EXHIBIT 10.46
EXCLUSIVE INSTALLATION AND MAINTENANCE AGREEMENT
This Exclusive Installation and Maintenance Agreement, effective March 30, 1998
(the "Agreement"), is made by and between DATATEC SYSTEMS, INC. (hereinafter
"Datatec"), a New Jersey corporation whose principal office is located at 20C
Commerce Blvd., Totowa, NJ 07512, and NTN COMMUNICATIONS, INC., a Delaware
corporation (hereinafter "NTN"), whose principal office is located at The
Campus, 5966 La Place Court, Carlsbad, CA 92008.
RECITALS
NTN produces and broadcasts interactive entertainment programming to bars,
restaurants, hotels and other hospitality locations throughout the United States
(each a "Site" and collectively the "Sites") utilizing personal computers,
broadcast (one-way) satellite communications equipment, hand-held wireless
keyboard transmitters operating on the 49 megahertz frequency (the "49 Mg
Playmakers") and the 900 megahertz frequency (the "900 Mg Playmakers") and radio
frequency antennas and charging trays for the 45 Mg Playmakers and the 900 Mg
Playmakers (collectively, the "Equipment").
NTN has heretofore utilized numerous independent contractors to install and
maintain the 49 Mg Playmakers throughout the United States and desires to
contract with a single national service provider for the purpose of installing
and maintaining the Equipment.
Datatec has expertise in the installation and maintenance of computing and
telecommunications equipment located throughout the United States.
The parties hereto intend that Datatec shall become the exclusive national
service provider to NTN for the purpose of installing and maintaining the
Equipment at any and all Sites now existing or hereafter created utilizing the
Equipment during the term of this Agreement.
NOW, THEREFORE, in consideration of the within terms and conditions, the
parties hereto agree as follows:
1. APPOINTMENT NTN hereby appoints Datatec as its exclusive provider of
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installation and maintenance services for its Equipment located at Sites within
the United States for the term of this Agreement, and Datatec hereby accepts
such appointment. The specific services to be provided by Datatec hereunder (the
"Services") and the fees therefor are more particularly set forth in the Work
Assignment Schedule annexed hereto and made a part hereof (the "Schedule").
2. TERM AND TERMINATION
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(a) This Agreement shall become effective as of the date first
written above and shall remain in effect for a period of three (3) year(s)
unless it is earlier terminated in the manner provided below, or unless
renewed or otherwise extended by mutual written agreement signed by both
parties. Notwithstanding anything herein to the contrary, Datatec shall not
be obligated to commence the performance of its Services hereunder prior to
April 20, 1998.
(b) During the initial three-year term of this Agreement NTN, but not
Datatec, shall have the right to cancel this Agreement upon thirty (30)
days prior written notice stating its intention to terminate this Agreement
and specifying the date upon which the termination will be effective. In
such event, NTN shall, in addition to any other amounts owed to Datatec for
services rendered under this Agreement, pay Datatec an early termination
fee equal to the product of (i) two (2) multiplied by (ii) the monthly
support services fee (number of Sites receiving Services x $27.88 [as
increased
annually in accordance with the Schedule]) billed for the month prior to the
effective date of early termination.
(c) After the initial three year term, this Agreement may be terminated by
either party upon not less than thirty (30) days prior written notice to the
other, stating the intention to terminate the Agreement and specifying the date
upon which termination shall be effective; provided, however, that termination
of this Agreement (i) shall not become effective until the completion of
Services being performed by Datatec on the day prior to the effective date of
termination, unless otherwise agreed upon in writing and (ii) shall not affect
NTN's obligation to make payment to Datatec for work completed by Datatec prior
to termination, which obligation shall survive termination of this Agreement. In
addition, the obligations of the parties set forth in Sections 3, 6, 7, 9, 10,
11, 13 and 14 hereof shall survive any termination or expiration of this
Agreement.
3. PAYMENT AND TAXES
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(a) In consideration of the performance of the Services hereunder, NTN
shall pay to Datatec fees, charges and expenses as set forth in the Schedule.
Installation-De-installation Services as set forth on the Schedule, shall be
invoiced upon completion of such Services and be on net/30 terms. Maintenance
Services as set forth on the Schedule shall be invoiced as follows: Not later
than the fifteenth day of each month during the term of this Agreement, NTN
shall advise Datatec in writing as to the number of Sites to be maintained by
Datatec during the next succeeding month, which number shall be based on the
number of Sites operating at the time such advice is sent to Datatec. Datatec
shall invoice NTN in advance based on the said number of Sites and the
applicable maintenance charges set forth in the Schedule, and such invoiced
amounts shall be on net/30 terms from the date of said invoice, which invoice
shall be dated not earlier than the 30/th/ day of the month next preceding the
month for which services are being billed. All amounts due hereunder shall be
payable in full by NTN in United States currency without set-off or deduction
for any reason. Interest on late payments will be assessed at the rate of one
(1%) percent per month, or the maximum permitted by law, whichever is less. In
addition to such amounts, NTN agrees to pay or reimburse Datatec for all
applicable taxes not based on Datatec's net income or net worth, including but
not limited to sales, use, privilege and property taxes, or any amounts levied
in lieu thereof, based on any fees or charges payable on Services provided
hereunder or otherwise arising out of or in connection with this Agreement,
whether such taxes are now or hereafter imposed by any federal, state, local or
other taxing authority.
(b) Notwithstanding anything in this Agreement to the contrary, in the
event that as a result of a change in the technology and/or method of
distribution employed by NTN in connection with the Equipment and/or Sites that
increases or decreases the cost to Datatec of performing the Services, the
parties shall negotiate in good faith an adjustment to the fees set forth in the
Schedule. If the parties are unable to agree on an adjustment within thirty
(30) days after either party has requested same, then, notwithstanding anything
in this Agreement to the contrary, either party may terminate this Agreement on
thirty (30) days notice to the other; provided, however, that in the event of
such termination within eighteen (18) months of the date hereof, NTN shall be
obligated to pay Datatec the early termination payment provided in Section 2(b)
hereof, and in the event of such termination thereafter during the initial term
of this Agreement, NTN shall be obligated to pay Datatec one-half (1/2) of the
said early termination payment.
(c) Upon acceptance of the Agreement, NTN shall pay Datatec, as an advance
payment (the "Advance Payment") for Services to be performed by Datatec
hereunder, the sum of $150,000.00. Datatec shall apply the Advance Payment to
amounts billed by Datatec to NTN from and after November 1, 1998, or, in the
event that prior to such date NTN is more than 45 days delinquent in the payment
of any amounts due to Datatec under this Agreement, Datatec shall have the
right, but not the obligation to apply the Advance Payment, or the applicable
portion thereof, to said overdue amount. Datatec shall credit to NTN interest on
the unused portion of the Advance Payment at the rate of six (6%) percent
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per annum, computed as if the year consisted of 360 days, until the Advance
Payment is applied in accordance with this Agreement. Said interest shall also
be applied, in the manner provided above, against amounts billed by Datatec to
NTN.
4. FACILITIES; APPROVALS, ETC.
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NTN agrees to use its best efforts to obtain and/or make available to Datatec,
without charge, all facilities, services, consents and approvals reasonably
required by Datatec for the performance of Services pursuant to the Agreement,
including, but not limited to, obtaining all necessary consents and approvals
(i.e., the consents of landlords and other third parties having an interest in
the installation Site), and providing Datatec with access to the Sites during
reasonable hours, suitable workspace and such technical materials, data and
other information determined by Datatec to be necessary for the performance of
such Services as set forth in the Schedule. Without limiting the foregoing, NTN
shall be responsible for (1) performing a Site survey at each Site at which
Datatec is to perform installation Services which will identify suitable
locations for installing the Equipment at the Site; (ii) delivering each Site
survey to Datatec at least five (5) business days prior to the date Datatec is
scheduled to install the Equipment at the Site; and (iii) delivering to the
Site, the Equipment to be installed at such Site.
5. PERSONNEL
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Datatec shall have the sole right to determine which of its employees,
independent contractors or other personnel shall be assigned to perform Services
under this Agreement, and to reassign and replace such employees, independent
contractors and other personnel. Datatec shall be solely responsible for payment
of all compensation payable to Datatec personnel in connection with the
performance of the Services hereunder, including payment of employment-related
taxes and worker's compensation insurance, if applicable. Datatec shall have the
right to subcontract all or any portion of its rights, duties, obligations or
responsibilities hereunder upon notice to NTN; provided that Datatec shall
remain primarily liable for the performance of its obligations hereunder.
6. NON-SOLICITATION
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NTN hereby covenants and agrees that during the term of this Agreement, and for
a period of one (1) year thereafter, it shall not (and shall use its best
efforts to ensure that its subsidiaries and affiliates do not) directly or
indirectly solicit, hire or otherwise retain or engage, whether as an employee,
independent contractor or otherwise, any employee or other personnel of Datatec
or former employee who performed any Services during the term of this Agreement,
excluding, however, former employees whose employment with Datatec has been
terminated for three (3) months or more.
7. INDEPENDENT CONTRACTOR
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It is understood and agreed that this Agreement does not create any relationship
of association, partnership or joint venture between the parties, nor does it
create any implied licenses, nor constitute either party as the agent or legal
representative of the other for any purpose whatsoever; and the relationship of
Datatec to NTN for all purposes, including but not limited to, federal and state
tax purposes, shall be one of independent contractor. Neither party shall have
any right or authority to create any obligation or responsibility, express or
implied, on behalf or in the name of the other, or to bind the other in any
manner whatsoever.
8. INSURANCE
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(a) During the term of this Agreement, Datatec shall maintain, at its sole
expense:
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(i) a comprehensive general liability policy, including coverage for
broad form property damage, personal injury, contractual
liability and completed operations with minimum limits of One
Million Dollars ($1,000,000.00) per occurrence. Two Million
Dollars ($2,000,000.00) in the aggregate, to cover claims
arising or resulting from the negligence, acts or omissions of
Datatec, its officers, employees and agents in connection with
this Agreement;
(ii) a commercial automobile liability policy covering owned, hired
and non-owned vehicles with minimum combined single limits of
One Million Dollars ($1,000,000.00) per accident; and
(iii) policies providing workers' compensation insurance as required
by law.
Datatec shall add NTN as an additional insured under its general liability
and automobiles liability policies, and shall, within five (5) days hereof,
provide to NTN a certificate or certificates from Datatec's insurers evidencing
the above coverages.
9. CONFIDENTIALITY
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In the performance of otherwise in connection with this Agreement, a
party may disclose to the other certain information that (i) is marked or
identified in writing as confidential or proprietary information of such
party prior to, upon or promptly after receipt by the receiving party (the
"Confidential Information"). The party receiving Confidential Information
shall hold the Confidential Information in confidence and will use such
Confidential Information only for the purposes of fulfilling its
obligations under this Agreement. Nothing in this Agreement will be
interpreted to confer upon a party any implied or express license to use
the Confidential Information for any other purpose. A party shall not use
the Confidential Information of the other party for any other purpose
without the express written permission of such other party. A party shall
not disclose, provide, disseminate or otherwise make available any
Confidential Information of the other party, or any part thereof in any
form whatsoever to any third party without the express written permission
of such other party. Notwithstanding anything in this Section 9 to the
contrary, Confidential Information shall not include (i) information which
is in the public domain or in possession of the receiving party without
restriction at the time of receipt under this Agreement; (ii) is used or
disclosed with the prior written approval of the other party; (iii) is
independently developed by the receiving party; (iv) is or becomes known
from a source other than the disclosing party without breach of this
Agreement by the receiving party; or (v) is ordered to be released by a
court of competent jurisdiction or appropriate regulatory authority, but in
such case the party subject to such order agrees promptly to notify the
other party to enable the other party to assert a confidential or protected
status for the information.
10. INDEMNIFICATION AND LIMITATION OF LIABILITY
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(a) Each party shall defend, indemnify and hold the other harmless
from and against all claims, actions, suits, proceedings, damages, losses,
and expenses (including, but not limited to, reasonable attorney's fees and
costs) to the extent that any such claim, action, suit, proceeding, damage,
loss or expense is the result of any act or omission of the indemnifying
party or of any of its employees, agents, servants, independent
contractors, subcontractors or other personnel provided that the party
seeking indemnification notifies the indemnifying party promptly in writing
thereof and gives the indemnifying party exclusive authority to defend or
settle any such matter and complete information required for the defense of
same.
(b) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED BY SECTION 12 HEREOF,
NOTWITHSTANDING ANY OTHER TERM OR PROVISION IN THIS AGREEMENT TO THE
CONTRARY, DATATEC'S LIABILITY UNDER THIS AGREEMENT FOR ANY
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CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT, IN
TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (INCLUDING NEGLIGENCE,
OR OTHERWISE) WILL BE LIMITED TO GENERAL MONEY DAMAGES (AND NO OTHER RELIEF) IN
AN AMOUNT NOT TO EXCEED THE AGGREGATE FEES PAID BY NTN HEREUNDER. UNDER NO
CIRCUMSTANCES WILL DATATEC BE LIABLE FOR ANY LOSS OF PROFITS, LOST DATA, COST OF
PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, ANY CLAIM OR DEMAND
AGAINST NTN BY ANY OTHER PARTY, OR SPECIAL, CONSEQUENTIAL OR INDIRECT DAMAGES OF
ANY KIND WHATSOEVER.
(c) Neither party hereto shall be liable for failure or delay in performing any
of its obligations hereunder if such failure or delay is occasioned by
compliance with any governmental regulation, request or order, or by
circumstances beyond the reasonable control of the party, including, but not
limited to, Acts of God, war, insurrection, fire and/or flood, accident, labor
strikes, work stoppage or slowdown, or inability to obtain raw materials,
supplies, power or equipment necessary to enable such party to perform its
obligations hereunder. Each party shall (i) promptly notify the other in
writing of any such event of force majeure, the expected duration thereof, and
its anticipated effect on the ability of such party to perform its obligations
hereunder and (ii) make reasonable efforts to remedy any such event of force
majeure.
11. LIMITED WARRANTY
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Datatec warrants to NTN that for a period of one (1) year after each
Installation Completion Date, hereafter defined, the materials supplied by
Datatec in connection with the installation of any Equipment pursuant to this
Agreement (hereafter, the "Installation Services") shall be free from defects in
material and workmanship. For purposes hereof, the "Installation Completion
Date" means the date of completion of installation of Equipment at a Site.
Datatec will notify NTN of the date of completion of each Site in accordance
with the operating procedures to be developed by the parties pursuant to Section
2 (d). Datatec further warrants to NTN that all Services performed by Datatec
hereunder shall be completed in a good and workmanlike manner and according to
standards generally accepted in the industry. Datatec's sole obligation under
such warranties shall be to repair or replace (at the option of Datatec) such
defective materials and/or workmanship or to make such changes and corrections
with respect to such Services as may be required to cause the same substantially
to conform to the foregoing warranties; provided, however, that such warranties
shall be void and of no effect if the Equipment which is the subject of any
Services performed by Datatec has been abused, or used, altered, or operated in
any manner or in any environment not consistent with the intended purpose, or
modified or repaired in any manner not in accordance with common industry
practices. THE WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION 11 CONSTITUTE
THE ONLY WARRANTIES WITH RESPECT TO ANY SERVICES PERFORMED OR GOODS PROVIDED BY
DATATEC, AND THE EXCLUSIVE REMEDIES IF SUCH WARRANTIES ARE BREACHED; AND SUCH
WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY
MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF DATATEC HAS BEEN
ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES.
12. EQUITABLE RELIEF
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Datatec acknowledges and agrees that NYN will have no adequate remedy at law if
Datatec fails or otherwise determines not to provide Services in accordance with
this Agreement. NTN may therefore pursue equitable remedies, including specific
performance of this Agreement or preliminary or permanent injunctions against
any such breach of the Agreement without resort to
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arbitration. For this purpose, Datatec hereby consents to be subject to the
jurisdiction of the Superior Court of the State of California for San Diego
County.
13. DISPUTE RESOLUTION PROCEDURE
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(a) Except as otherwise provided in Section 12 hereof, this section governs
any dispute, disagreement, claim, or controversy between the parties arising
out of or relating to this agreement or its breach (the "Disputed Matter"). All
Disputed Matters shall be submitted to the following dispute resolution
process:
(i) Internal Mediation. Each party shall select, from time to time, a
senior executive to act as its mediator in connection with a Disputed Matter.
Each Disputed Matter shall be referred jointly to such senior executives. If
such executives do not agree upon a decision within five (5) days after
referral of the matter to them, the parties shall proceed to the next stage of
the dispute resolution procedure.
(ii) Outside Mediation. Either party may, upon written notice and
within five (5) days after the conclusion of internal mediation, elect to
utilize a non-binding resolution procedure whereby each presents its case at a
hearing before a panel consisting of a senior executive of each of the parties
and a mutually acceptable neutral adviser. The hearing will occur no more than
ten (10) days after the party serves written notice to use outside mediation.
Each party may be represented at the hearing by attorneys. If the matter cannot
be resolved at such hearing by the senior executives, the neutral adviser may
be asked to assist the senior executives in evaluating the strengths and
weaknesses of each party's position on the merits of the disputed matter.
Thereafter, the senior executives shall meet and try again to resolve the
matter. If the matter cannot be resolved at such meeting, the parties' only
recourse is binding arbitration as provided for in this Section and the outside
mediation proceedings will have been without prejudice to the legal position
of either party. No arbitration may commence concerning the Disputed Matter
until fifteen (15) days have elapsed from the first day of the hearing. The
parties shall each bear their respective costs incurred in connection with this
procedure, except that they shall share equally the fees and expenses of the
neutral adviser and the costs of the facility for the hearing. Both parties
agree to use their best efforts to mutually agree on the use of a facility for
which no charge will be made. Notwithstanding the foregoing, if the Disputed
Matter concerns, in whole or in part, non-payment by NTN of amounts claimed to
be owed to Datatec, the Disputed Matter, may, at Datatec's election, be
immediately submitted to arbitration as provided below.
(iii) Arbitration. If the Disputed Matter is not submitted to outside
mediation or, if submitted, cannot be resolved pursuant to outside mediation,
then either party may within ten (10) days after the completion of inside or
outside mediation, as appropriate, upon written notice, submit the Disputed
Matter to formal binding arbitration in accordance with the arbitration
provisions set forth in Section 14 hereof.
(b) Pending the resolution of any Disputed Matter under Subsections 13 (a)(i)
or (ii) above or pursuant to Section 14 below, both Datatec and NTN shall
continue their performance under this Agreement, including but not limited to
the payment of all sums which are due or which become due during the dispute
resolution process.
Except as otherwise expressly provided in Section 12 of this Agreement,
neither party will institute any action or proceeding against the other party
in any court concerning any Disputed Matter other than the entry of judgment
upon an award rendered by the arbitrators pursuant to this Section.
14. ARBITRATION PROVISIONS
----------------------
(a) Any dispute between the parties shall be settled by final and binding
arbitration in accordance with the Commercial Arbitration Rules of the American
Arbritration Association (the "AAA"); provided, however, that if such rules are
inconsistent with any provision of this Agreement, this Agreement shall
control.
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(b) Any such arbitration shall be conducted in the City of Chicago, Illinois at
a place and time mutually agreed upon by the parties or, failing mutual
agreement, selected by the arbitrator.
(c) Any arbitration shall be conducted before a single arbitrator who shall be
compensated for his or her services at a rate to be determined by the AAA, in
the event the parties are not able to agree upon his or her rate of
compensation, but based upon hourly or daily consulting rates for the neutral
arbitrator reasonably consistent with such arbitrator's normal charges or fees
charged by similarly experienced and qualified arbitrators. Within five (5) days
of notice by a party seeking arbitration under this provision, the parties shall
appoint the arbitrator. The arbitrator must be employed by the communications
industry with a minimum of five (5) years experience in communications equipment
installation and maintenance. In the event the parties cannot agree on the
selection of an arbitrator within the stated time period, the AAA rules for the
selection of an arbitrator shall be followed, provided that the selection is
from among persons who meet the above-stated requirements.
(d) Each party shall bear its own costs and expenses of arbitration including,
but not limited to, filing fees and attorney's fees, and each party hereby
agrees to pay one-half (1/2) of the administrative fees of the AAA and of the
compensation to be paid to the arbitrator in any such arbitration and one-half
(1/2) of the costs of transcripts and other expenses of the arbitration
proceedings, subject, however, to allocation of costs and expenses (including
attorneys' fees) by the arbitrator consistent with the award.
(e) The parties agree to make available to the arbitrator all nonprivileged
books, records, schedules and other information reasonably requested by them.
Such matters are to be made available to the arbitrator at such times as are
deemed necessary by the arbitrator to make a decision as herein provided.
(f) The arbitrator may conduct any pre-trial proceedings by telephonic
conference call rather than by a face-to-face meeting.
(g) The arbitrator shall, prior to rendering a decision on the arbitration
matter, afford each of the parties an opportunity, both orally and in writing,
to present any relevant evidence (the formal rules of evidence applicable to
judicial proceedings shall not apply) and to express, orally and/or in writing
that party's point of view and arguments as to the proper determination of the
arbitration matter; provided, however, that either party submitting written
material shall be required to deliver a copy of such written material to the
other party concurrently with the delivery thereof to the arbitrator and such
other party shall have the opportunity to submit a written reply, a copy of such
shall also be delivered to the other party concurrently with the delivery
thereof to the arbitrator. Oral argument shall take place only at a hearing
before the arbitrator at which all parties are afforded a reasonable opportunity
to be present and be heard.
(h) In the event of a willful and unjustified default by any of the parties
hereto in appearing before the arbitrator(s) after due written notice shall have
been given, the arbitrator is hereby authorized to render a decision upon the
testimony of the party appearing before the arbitrator. A party asserting that
its failure to appear was justified must prove such justification by clear and
convincing evidence.
(i) The arbitrator shall make a decision and award resolving the dispute within
thirty (30) days after the selection of the arbitrator; and within fifteen (15)
days of the last hearing held concerning such dispute(s).
(j) Any judgment upon the award rendered by the arbitrator may be entered in
any court having jurisdiction thereof.
(k) Within thirty (30) days after the arbitrator makes his or her decision and
award, the arbitrator shall render findings of fact and conclusions of law and a
written opinion setting forth the basis and reasons for any decision and award
rendered and deliver such documents to each party to this Agreement along with a
signed copy of the award.
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(i) The arbitrator chosen in accordance with these provisions shall not have
the power to alter, limit, expand, amend or otherwise affect the terms of this
Agreement or these arbitration provisions, and any award is subject to the
Limitation of Liability and Consequential Damages and Limited Warranty
provisions contained in Sections 10 and 11 hereof.
15. AMENDMENTS AND SEVERABILITY
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This Agreement may not be amended or modified, nor may any right hereunder be
waived except by a written agreement signed by the party against which the same
is sought to be enforced. This Agreement will not be amended or modified by the
terms of any purchase order or acknowledgment, which will be considered solely
for convenience of NTN regardless of whether Datatec may have accepted or signed
the same. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction will, as to such jurisdiction, be ineffective
to the extent of such invalidity or unenforceability without rendering invalid
or unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions of
the Agreement in any other jurisdiction.
16. NOTICES
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Any notice, request, demand or other communication required or permitted under
this Agreement shall be in writing and shall be deemed to have been be properly
given (i) if personally delivered, on the delivery date; (ii) three (3) days
after deposit in the mails if mailed by certified or registered air mail, return
receipt requested and postage prepaid; or (iii) if sent by facsimile, on the
date of receipt as evidenced by the facsimile confirmation report (provided,
however, that in the event of a notification of breach, the notice shall also be
mailed in the manner provided in (i) or (ii) above), in each case addressed or
transmitted as set forth on the signature page of this Agreement or to such
other address or facsimile number as from time to time may be given in the
manner permitted above.
17. AUTHORITY
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Each party warrants and represents that it has the power to enter into
this Agreement and perform in accordance with the provisions hereof and that the
execution and performance of the Agreement has been duly and validly authorized
in accordance with all applicable laws and governing instruments.
18. GENERAL
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This Agreement, together with any addendum hereto and the attached
Schedule (i) constitute the entire Agreement between the parties and supersedes
and replaces all prior agreements and representations with respect to the
subject matter thereof, (ii) shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns, (ii) shall not
confer any rights or remedies upon any person or entity not a party hereto. In
any action or proceeding to enforce its rights under this Agreement, the
prevailing party shall be entitled to recover reasonable attorney's fees and
costs.
19. WAIVER
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No waiver of any breach of any of the provisions of the Agreement shall
be construed to be a waiver of any succeeding breach of the same or any other
provision.
20. GOVERNING LAW
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This Agreement shall be construed and governed in accordance with the
laws of the State of California without regard to principles of conflict of
laws.
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21. COUNTERPARTS: SIGNATURES
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This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute on
and the same agreement. Facsimile signatures of the parties may be used in
connection with the execution or any amendment of this Agreement, but each party
executing this Agreement or any such amendment pursuant to a facsimile signature
shall promptly provide the appropriate signature page containing such party's
original signature to the other party.
IN WITNESS WHEREOF, the parties have caused their authorized representative
to execute this Agreement as of the date first above written.
ACCEPTED BY DATATEC SYSTEMS, INC: ACCEPTED BY CUSTOMER:
DATATEC SYSTEMS, INC. NTN COMMUNICATIONS, INC.
20C Commerce Blvd. The Campus, 5966 La Place Court
Totowa, NJ 07512 Carlsbad, CA 92008
(Facsimile (973-575-9599)(Att'n (Facsimile (760) 929-5293)(Att'n:
Ray Koch and Jim Cummiskey) Geoff Labat and Kevin Loughran, Esq.)
By: /s/ James J. Cummiskey By: /s/ Geoffrey P. Labat
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(Authorized Officer) (Authorized Officer)
James J. Cummiskey, Vice President Geoffrey P. Labat
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(Name and Title) (Name and Title)
3/30/98 3/30/98
-------------------------- --------------------------
(Date) (Date)
03/30/98 3:43 PM
Document #: 36870
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WORK ASSIGNMENT SCHEDULE
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This Work Assignment Schedule is entered into by and between Datatec
Systems, Inc. ("Datatec") and NTN Communications ("Customer") pursuant to that
certain Installation and Support Services Agreement between Datatec and Customer
(the "Agreement"), and relates to certain Installation and Support Services (as
defined in the Agreement), which Customer desires Datatec to perform under the
terms and conditions set forth herein and in the Agreement. The following
Installation and Support Services are the subject of this Work Assignment
Schedule:
Description of Services: NTN Install and Support
Project Pricing
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Installation Services (49 MHz.) $884.00/Site
(900 MHz.) $723.00/Site
Support Services (24-48 hour response) $27.88/Site/Month
De-installation Services $380.00/Each
A. Description of Installation Services and Procedures
- ------------------------------------------------------
NTN Installation Coordinator contacts Datatec Call Center ("DCC")
providing:
Account name
Address
Phone number
Contact
Completed Site Survey
Shipping delivery timeline
Work schedule considerations (hours of operation/property availability
considerations)
DCC advises NTN of scheduled installation date
NTN deploys system to new subsriber to arrive no later than 1 working day
prior to the scheduled installation date.
Datatec verifies system delivery
Datatec Installation Services include:
(49 MHz.)
NTN Network Service Contract
Assemble, secure and align satellite dish
Run cable from dish to IDR card
Test satellite signal
Placement of dedicated PC
Position and mount antennas for RF delivery system in accordance with
recommended procedures
Run cable to/from basestation to said antennas
Run video feed to insertion point of existing distribution system. Using
provided modulator, select unused channel.
Verify that entire video distribution system is fully functional after
insertion, amplifying or attenuating feeds as needed.
Link modem to customer provided phone jack
Test modem functions
Completion of check-list/sign-off form
Insure facility is left in clean condition
Playmaker charging tray(s) and charger(s)
(900 MHz.)
Same as above without the need to run cable or mount antennas for the RF
delivery system.
Datatec will provide the following:
(6) 8x8x16 concrete blocks for dish ballast
RG6 cabling
RG6 Connectors
Tie Wraps
All Needed Tools
Datatec will perform installation services within 14 calendar days after
notification.
Installation fees include all project management fees.
B. Description of De-installation Services and Procedures
- ----------------------------------------------------------
NTN notifies the DCC providing:
Account name
Address
Phone Number
Contact
List of equipment to be returned (including # of Playmakers)
Copy of UCC-1 form
Special circumstances (i.e. short notice because going out of business)
The Datatec technician contacts subscriber to arrange equipment removal.
Datatec dispatches technician to remove system within 30 days of
notification.
Equipment removal includes:
All visible internal NTN related cabling
Basestation antennas
Computer
Modulator (if provided)
Charging tray(s)
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NTN Network Service Contract
Charger(s)
Playmakers Satellite dish
All visible external cabling
The Datatec technician will notify the NTN Call Center of job completion,
and collect RMA information. During call, Datatec technician will inform
NTN of any discrepancy between the actual number of Playmakers collected
and NTN records.
At the completion of the de-installation, Datatec packages and returns system
components via preferred carrier per RMA protocol, including:
Computer
Basestation antennas
Modulator (if provided)
Charging tray(s)
Charger(s)
Playmakers
LNB from satellite dish (Datatec to dispose of remaining assembly)
NTN will incur all freight costs directly from their preferred
carrier. Datatec will ship and track all product returned to NTN.
C. Description Of Support Services And Procedures
- --------------------------------------------------
All calls will initially go to the NTN Call Center. The NTN call center will
then contact a single designated dispatcher within Datatec and shall provide
the following:
Account information
Nature of problem
Description of parts shipped (if any) and ETA of such shipment
Tracking data (if any)
RMA data (if any)
Datatec confirms shipment of party before going to site.
Datatec dispatches technician by next day in 60% of the cases and within two
days in 100% of the cases, excepting shipping delays
Datatec technician contacts NTN Call Center upon completion of repair for
additional testing, documentation, verification and release. In the
event that wait times exceed 15 minutes, the Datatec technician will
leave a voice mail message. This will then serve as the release
NTN closes open ticket
Datatec technician returns and tracks all RMA components to NTN via
preferred carrier per RMA protocol to NTN facility in Carlsbad, CA.
NTN will incur all freight costs directly from its preferred carrier
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NTN Network Service Contract
Support services include maintenance and replacement of the following
components/systems:
CPU
Hard Disk
Keyboard
NTSC video board
IDR
RF basestation
Modem
Modem interface to customer provided wall jack
RG6 cabling and connectors
Satellite dish
RF delivery system including antennas
Video interface to existing distribution system
Modulator (if provided by NTN)
Charging system
Support services include all project management fees.
D. Required Field Personnel Equipment
----------------------------------
External IDR (Wavefore 800-473-3332)
Radio Shack audio amplifier (part #277-1008) and interface cable (dish
alignment)
Compass and inclinometer
Ladder(s)
RG6 crimper, wire stripper, wire cutter
RG6 connectors: F, F-RCA, F-BNC, F-UHF
Bulk RG6 cable (1000 ft)
Drill and assorted bits
Single line phone
Portable color monitor with RF and video inputs
Phillips and flathead screwdrivers
Ratchet with 10 mm and 13 mm deep sockets (sat dish assembly)
Tape fish & push poles for cable runs
(6) 8x8x16 concrete blocks for dish ballast
Voltmeter
50 and 100 ft extension cords
4
NTN Network Service Contract
IBM compatible computer keyboard with PS2 adapter
Basestation antenna and interface cable (NTN provided)
E. Labor
-----
Items not covered in the above scope of work
- - Straight Time $80.00/hr.
- - Monday through Friday, first 8 hours of each day
- - Over Time $120.00/hr.
- - Monday through Friday, after first 8 hours of each day
- - Saturday, first 8 hours
- - Double Time $125.00/hr.
- - Monday through Friday, after first 16 hours
- - Saturday, after first 8 hours or Sundays or Holidays
- - Travel Time (+50 Miles from Office) $80.00/hr.
- - Sunday through Saturday, all day
Expenses
Per Diem (+50 Miles from Office) $52.00/day
Van Included
Other Expenses As Needed Cost x 1.2
Rental Car
Airfare
Lift Rental
Tool Rental
Special Shipping
Hotel
Materials (Outside of Scope) Current List
Other Contract Assumptions
The terms of this contract are only valid with a package of items A, B and C in
the defined scope of work.
Datatec's furnishing of a call center is contingent upon NTN agreeing to
utilizing Datatec exclusively for items A-C in enclosed scope of work
description.
Expenses are incurred when the site is more than 50 miles from a Datatec office
when T, M and E is applicable (work not covered under items A-C).
All Project Management fees are included in hourly rate.
All installation, deinstallation and support prices (items A-C) will incur an
upward adjustment of 3% on March 1, 1999 and 3% on March 1, 2000
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NTN Network Service Contract
ACCEPTED BY DATATEC: ACCEPTED BY CUSTOMER:
- ----------------------------------- -----------------------------------
DATATEC INDUSTRIES, INC. NTN Communications, Inc.
20C Commerce Way The Campus
Totowa, New Jersey 07512 5966 La Place Court
Carlsbad, CA 92008
- ----------------------------------- -----------------------------------
By: By:
X /s/ James J. Cummiskey X /s/ Geoffrey D. Labat
- ----------------------------------- -----------------------------------
- ----------------------------------- -----------------------------------
(Authorized Officer) (Authorized Officer)
- ----------------------------------- -----------------------------------
- ----------------------------------- -----------------------------------
(Print) (Print)
(Name and Title) (Name and Title)
James J. Cummiskey, Vice President Geoffrey D. Labat
- ----------------------------------- -----------------------------------
- ----------------------------------- -----------------------------------
Date: Date:
3/30/98 3/30/98
- ----------------------------------- -----------------------------------
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