlement of strikes, lockouts or industrial disturbances
shall be entirely within the sole discretion of the party having the difficulty. Any party claiming
the benefit of such excuse shall be entitled to do so only to the extent that such party has
diligently acted to cure the cause and consequence of such event.



13.9 Complete Agreement~ Amendment. The parties acknowledge that this Agreement
is the complete and exclusive statement of agreement respecting the subject matter hereto and
supersedes all proposals (oral or written), understandings, representations, conditions, and other
communications between the parties relating hereto. This Agreement may be amended only by a
subsequent writing that specifically refers to this Agreement and is signed by parties, and no
other act, document, purchase order, usage, or custom shall be deemed to amend this Agreement.



13.10 Assignment. This Agreement may not be assigned by either party without the prior
written consent of the other party, which consent may not be unreasonably withheld.




     WHEREBY, the parties have caused this Agreement to be executed by their duly authorized
officers.



	 	 	 	 	 
	 	ProLink/ParView, LLC

 	 
	 	By:  	/s/ Lawrence D Bain
 	 
	 	 	Lawrence D. Bain, President 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	     /s/ Ian Bailey
 	 
	 	 	Ian Bailey, Director 	 
	 	 	 	 



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