Agreement to Lease Machines and Purchase Parts - On-Point Technology Systems Inc. and GTECH Corp.
AGREEMENT TO LEASE MACHINES AND PURCHASE PARTS
THIS AGREEMENT is made and entered into on the dates indicated below by
and between ON-POINT TECHNOLOGY SYSTEMS, INC., Nevada corporation with its
principal office at 8444 Miralani Drive, San Diego, California 92126
("On-Point"), and GTECH CORPORATION, a Delaware corporation with its principal
office at 55 Technology Way, West Greenwich, Rhode Island 02817 ("GTECH") in
accordance with the following facts and objectives:
A. On-Point manufactures and sells and/or leases vending machines for
dispensing instant lottery tickets, commonly known as "ITVMs."
B. On-Point previously sold over 3,800 of its ITR(TM)-7500 ITVMs to the
California State Lottery ("CSL") and GTECH currently provides
preventive and remedial maintenance service to the CSL for such
ITVMs.
C. The CSL has issued an Invitation For Bid, IFB #7-001-B ("IFB")
requesting bids to provide future preventive and remedial
maintenance for the CSL-owned ITR(TM)-7500 ITVMs, to install and
relocate ITVMs, and to lease to the CSL and service a minimum of
five hundred (500) new 12-bin ITVMs, with an option to lease up to
an additional one thousand (1,000) 12-bin ITVMs during the term of
the Contract.
D. On-Point and GTECH desire to enter into this Agreement pursuant to
which On-Point agrees to manufacture its ITR(TM) ITVMs for use by
the CSL ("Machines") and GTECH agrees to lease such Machines and
purchase any proprietary spare parts for the CSL-owned ITVMs in
accordance with the terms and provisions of this Agreement.
IT IS AGREED, THEREFORE, as follows:
1. Manufacture and Lease of Machines.
(a) GTECH hereby agrees to lease from On-Point and On-Point agrees to
lease to GTECH the Machines ordered by the CSL pursuant to the
contract resulting from the IFB ("CSL Contract") in the event GTECH
is awarded the CSL Contract, for the monthly Lease Payment per
Machine as shown on Exhibit A, which is attached hereto and
incorporated herein by this reference, or pro rata portion thereof
for part of a month (determined on the basis of a thirty (30) day
month), plus shipping costs and applicable local and state taxes. It
is agreed and acknowledged by the parties that GTECH will sublease
the Machines to the CSL in accordance with the CSL Contract.
(b) The Lease Term for each Machine shall commence on the earlier of the
date of installation or fifteen (15) days after delivery of the
Machine to GTECH and shall end on the third anniversary of the date
of the CSL Contract, unless sooner terminated or extended. The Lease
Term shall be extended for an additional period up to two (2) years
in the event and to the extent the CSL exercises its right to extend
the lease term with GTECH in accordance with the CSL Contract. GTECH
shall provide On-Point with written notice of any such extension.
GTECH, by providing written notice to On-Point, shall have the right
to terminate the lease of any Machine in the event the CSL
terminates its lease of such Machine from GTECH in accordance with
the CSL Contract. In the event GTECH terminates its lease of any
Machine before the end of the initial Lease Term, GTECH shall
thereafter for the balance of the initial Lease Term and any
extension use its reasonable efforts, in coordination with On-Point
and the CSL, to locate a replacement site for installation of such
Machine.
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The re-leasing of any Machine shall be on the same terms as agreed
in this Agreement for originally leased Machines.
(c) GTECH shall submit written orders for Machines to On-Point. On-Point
will fill all orders in compliance with the IFB, the CSL Contract
and the requests of the CSL. On-Point agrees that for purposes of
this Agreement, it is not commercially unreasonable to expect
delivery of the first five hundred (500) Machines within six (6)
weeks of receipt of the written order and it is not commercially
unreasonable to expect delivery of the next one thousand (1000)
Machines within eight weeks receipt of the written order. On-Point
shall pay GTECH liquidated damages of $255, as increased
corresponding to any increase by the CSL in the CSL Contract in the
daily rate of liquidated damages, for each day On-Point's delivery
is delayed beyond the requirements of the CSL Contract, subject,
however, to the CSL assessing GTECH liquidated damages for failure
to install such Machine on a timely basis in accordance with the CSL
Contract. On-Point shall not be liable for any delay in or failure
of performance under this Agreement due to a "Force Majeure"
occurrence provided that On-Point shall use reasonably diligent
efforts to avoid or otherwise minimize the impact of an event of
Force Majeure on On-Point's performance. Any such delay in or
failure of performance shall not constitute a default or give rise
to any liability for damages. A Force Majeure occurrence shall be as
defined in Article III, Section A, 7 of the IFB. On-Point will use
its best efforts to advice GTECH in advance of any inability to make
full and timely delivery of any Machines which GTECH has previously
ordered. Should GTECH order any Machine from On-Point when twelve
(12) months or less remains on the initial Lease Term, GTECH shall
thereafter use its reasonable efforts, in coordination with On-Point
and the CSL, to seek an extension of the Lease Term for such Machine
for the full twenty-four (24) month extension period.
(d) On-Point shall send invoices to GTECH on a monthly basis, dated as
of the last day of each month during the Lease Term. GTECH agrees to
send invoices to the CSL on a monthly basis in accordance with the
CSL Contract. Monthly Lease Payments to On-Point shall be due on the
earlier of (i) four (4) business days after GTECH's receipt of
payment from the CSL for such month, or (ii) fifty (50) days after
the invoice date. On all amounts not properly paid by GTECH when due
under this Agreement, interest shall accrue at the rate specified in
Article III, Section D, 2 of the IFB.
(e) Within the earlier of three (3) days of installation or thirty (30)
days of the date of delivery of each Machine, GTECH will provide
On-Point with a Certificate of Acceptance in the form agreed to by
the parties. Such Certificate of Acceptance shall confirm the
delivery and operation of the Machine and shall be sufficient to
deem the Machine accepted by GTECH. In the event of dispute as to
the date of delivery, the Bill of Lading shall be deemed controlling
as to date. Each Machine shall be deemed accepted by GTECH unless
written notice of rejection of the Machines for nonconformance with
this Agreement or for being nonoperational is given to On-Point
prior to the due date of the Certificate of Acceptance. Such notice
of rejection shall specify the reasons therefor and On-Point shall
have a reasonable opportunity to cure any defect.
(f) GTECH shall install Machines at sites designated by the CSL.
On-Point shall provide to GTECH and GTECH shall include within the
response to the IFB parameters and instructions for effective use
and operation of the Machines, including requirements for the proper
operating environment. The response to the IFB shall provide that
any warranty shall not extend to Machines which fail or are damaged
due to operation or use in a manner
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or environment not conforming to any published instructions or specifications
issued by On-Point.
(g) GTECH shall use its reasonable efforts to ensure the CSL will not
use or permit the use of the Machines for any purpose which,
according to the specifications of On-Point, the Machines are not
designed or reasonably suited. GTECH shall use its reasonable
efforts to ensure the CSL will use the Machines in a careful and
proper manner and comply with all of On-Point's instructions,
governmental rules, regulations, requirements and laws, if any, with
regard to the use, operation or maintenance of the Machines.
(h) GTECH, at its expense, shall be solely responsible for the delivery.
installation, maintenance, repair and relocation of the Machines.
Except as provided in Paragraph 6, during the Lease Term, GTECH, at
its expense, shall keep the Machines in good repair, condition and
working order, and shall furnish any and all parts, mechanisms and
devices required to keep the Machines in good mechanical and working
order. Shipping point shall be FOB San Diego County to location(s)
specified by GTECH within California. All costs of shipping and
insurance shall be borne by GTECH and paid within thirty (30) days
of invoice.
(i) Whenever On-Point shall deliver or cause to be delivered to a common
carrier any Machines ordered by GT, whether the particular carrier
shall have been designated in the shipping or routing instructions
of GTECH or not, On-Point shall not be responsible for any delays
or damages in shipment. On-Point shall be responsible for the
proper packaging for shipment of all Machines delivered under this
Agreement.
(j) GTECH shall perform monthly Preventive Maintenance (PM) on the
installed Machines in accordance with the IFB.
(k) GTECH acknowledges and agrees that its obligation to pay Lease
Payments and other sums payable under this Agreement, and the rights
of On-Point, shall be absolute and unconditional in all events, and
shall not be subject to any abatement, reduction, set-off, defense,
counterclaim or recoupment due or alleged to be due by reason of any
past, present at future claims GTECH may have against On-Point.
Notwithstanding the foregoing, GTECH shall have the right to
withhold any monthly payment from On-Point in the event and to the
extent the CSL does not pay GTECH pursuant to its right to off-set
payments owed to GTECH under the liquidated damages clauses of the
CSL Contract if such off-set relates to matters within the control
of On-Point as manufacturer of the Machines and not to matters
within the control of GTECH as the service provider under the CSL
Contract.
(l) The Machines leased under this Agreement shall at all times be and
remain the sole and exclusive property of On-Point. GTECH shall have
no right, title or interest therein or thereto except as expressly
set forth in this Agreement. GTECH agrees to execute and deliver
financing statements and any other such instruments as On-Point may
believe to be reasonably necessary to grant to On-Point or its
assigns a first priority security interest in, and to perfect such
security interests in, this Agreement, any amounts due hereunder, or
the Machines.
(m) On-Point and GTECH intend and agree, and GTECH hereby covenants,
that the Machines shall at all times be and remain personal property
and shall not be so affixed to realty as to become a fixture or
otherwise to lose its identity as the separate property of
On-Point.
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(n) GTECH shall, at its expense, keep the Machines free and clear of all
levies, liens, and encumbrances, except those in favor of On-Point
or its assigns or which arise as a result of actions by On-Point or
its assigns.
(o) GTECH shall pay any sales tax, property tax, and other applicable
taxes resulting from leasing of Machines hereunder, other than
income taxes of On-Point. These taxes shall be shown as separate
line items on Exhibit A.
(p) On-Point shall maintain all insurance required by the IFB and the
CSL Contract on the Machines throughout the Lease Term. GTECH shall
maintain the automobile insurance and all bonds required by the IFB
and the CSL Contract.
(q) Within the period described below after the Termination Date, GTECH
shall return the Machines to On-Point in good repair, condition and
working order, ordinary wear and tear resulting from the proper use
thereof alone excepting, by delivering the Machines at GTECH's cost
and expense to the destination designated by On-Point in San Diego
County. The Termination Date shall mean the date on which the Lease
Term ends for the Machines or, where there is an earlier
termination, the date on which all of GTECH's obligations under this
Agreement relating to the lease of Machines have been fully
discharqed. If the lease is terminating for twenty (20) or fewer
Machines, the Machines shall be returned to On-Point within five (5)
days of the Termination Date. If the lease is terminating for all
Machines, the Machines shall be returned to On-Point within
forty-five (45) days of the Termination Date. If the lease is
terminating for more than twenty (20) Machines and less than all
Machines, the parties will agree, in good faith, on a reasonable
time period for return of the Machines, using the foregoing time
periods as guidelines. If GTECH shall without cause fail to deliver
the Machines to On-Point in accordance with this paragraph, GTECH
shall be treated as a holdover tenant for the Machines for a month
to month renewal Lease Term and shall continue to pay Lease Payments
for the Machines as required by this Agreement. This paragraph shall
not derogate from On-Point's right, to be exercised in its sole
discretion, to obtain return of any Machine within the applicable
periods described above, or to declare a default for any failure of
GTECH to so return the Machine.
2. Purchase of Spare Parts.
(a) GTECH hereby agrees to purchase from On-Point and On-Point agrees
to sell to GTECH proprietary spare parts necessary to maintain the
CSL-owned ITVMs in good working order and repair, for the purchase
prices indicated on Exhibit A (plus shipping costs and applicable
local and state taxes), which prices are a discount from On-Point's
most favored pricing for such spare parts. The prices on Exhibit A
shall only apply in the event GTECH is awarded and executes the CSL
Contract. On-Point may increase the prices for spare parts on or
after the third anniversary of the CSL contract on an annual basis
consistent with an increase in the cost of living. In addition,
On-Point may increase the prices for spare parts upon thirty (30)
days written notice to GTECH and upon a showing that any such
increase is required by and consistent with increases in the cost of
manufacturing the spare parts. As an alternative to GTECH purchasing
proprietary spare parts on an as needed basis, GTECH shall have the
option to elect an extended warranty from On-Point on proprietary
spare parts used on the CSL-owned ITVMs during the term of this
Agreement for the monthly extended warranty fee as provided in
Exhibit A. Such election must be made by GTECH prior to the
execution of the CSL Contract.
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(b) GTECH shall submit written purchase orders for spare parts to
On-Point. On-Point will fill all orders within fourteen (14) days.
On-Point shall not be liable for any delay in or failure of
performance under this Agreement due to a "Force Majeure" occurrence
provided that On-Point shall use reasonably diligent efforts to
avoid or otherwise minimize the effect of an event of Force Majeure
on On-Point's performance. Any such delay in or failure of
performance shall not constitute a default or give rise to any
liability for damages. A Force Majeure occurrence shall be as
defined in Article III, Section A, 7 of the IFB. On-Point will use
its best efforts to advise GTECH in advance of any inability to make
full and timely delivery of any spare parts which GTECH has
previously ordered.
(c) GTECH shall pay On-Point the purchase price for the spare parts,
F.O.B. the place of shipment. The place of shipment shall be
On-Point's facility in San Diego County, California. GTECH shall pay
to On-Point the full purchase price for the spare parts, plus
shipping costs and applicable local and state taxes, within thirty
(30) days of invoice.
(d) Whenever On-Point shall deliver or cause to be delivered to a
common carrier any spare parts ordered by GTECH, whether the
particular carrier shall have been designated in the shipping or
routing instructions or GTECH or not, On-Point shall not be
responsible for any delays or damages in shipment. On-Point shall be
responsible for the proper packaging for shipment of all spare parts
sold and delivered under this Agreement.
3. Bid to CSL.
(a) GTECH shall submit to the CSL, on a timely basis, a complete and
competitive response to the IFB in conformance with the requirements
of the IFB. Such IFB response shall list On-Point as a
subcontractor/supplier for the Machines and proprietary spare parts
and On-Point shall cooperate fully with GTECH in responding to the
IFB.
(b) As long as GTECH does not have the right to terminate this Agreement
pursuant to Paragraphs 12 or 13, GTECH agrees that On-Point shall be
the exclusive manufacturer for supplying GTECH and any subsidiary
with ITVMs for use by the CSL (and proprietary spare parts for such
ITVMs) pursuant to the IFB and GTECH or any subsidiary will not
manufacture ITVM or purchase and/or lease any ITVMs from any person
or entity other than On-Point for use by the CSL in accordance with
the IFB, without the express written consent of On-Point, which
consent may be withheld in its sole discretion.
(c) GTECH agrees that in the event GTECH is not awarded the CSL
Contract, GTECH or any subsidiary shall not provide any preventive
or remedial maintenance services to the CSL for ITVMs at a price
less than the price bid in response to the IFB, either under a
contract directly with the CSL or under subcontract to the person or
entity awarded the CSL Contract, unless GTECH is awarded a contract
under a separate Invitation for Bid issued by the CSL or GTECH's
current contract with the CSL is extended.
4. Representations and Warranties of On-Point. On-Point represents and
Warrants that:
(a) It is a corporation duly organized, validly existing, and in good
standing under the laws of Nevada, is qualified to transact business
and is in good standing in California, and has all necessary
corporate powers to own its properties and to operate its business
as now owned and operated by it.
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(b) It has the right, power. legal capacity, and authority to enter
into, and perform its obligations under this Agreement, and no
approvals or consents of any persons are necessary in connection
with it.
(c) The Machines will meet the specifications of the IFB and will be
year 2000 compliant. To the best of its knowledge, based on the
written opinion of an independent expert engaged by On-Point, the
Machines comply with the Americans with Disabilities Act of 1990
("ADA").
(d) The Machines do not infringe on the intellectual property rights of
any third party.
5. Representations and Warranties of GTECH. GTECH represents and warrants
that:
(a) It is a corporation duly organized, validly existing, and in good
standing under the laws of Delaware, is qualified to transact
business and is in good standing in California, and has all
necessary corporate powers to own its properties and to operate its
business as now owned and operated by it.
(b) It has the right, power, legal capacity, and authority to enter
into, and perform its obligation, under this Agreement, and no
approvals or consents of any persons are necessary in connection
with it.
6. Warranty on Machines. The Machines will be fully guaranteed against
defects in material and workmanship for the Lease Term. Warranty will
include, but not be limited to, all hardware, components, chassis,
electrical and software. Should any defect he noted during the Lease Term,
On-Point must promptly be notified by GTECH or its representative and will
repair or replace the defective component or Machine at no cost to GTECH.
All shipping coats associated with repair and replacement of Machines
under warranty will be the responsibility of On-Point.
The warranty set forth above does not extend to: (a) products not
purchased or leased from On-Point; (b) any Machines which have been
damaged or rendered defective as a result of accident, misuse, or abuse;
(c) by the use of parts not manufactured, authorized or sold by On-Point;
(d) by modification or as a result of service by anyone other than
On-Point, GTECH, or an authorized On-Point Warranty service provider; (e)
Machines not containing original components or original replacement of
components; (f) damage during shipment, unless due to incorrect packaging
by On-Point; or (g) Machines which fail or are damaged after delivery
thereof to GTECH due to shipment, handling, storage. operation, use or
maintenance in a manner or environment not conforming to any published
instructions or specifications issued by on-Point.
With the exception of the warranties set forth above, On-Point MAKES NO
EXPRESS OR IMPLIED WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION:
THOSE OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR USE, OF CONDITION,
PERFORMANCE, SUITABILITY OR DESIGN, OR CONFORMITY TO ANY LAW, RULE,
REGULATION, AGREEMENT OR SPECIFICATION.
7. Other On-Point Products. GTECH agrees to use its reasonable efforts to
promote the use of On-Paint's other products by the CSL upon such terms
and at such time as mutually agreed by the parties.
8. Confidential Information. GTECH and On-Point have entered into a
Confidentiality Agreement dated August 19, 1998, a copy of which is
attached hereto as Exhibit B and incorporated herein by this reference.
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9. GTECH's Indemnity. GTECH shall indemnify, defend, and hold On-Point
harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorneys'
fees, incurred or suffered by On-Point that arise or result from or relate
to any breach of, or failure by GTECH to perform, any of its
representations, warranties, commitments, covenants, or agreements in this
Agreement ("Indemnity Obligation").
10. On-Point's Indemnity. On-Point shall indemnify, defend, and hold GTECH
harmless against and in respect of any and all claims, demands, losses,
costs, expenses, obligations, liabilities, damages, recoveries, and
deficiencies, including interest, penalties, and reasonable attorneys'
fees, incurred or suffered by GTECH that arise or result from or relate to
any breach of, or failure by On-Point to perform any of its
representations, warranties, commitments, covenants, or agreements in this
Agreement ("Indemnity Obligation"). In addition, in the event On-Point
breaches its representation in Paragraph 4(d) and, as a result, GTECH
and/or the CSL is enjoined from using the Machines and such injunction is
not promptly removed by On-Point, On-Point shall either obtain a license
to allow continued use of the Machines or will modify the Machines, at its
cost and expense, to eliminate any infringement with similar
functionality.
11. Indemnification Procedure.
(a) Promptly, upon receipt by the party to be indemnified ("Indemnified
Party") and held harmless from and against an Indemnity Obligation,
of a demand, claim, action, assessment or proceeding made or brought
by a third party, including a governmental agency ("Third Party
Claim") relating to an Indemnity Obligation, the Indemnified Party
shall notify the party obligated to indemnify it (the "Indemnitor")
in writing of its existence, setting forth the relevant facts and
circumstances, specifying the basis upon which the Indemnified
Party's claim for indemnification is asserted and tender the defense
of the Third Party Claim to the Indemnitor.
If Indemnitor accepts responsibility for the defense of the Third
Party Claim, then the Indemnitor shall have the right to contest,
defend and litigate the Third Party claim and shell have the right,
in its discretion exercised in good faith and upon the advice of
counsel, to settle any such matter, either before or after the
initiation of litigation, at such time and upon such terms as it
deems fair and reasonable, provided that at least ten (10) days
prior to any such settlement, it shall give written notice of its
intention to settle to the Indemnified Party and provided further
that such settlement otherwise complies with the provisions of
paragraph 11(b). The Indemnified Party shall have the right to be
represented by counsel at its own expense in any defense conducted
by Indemnitor.
(b) Notwithstanding the foregoing, in connection with any settlement
negotiated by Indemnitor, no Indemnified Party shall be required to:
(i) Enter into any settlement (A) that does not include the
delivery by the claimant or plaintiff to the Indemnified Party
of a release from all liability in respect of such claim or
litigation, (B) if the Indemnified Party shall, in writing to
Indemnitor within the ten (10) day period prior to such
proposed settlement, disapprove of such settlement proposal
and desire to have Indemnitor tender the defense of such
matter back to the Indemnified Party, or (C)
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that requires an Indemnified Party to take any affirmative
actions as a condition of such settlement, or
(ii) Consent to the entry of any judgment that doom not include a
full dismissal of the litigation or proceeding against the
Indemnified Party with prejudice.
It is expressly provided, however, that should the Indemnified Party
disapprove of a settlement proposal pursuant to paragraph 11(b)
(1)(B) above, the Indemnitor's liability to the Indemnified Party
shall, upon final resolution of such Third Party Claim, be limited
to the amount at which the Indemnitor proposed to settle such Third
Party Claim prior to the exercise by the Indemnified Party of its
right as set forth above.
(c) If an Indemnified Party shall be entitled to indemnification against
a Third Party Claim, and if Indemnitor shall fail to accept the
defense of a Third Party Claim which has been tendered in accordance
with this Paragraph, the Indemnified Party shall have the right,
without prejudice to its right of indemnification hereunder, in its
discretion exercised in good faith and upon the advice of counsel,
to contest, defend and litigate such Third Party Claim, and may
settle such Third Party Claim, either before or after the initiation
of litigation, at such time and upon such terms as the Indemnified
Party deems fair and reasonable, provided that at least ten (10)
days prior to any such settlement, written notice of its intention
to settle is given to Indemnitor, which notice is for information
purposes only and is not intended to provide any additional rights
to the Indemnitor. If, pursuant to this paragraph, the Indemnified
Party so defends or settles a Third Party Claim for which it is
entitled to indemnification hereunder, as hereinabove provided, the
Indemnified Party shall be reimbursed by Indemnitor for the
reasonable attorneys' fees and other expenses. No failure by
Indemnitor to acknowledge in writing its indemnification obligations
under this Agreement shall relieve it of such obligations to the
extent they exist.
12. Right of Either Party to Terminate. Either party, at its option, may
terminate this Agreement immediately upon written notice to the other
party in the event:
(a) A receiver or trustee is appointed of all or a substantial portion
of the assets of the other party.
(b) The other party becomes insolvent or unable to pay debts as they
mature, makes a general assignment for the benefit of creditors or
voluntarily files under any bankruptcy or similar act or takes
advantage of any debtor relief proceedings under any present or
future federal or state law.
(c) Any involuntary petition in bankruptcy is filed against the other
party and not dismissed within ninety (90) days.
Termination in this manner does not constitute a waiver of any damages, or
any other remedies that a party may have in addition to the right to
terminate.
13. Termination by Either Party For Cause. If either party defaults in the
performance of its obligations under this Agreement or breaches any or its
representations, warranties or covenants hereunder, the non-defaulting
party may give written notice of default to the defaulting party,
specifying the nature of the default. If such default is not cured within
thirty (30) days after the date of such notice, the non-defaulting party
may terminate this Agreement, effective immediately, by giving written
notice of termination to
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the defaulting party. Termination in this manner does not constitute a
waiver of any damages, or any other remedies the non-defaulting party may
have in addition to the right to terminate.
14. License of Technology. Within sixty (60) days of the date of this
Agreement and in the event GTECH is awarded the CSL Contract, the parties
shall negotiate in good faith an arrangement (excluding an escrow
arrangement) pursuant to which GTECH shall become a licenser of On-Point
proprietary information and technology necessary to fulfill the CSL
Contract if On-Point is unable to fulfill its obligations under this
Agreement as a result of the occurrence of one of the events described in
Paragraph 12.
15. Notices. All notices and other communications which are required or which
may be given under the provisions of this Agreement shall be in writing
and may be delivered to a party by personal service at the indicated
address, or by facsimile, or may be mailed by registered or certified
mail, postage prepaid, to the parties as follows;
In the case of On-Point, to:
Frederick Sandvick, Chairman and CEO
On-Point Technology Systems, Inc.
8444 Miralani Drive
San Diego, CA 92126
Fax 613-621-5060
In the case of GTECH, to:
Dan McKinzey, Account General Manager
GTECH Corporation
3810 Rosin Court, Suite 100
Sacramento, CA 95834
Fax: 916-924-0716
All notices and communications shall be deemed to have been received by
the party to whom it was addressed on the date of personal delivery of
facsimile or on the third business day following the date of mailing.
Either party may change its address at any time by written notice to the
other party at the addresses set forth above.
16. Completeness of Instrument. This Agreement, including all Exhibits,
contains all of the agreements, understandings, representations,
conditions, warranties, or covenants made between the parties with respect
to the subject matter hereof. Unless set forth herein, neither party shall
be liable for any representations made, and all modifications and
amendments hereto must be in writing.
17. Assignment. GTECH shall not transfer or assign this Agreement or any part
thereof without the written consent of On-Point, which consent shall not
be unreasonably withheld. On-Point shall not transfer or assign this
Agreement or any part thereof without the written consent of GTECH, which
consent shall not be unreasonably withheld.
18. No Implied Waivers. The failure of either party at any time to require
performance by the other party of any provision hereof shall not affect in
any way the full right to require such performance at any time thereafter.
Nor shall the waiver by either party of a breach of any provision hereof
be taken or held to be a waiver of the provision itself.
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19. Controlling Law. The validity, interpretation and performance of this
Agreement shall be controlled by and construed under the laws of the State
of California. To the extent legal questions arise concerning the sale or
lease of goods by On-Point to GTECH, the Uniform Commercial Code, as
adopted by the State of California, shall be the controlling law.
20. Legal Fees. In the event of the bringing of any action or suit by any
party hereto against the other by reason of any breach of any of the
covenants, conditions, agreements, or provisions on the part of the other
party arising out of this Agreement, the prevailing party shall be
entitled to have and recover from the other party all costs and expenses
of the action or suit, including reasonable attorneys' fees.
21. Binding on Successors. This Agreement shall bind and benefit the parties
hereto, their successors, affiliates, agents and assigns.
22. Severability. If any term, provision, covenant or condition of this
Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remaining provisions shall remain in full force and
effect.
23. Counterparts; Facsimile Signature. This Agreement may be executed in two
counterparts, each of which shall be deemed an original and together shall
constitute one and the same Agreement. This Agreement shall become binding
upon delivery of a facsimile or original signature by both parties.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
dates indicated below.
ON-POINT TECHNOLOGY SYSTEMS, INC.
Date: Sept. 16, 1998 By: /s/ Frederick Sandvick
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Frederick Sandvick,
Chairman and CEO
GTECH CORPORATION
Date: Sept. 15, 1998 By: /s/ Steven P. Nowick
-------- ------------------------------
Print Name: Steven P. Nowick
-----------------------
Title: Sr. VP and COO
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