exv10w46



 





Exhibit 10.46




SECOND AMENDED AND RESTATED

EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT




     THIS SECOND AMENDED AND RESTATED EXCLUSIVE LICENSING AND DISTRIBUTION AGREEMENT (the
“Agreement”) is entered into as of April 9, 2007 (the “Effective Date”), by and between ProLink
Solutions, LLC, a Delaware limited liability company (“Supplier”), and Elumina Iberica, S.A., a
company formed and existing under the laws of Spain (“Distributor”).



RECITALS




     A. Supplier develops, manufactures, markets and sells certain golf course management hardware
and software products for use on individual golf courses, which products are sold under the
ProLink, GameStar and ProStar name and are made up of selected hardware as set forth on Exhibit
A and software (the “Product”).



     B. The parties desire to amend and restate that certain Amended and Restated Exclusive
Licensing and Distribution Agreement dated as of May 8, 2006 (the “Former Agreement”) in order to
amend the exclusive distributor arrangement of the Distributor with respect to the Product in the
territories as set forth on Exhibit B (the “Territory”) and further amend the terms and
conditions set forth in the Former Agreement.



     C. Supplier licenses certain patents used in connection with the Product as more fully set
forth on Exhibit C 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 “Castastrophic Failure” means failure of more than 25% of the Units placed on any one
Course within the Territory that is not cured within 30 days of written notice to Supplier by
Distributor.



     1.2 In China and Singapore a “Course Equivalent” means a Course or the equivalent of a Course,
each of which must have at least 72 golf carts. In all other



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locations within the Territory, Course Equivalent means a Course or the Equivalent of a
Course, each of which must have at least 30 golf carts.



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



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



     1.5 “Earnest Deposit” has the meaning given that term in Section 5.2.



     1.6 “Initial Term” means 5-year period beginning on the ”Effective Date”and ending on the
fifth anniversary thereof, unless sooner terminated as provided in this Agreement.



     1.7 “Intellectual Property” means all data collection associated with the Product, the
Patents, the Trademark and Supplier’s software, designs and business solutions used with the
Product.



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



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



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



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



     1.12 “RF Cards” means the radio card used in the Product.



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



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



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



     1.16 “Trademark” means ProLink, ProLink Solutions, ProLink Holdings, ProStar, GameStar,
Pay-for-Play or any derivations thereof.



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



     1.18 “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



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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 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 this Section 2.2 are
met. If such minimum threshold requirements are not met, Supplier may, in its sole discretion,
retain other distributors to market, sell and distribute the Product in the Territory and/or
terminate this Agreement.



          (a) During the period from May 1, 2006 through April 30, 2007, Distributor shall install the
Product on at least the greater of Twenty-one (21) Course Equivalents or 1,500 Units in the
Territory;




          (b) During the period from May 1, 2007 until expiration of the Initial Term, Distributor shall
install the Product on at least the greater of Forty (40) Course Equivalents or 2,000 Units in the
Territory;




          (c) During any Renewal Term, Supplier and Distributor shall agree in writing as to minimum
requirement for the Renewal Term; 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 cannot agree to the minimum thresholds within 90
days of the expiration of the applicable Term, either party has the right to terminate this
Agreement.




     2.3 Agreement to Provide Product Exclusively. In exchange for the 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 any product sold by Supplier during the Term, including
but not limited to any portable or cart-mounted global positioning systems used in connection with
golf. To the extent that Distributor wishes to sell any GPS golf related product, Supplier must
receive the written consent of Supplier, which consent may be withdrawn at any time that Supplier
begins to carry a competitive product.



     2.4 Title to Product. The title and ownership of the Product (excluding any
Intellectual Property) shall pass to Distributor upon shipment of the Product. Distributor bears
all risk of loss following passing of title at the Supplier’s point of manufacture.



     2.5 Reporting Requirements; Audit Rights. During the Term, Distributor agrees to
provide to Supplier monthly 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,



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including the manufacturer and make of such carts, and current warranty issues on the Product.
Supplier shall have the right, upon reasonable notice to Distributor and during normal business
hours, to (a) audit the books and records of Distributor related to its obligations under this
Agreement to verify the information contained in the reports, and (b) perform physical inspections
of Distributor’s physical locations to verify the information contained in the reports.



     2.6 Cooperative Advertising. The parties acknowledge that both Supplier and
Distributor are in the process of developing or have developed advertising models for the Product.
The parties agree to work in a cooperative manner in such advertising efforts to include joint
efforts to develop global advertising clients, sharing of advertising customer contacts and
introductions to same and development of consistent advertising client messages.



     2.7 Rights to the Use of the ProLink Branding. The Supplier recognizes the need for
the Distributor to market the Products of the Supplier and, as such, grants the Distributor limited
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 by the Supplier will be
carried by the Supplier.



ARTICLE 3

INVENTORY, REPLACEMENT PARTS AND SERVICE




     3.1 Inventory Requirement. Distributor shall at all times during the Term maintain an
inventory of Units satisfactory to meet its obligations to its customers, in Distributor’s
commercially reasonable judgment.



     3.2 Replacement Parts. Distributor shall have the right to purchase replacement RF
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 use only parts from Supplier in
servicing and installation of the Product or parts approved and properly licensed by supplier



     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 D. If
Supplier is required to repair any Product (other than as set forth below in Section 3.4) installed
by Distributor or install



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Product on behalf of Distributor, Distributor shall reimburse Supplier for all costs
affiliated with such repairs, including travel expenses, labor, time and parts.



     3.4 Limited Warranty. Supplier will provide a limited warranty on the VDU’s for one
year after shipment (the “Warranty Term”), and if Distributor experiences any manufacturing-related
service issues with the VDU’s during such period of time, it may return the VDU to Supplier’s
United States factory and Supplier will repair or replace such VDU. Each party shall pay its own
shipping costs associated with the shipment of VDU’s. 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 or if the Distributor fails
to follow Supplier’s service, installation and troubleshooting procedures as set forth on
Exhibit D. 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 its VDU’s 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 daily weather conditions then the
Supplier will extend its warranty to repair such failures subject to adjustment 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, 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 “ProLink” brand.



     4.2 Confidentiality.



          (a) 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




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precautions, in any event, will be at least as stringent as it takes to protect its own
Confidential Information.




          (b) Distributor acknowledges that the Supplier is a public reporting company in the United
States and that Distributor will be, at most times, in possession of material, nonpublic
information (as those terms are defined in the Securities Exchange Act of 1934, as amended, and the
rules promulgated thereunder) and that as such, it will be forbidden from trading in the securities
of the Supplier when in possession of such information. Distributor agrees to inform the Supplier
at any time that it or its affiliates seek to trade in the securities of the Supplier and agrees to
refrain from trading if Supplier, upon the advice of counsel, informs the Distributor that it
cannot trade.




     4.3 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 Distributor’s 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 to the brand identity it will assist the
Distributor in rebranding the Product in the Territory. This assistance will include reprinting of
collateral material, sales material and the like.



     4.4 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.



     4.5 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.



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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 E 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 20% of the total price
for such order (“Earnest Deposit”). The balance in full will be due and payable two (2) days prior
to shipment of the order by wire transfer in immediately available funds. Supplier agrees to
review terms quarterly with the objective of replacing cash deposits with acceptable international
letters of credit with term and conditions acceptable to Supplier. Supplier agrees that if it has
not shipped an order within 90 days from receipt of mapping data from Distributor the terms on that
order shall change to net 30 days from the date of shipment. The Payment terms contained in this
paragraph 5.2 may be modified on a case-by-case basis only in the sole discretion of the Supplier.
However, in no event will payment terms extend beyond net 45 days from the date of shipment.



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.



     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



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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.



          (a) 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




          (b) If, as a result of any claim of intellectual property infringement, damages are awarded
against Distributor for the use of the Products or the methods they are built to perform, Supplier
agrees to pay such damages. If an injunction is issued that precludes Distributor from using
Products, Supplier will repurchase the infringing Products or render such Product non-infringing,
provide Distributor with non-infringing Product, or return the payment that Distributor has made to
Supplier or dealer for that product less a reasonable amount for prior use Distributor has made of
the Product.




          (c) For indemnification to be effective, the Distributor must do the following: (1) give
Supplier prompt written notice and a copy of the claim, (2) give Supplier written authority to
appoint legal counsel, at Distributor’s sole cost and expense, to answer and defend the claim, and
(3) give Supplier prompt and reasonable assistance, at Distributor’s sole cost and expense, when
requested for defense of the claim. Distributor may participate in the defense of the claim
through counsel of its choosing at its sole cost and expense, however Supplier’s counsel would be
lead counsel and Distributor agrees that it would enter into a co-counsel agreement to that
effect.




     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



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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 (3) 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 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 E. 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 Article 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 /Right to Purchase. Distributor agrees that at any time after
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 9.3,
Supplier shall pay Distributor the fair market value for purchasing the rights granted hereunder
for the duration of the Initial 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



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Courses concerning the Product, including but not limited to compliance with all laws and
regulations governing radio frequency and the U.S Foreign Corrupt Practices Act.




     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 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.




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     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 warrants that it has the manufacturing and
shipping capability to make enough units of the Product covered by this Agreement to satisfy the
minimum distribution requirements under this Agreement. Further, Supplier will use all
commercially reasonable means to fulfill any demands in excess of the minimum distribution
requirements.



     12.6 Marketing Budget. Supplier agrees to continue to provide to Distributor an
annual marketing budget for 2007 of approximately 3% of total sales. In addition, for 2007,
Supplier agrees to provide an additional 1%, for a total of 4% of total sales in 2007. Finally,
for all sales in the first fiscal quarter of 2007 (January 1 through March 31, 2007), Supplier will
provide an additional 2% bonus budget for a total of 6% in the first quarter of 2007. This budget
will be submitted to Supplier for approval with the intention of growing and expanding the ProLink
brand in the Territory. Repayment of expenses will be submitted to ProLink on a quarterly basis
for review and payment. In order to receive payments under this paragraph 12.6, Distributor must be
in compliance, in all material respects, with the terms of this Agreement, including, but not
limited to, payment of all amounts owed under invoices within the terms provided by Supplier.
Amounts owed under this paragraph 12.6 may not be offset against invoice amounts owed. The annual
budget will be reviewed and approved each year for the following year by December 31.



     12.7 Guarantee. Distributor hereby guarantees payment in full of all Products shipped
to its affiliates pursuant to the written instructions of Distributor. If any payments under
invoices guaranteed by Distributor are not made within the terms provided on any such invoice,
Distributor agrees to unconditionally make any such payments in full within ten (10) days of notice
from Supplier.



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



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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:



ProLink Solutions, LLC

410 South Benson Lane

Chandler, Arizona 85224

Attention: President

Telephone: (480) 961-8800

Facsimile: (480) 961-8537



If to Distributor:



Elumina Iberica, S.A.

Avenida del Las Cortes Valencias

41, 1G

46015

Attention: Mark Smart

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 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 conveniens, 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




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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 13.5.




     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 UNCITRAL 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 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, including the Former Agreement. This Agreement
may be amended only by a subsequent writing that specifically refers to this Agreement and is
signed by both



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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.



[SIGNATURE PAGE FOLLOWS]




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



	 	 	 	 	 
	 

	 	ProLink Solutions, LLC	 	 
	 
	 	 	 	 
	 

	 	/s/ Lawrence D. Bain
 

Lawrence D. Bain, President
	 	 
	 
	 	 	 	 
	 

	 	Elumina Iberica, S.A.	 	 
	 
	 	 	 	 
	 

	 	/s/ Mark Smart
 

Mark Smart
	 	 






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Exhibit A

Selected Hardware




VDU Screen

Base Station

Radio Antenna

Operational Software

Mounting Hardware




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Exhibit B

Territories




ELUMINA EUROPE



Albania, Andorra, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus,
Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Holy See (Vatican City),
Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Macedonia, Malta,
Moldova, Monaco, Netherlands, Norway, Poland, Portugal, Romania, Russia, San Marino, Serbia and
Montenegro, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Ukraine, and the United Kingdom




ELUMINA MIDDLE EAST



Bahrain, Egypt, Gaza Strip, Iran, Iraq, Israel, Jordan, Kuwait, Levant, Lebanon, Oman, Qatar, Saudi
Arabia, Syria, United Arab Emirates, West Bank, and Yemen




ELUMINA AUSTRALASIA



Australia, New Zealand, China, Malaysia and Singapore, Thailand, and South Korea




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Exhibit C

Patents




	 	 	 	 	 	 	 
	Jurisdiction	 	Patent	 	Status	 	Expiration Date
	Australia
	 	667205	 	Issued	 	12/16/2011

	 
	 	 	 	 	 	(20 years from filing

	 
	 	 	 	 	 	 date – 12/16/91)
	Europe:
	 	 	 	 	 	 
	Austria
	 	EP 617794	 	Issued	 	 
	Eire
	 	EP 617794	 	Issued	 	 
	France
	 	EP 617794	 	Issued	 	 
	Great Britain
	 	EP 617794	 	Issued	 	12/16/2011

	Italy
	 	EP 617794	 	Issued	 	(20 years from priority 

	Netherlands
	 	EP 617794	 	Issued	 	given in country date 

	Portugal
	 	EP 617794	 	Issued	 	of origin)
	Sweden
	 	EP 617794	 	Issued	 	 
	Switzerland
	 	EP 617794	 	Issued	 	 
	Germany
	 	69228703.5	 	Issued	 	 
	Spain
	 	ES2132211	 	Issued	 	 






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Exhibit D

Supplier’s Procedures




[INTENTIONALLY OMITTED]




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Exhibit E

Pricing









ProLink Solutions, LLC

International Pricing

January 1, 2006




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Freewave 900mhz	 
	 	 	MDS Radios	 	 	Radios	 
	VDU
	 	$	2,500	 	 	$	2,070	 
	 
	 	 	 	 	 	 	 	 
	Screen Mounting Brackets
	 	$	320	 	 	$	320	 
	Bracket license fee (if not ordered)
	 	$	75	 	 	$	75	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Total per cart with roof/bracket
	 	$	2,820	 	 	$	2,390	 
	 
	 	 	 	 	 	 
	Total per cart with NO roof/bracket
	 	$	2,575	 	 	$	2,145	 
	 
	 	 	 	 	 	 	 	 
	Base Station (per course)
	 	$	5,000	 	 	$	5,870	 
	 
	 	 	 	 	 	 	 	 
	ProLink Software (per course under 100 cars)
	 	$	8,500	 	 	$	8,500	 
	ProLink Software (per course over 100 cars)
	 	$	2,500	 	 	$	2,500	 







			
	TERMS:	 	For all orders, 20% of the order price as a deposit before the order will
go into production; balance due paid in full two days before shipment
or secured by an irrevocable letter of credit





SCORECAST LICENSE: Billed in addition to the above charges





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