Embee-MSA-2010

MASTER AGREEMENT

This Master Agreement (hereinafter referred to as the “Agreement”) is made by and between the following parties (hereinafter referred to collectively as “the parties”):

1. Embee Computer Design Group, Inc., dba Embee Technologies (hereinafter referred to as “Embee”), a business entity; and

2. The entity or individual described in any “Proposal” as “Customer,” (hereinafter referred to as “Customer”).

Each of the parties enters into this Agreement on behalf of themselves, their representatives, heirs, executors, administrators, trustees, predecessors, successors, affiliates, subrogors, subrogees, lessees, lessors, grantees, assignees, assignors, subsidiaries, parent corporations, agents, contractors, servants, officers, directors, members, shareholders, owners, alter egos, attorneys, general partners, limited partners, and representatives.

1. Recitals

1.01 WHEREAS, the Parties hereto desire to do business with each other based on the Proposal, which document is incorporated herein by reference, and;

1.02 WHEREAS, the Parties hereto desire to that the parameters of their business relationship be clearly defined by this Agreement;

1.03 THEREFORE, the parties have mutually agreed to the following terms and conditions:

2. Deliverables

Embee shall deliver to Customer the work described in the Proposal as set forth therein.

3. Compensation

Customer shall pay Embee for the deliverables as set forth in the Proposal. If Customer does not pay sums of money as and when they become due and outlined herein, a late charge of 1.5% for each month or part of each month following the invoice date during which the invoice remains unpaid will be added to the remaining balance. All credit card transactions will incur a 3% processing fee that is charged to the client.

4. Customer Responsibilities

It is the Customer’s sole and exclusive responsibility to provide and ensure sufficient access to the location set forth in the Proposal, so that Embee may accomplish the work set forth therein within the time parameters as specified. Customer understands and agrees that failure by Customer to provide Embee with sufficient access may and most likely will result in delays for the completion of the work. Customer is further exclusively responsible for reporting any problems to Embee as they arise, so that Embee may address them in as timely a manner as possible.

5. Effective Date and Custody of Originals

This Agreement shall be effective as of the date of the latest signature on the Proposal. The original shall be maintained by Embee.

6. Independent Contractor Status

Embee and Customer shall be independent contractors with respect to each other. Nothing in this Agreement shall be construed so as to constitute any employment arrangement or any partnership or joint venture between the parties. Neither Customer nor any of its agents, consultants, representatives, affiliates or subcontractors shall be considered as having employment status with Embee or being entitled to participate in any plans, arrangements, or distributions by Embee pertaining to or in connection with any pension, stock, bonus, profit-sharing, or similar benefits that Embee may have for its employees. Customer acknowledges that Embee has no obligations with respect to Customer and its agents, representatives and subcontractors which Embee may otherwise have at law with respect to employees of Embee.

7. Nondisparagement

Neither party to this Agreement shall disparage the other to any third party in any manner.

8. Binding on Successors and Assigns

This agreement and the promises and covenants herein shall be binding on, inure to the benefit of, and be enforceable by any and all predecessors, heirs, beneficiaries, successors, assigns and transferees of each of the Parties hereto.

9. Captions

The captions used herein are for identification purposes only and are not a part of this Agreement.

10. Disputes to be Arbitrated Rather Than Heard by Court or Jury

10.01 Agreement to Arbitrate

Subject to section 27, below, and in exchange for the benefits of the speedy, economical and impartial dispute resolution procedure of arbitration, Embee and Customer forego their right to resolution of disputes in a court of law by a judge or jury, pursuant to the Federal Arbitration Act and/or California Code of Civil Procedure §§1281 et seq.

10.02 Disputes Covered by Arbitration

Any controversy or claim arising out of or in any way related to Customer’s business relationship with Embee or its termination, and otherwise cognizable in a court of law, shall be submitted to final and binding arbitration. This obligation includes, but is not limited to any contractual, common law, tort or statutory claims, and claims against individual officers, directors, managers, supervisors, employees and agents of Embee, in their capacity as such, as well as claims against Embee.

10.03 Disputes Not Covered by Arbitration

Only the following claims are excluded from this Agreement:

10.03.1 claims by Customer which are subject to special exclusive administrative procedures;

10.03.2 claims based upon any other Agreement between Customer and Embee, the terms of which contain its own arbitration procedures; and

10.03.3 claims within the exclusive primary jurisdiction of the National Labor Relations Board.

10.04 Right to Injunctive Relief

Either party may, without waiving arbitration rights and duties under this Agreement, seek preliminary injunctive relief (including temporary restraining orders) or other provisional relief from a Court upon the same basis and showing as would other litigants, together with a showing that any potential arbitration award would be rendered in effectual without such provisional relief. In the case of a dispute involving the enforcement of §§3-8 or 40-42 of this Agreement, it is hereby stipulated and agreed by and between the parties hereto that the damages to the non-breaching party would be so severe, imminent and impossible to accurately calculate that mere monetary damages would be insufficient, and that said non-breaching party would be entitled to an immediate injunction against the breaching party without the need to post a bond, and without the need to prove anything further, said damages being stipulated hereto.

10.05 Right of Access to Governmental Agencies

While Embee and Customer agree to arbitrate the merits of all unresolved claims, Customer still has the right to file complaints or charges with, or cooperate with, appropriate governmental agencies.

10.06 Statutes of Limitations, Scope of Remedies, and Substantial Law

Statutes of limitations, scope of remedies, and substantial law (including any requirement for prior exhaustion of administrative agency relief) shall be the same as would be applicable were any action to be brought in Court. Any claim or demand for arbitration must be served upon the responding party within ninety (90) days of the completion of the filing of all initial pleadings and responses thereto, and must fairly put the opposing parties on notice as to the factual and legal basis for the claim(s) as adjudged by California case law interpreting notice pleading requirements.

10.07 Administration of Arbitration

The arbitration shall be held in Orange County, California, and administered by JAMS/Endispute in accordance with the then-existing JAMS/Endispute Arbitration Rules and Procedures for Commercial Disputes. Copies of such rules are available online. If for any reason JAMS/Endispute is unwilling or unable to handle the dispute, then the dispute shall be processed pursuant to California Code of Civil Procedure §§ 1282-1284.2.

10.08 Selection of Arbitrator

The arbitrator shall be selected by mutual agreement of the parties, or pursuant to the appointment procedures of JAMS/Endispute.

10.09 Authority of Arbitrator

The arbitrator shall have exclusive authority to resolve any dispute relating to the arbitrability of any claim or matter, including any dispute regarding the applicability, formation or enforcement of this Agreement, to hear and rule upon pre-hearing disputes, and shall entertain and rule upon motions for summary adjudication or summary judgment and motions in limine, and in doing so shall apply the California Code of Civil Procedure applicable to such motions.

10.10 Right to Discovery

Each party shall have the right to engage in discovery pursuant to the parameters defined in California Code of Civil Procedure section 94, excepting all references to California Code of Civil Procedure section 95.

10.11 Right to Representation and Confidentiality

Each party may, but is not required to, be represented by licensed counsel of its choice. The hearing and all filings and other proceedings shall be treated in a private and confidential manner by the arbitrator and all parties and representatives, and shall not be disclosed except as necessary for any related judicial proceedings.

10.12 Arbitration Costs

Subject to awards of fees and costs to the prevailing party as discussed in section 19, hereinbelow, the Parties shall initially be equally responsible for all costs of the arbitration services, including the fees and costs of the arbitrator and court reporter fees.

11. Narrowing of Overbroad Clauses

If any provision of this Agreement shall be determined, under applicable law, to be overly broad in duration, substantive scope, or otherwise, such provision shall be deemed narrowed to the broadest term permitted by applicable law and shall be enforced as so narrowed.

12. General Mutual Warrantees and Representations

In further consideration of the terms and conditions as set for the herein, the Parties also agree, represent and warrant as follows:

12.01 Sole Authority to Execute

Each party hereto expressly warrants and represents that as of the date of this Agreement, they have the sole right and authority to execute this Agreement on their own behalf and on behalf of their representatives or those they represent, and that they have not sold, assigned, transferred, conveyed, or otherwise disposed of any claim or demand relating to any rights surrendered by virtue of this Agreement.

12.02 Legal Competence

Each party hereto expressly warrants and represents that the person executing this Agreement on his, her or its behalf is legally competent to and is authorized to enter into this Agreement and to bind said party to his, her or its representations, terms, conditions and covenants as set forth herein.

12.03 Transfer or Assignment

The Parties represent and warrant that they have not sold, assigned or otherwise transferred any claims or rights settled or released pursuant to this Agreement. The Parties further represent and warrant that they shall not, at any time in the future, attempt to sell, assign or otherwise transfer any claims or rights settled or released pursuant to this Agreement. The Parties further agree that any such sale, assignment or other transfer constitutes a modification of this Agreement, which modification is void without the written assent of both Parties.

13. Assumption of Risk

In entering into this Agreement, each party assumes the risk of any misrepresentation, concealment, or mistake except for the representations and statements expressly made in this Agreement. If any party should subsequently discover that any fact relied upon by him, her or it in entering into this Agreement is untrue, or that any fact or facts were concealed from him, her or it, or that his, her or its understanding of the facts or of the law was incorrect, or that the law presently in effect has changed in a manner which would otherwise affect such party's rights, such party shall not be entitled to any relief whatsoever in such connection or otherwise, including, without limitation on the intended generality of the foregoing, any alleged right or claim to set aside or rescind this Agreement. This Agreement is intended to be and is final and binding between the parties, regardless of any claims of fraud, misrepresentation, promise made without the intention of performing, concealment of fact, mistake of fact or law, change of law, or of any other circumstance.

14. Sufficiency, Mutuality and Receipt of Consideration Acknowledged

The parties hereby stipulate, acknowledge and agree that the consideration had and received for this Agreement is sufficient, mutual, and has been received by the parties.

15. Entire Agreement

This Agreement contains the entire agreement and understanding concerning its subject matters between the parties, and supersedes and replaces any prior negotiations and any proposed agreement and agreements, written and oral. Each of the parties acknowledges that no other party, nor any agent or attorney of another party, has made any promise, representation or warranty whatsoever, express or implied, not contained herein, concerning the subject matters hereof, to induce them to execute this Agreement in reliance upon any such promise, representation or warranty not contained herein.

16. Jurisdiction

The parties hereby stipulate and agree that jurisdiction for the resolution of any dispute arising from this Agreement, subject to the arbitration provisions set forth in §§10, et seq., above, is proper in the State of California.

17. Venue

The parties hereby stipulate and agree that the venue for the resolution of any dispute arising from this Agreement, subject to the arbitration provisions set forth in §§10, et seq., above, is proper in the Superior Court of State of California, County of Orange, Harbor District.

18. Choice of Law

This Agreement is made and entered into in the State of California, and shall in all respects be interpreted, enforced and governed by and under the laws of the State of California. In the event that any statute, judicial precedent or other laws of the State of California shall require or otherwise dictate that the laws of another State or jurisdiction be applied in any such action or proceeding, they shall be superseded by this paragraph and the remaining laws of the State of California shall nonetheless be applied in such action or proceeding.

19. Attorneys’ Fees and Costs

The parties hereby stipulate and agree that in resolving any dispute arising from this Agreement, the party adjudged to be in breach or at fault shall pay the other party’s attorneys’ fees and all costs related thereto, subject to the arbitration provisions set forth in the separately printed and signed Agreement to Arbitrate. In the event that both parties are adjudged to be in breach, each party shall bear its own attorneys’ fees and any costs related thereto.

20. Waiver or Modification

Neither this Agreement, nor any provision thereof, can be modified or waived in any way, except by an agreement in writing signed by each of the parties affected thereby, expressly consenting to such modification or waiver.

21. Notices

21.01 General Provisions

All notices must be in writing to be effective. Notices may be personally delivered, or sent by facsimile, registered, certified or overnight mail, return receipt requested, to the address or facsimile number of the receiving party as set forth in this document or to such other address or facsimile number as the sending party shall have actually received for such purpose prior to dispatch of the notice in question. Notices sent in conformity with this paragraph shall be considered effective three days after dispatch. Facsimile notices will be effective on dispatch on the condition that facsimile notices are confirmed by mail. Hand delivered notices are effective on delivery.

21.02 Contact Information

Either party may from time to time change its address by giving the other party notice of the change in accordance with this section. Any notice or other communication required or permitted to be given hereunder shall be delivered as provided above to the following:

If to Embee:

Embee Technologies

Attention: Luke Slymen, President

16592 Millikan Avenue

Irvine, California 92606

Telephone: (949) 266-1700

Facsimile: (949) 435-1595

Copy to Counsel:

John A. Safyurtlu, Esq.

General Counsel, PC

620 Newport Center Drive, 11^th Floor

Newport Beach, California 92660

Telephone: (949) 892-1080

Facsimile: (949) 892-1081

If to Customer:

As set forth on the Proposal.

22. Severability

The parties and signatories, and each of them, agree and acknowledge that if any portion of this Agreement is declared invalid or unenforceable by a final judgment of any Court of competent jurisdiction, such determination shall not affect the balance of this Agreement, which shall remain in full force and effect, as such invalid portion shall be deemed severable.

23. Counterparts

This Agreement may be signed in one or more counterparts, which shall each constitute an original of this Agreement. It will be deemed effective when each party to this Agreement have in their possession counterparts which together bear the dated signatures of each party.

24. Due Diligence

Each party to this Agreement represents and warrants to all other parties to this Agreement that he, she or it has investigated the facts pertaining to the dismissal set forth herein, and of all matters pertaining thereto, as he, she or it deems necessary.

25. Cooperation in Drafting

Each party has cooperated in the drafting and preparation of this Agreement. Hence, in any construction of this Agreement, it shall not be construed against any party.

26. No Waiver

No delay or failure on the part of any party hereto in exercising any right, power or privilege under this Agreement or under any other documents or instruments given in connection with or pursuant to this Agreement shall impair any such right, power or privilege or be construed as a waiver of any event of default hereunder or any acquiescence therein. No waiver shall be valid against any party hereto unless made in writing and signed by that party, and then only to the extent expressly specified therein.

27. Mandatory Mediation

This section is a copy of the Agreement to Arbitrate that is printed separately and signed by Customer. This section is included here for information and completeness purposes only, and is not intended in any way to replace or supplant the separately printed and signed Agreement to Arbitrate. Before invoking the dispute resolution mechanism set forth in §§10, et seq., above or in the separately printed and signed Agreement to Arbitrate, a party shall serve on the other party to the Agreement (a) written notice of the claim, specifying the exact amount claimed and the provision of the Agreement or other authority for the claim; and (b) a copy of all supporting documents. Within thirty (30) business days after service, the responding party shall serve on the serving party (a) a written response, setting out its position and specifying the contract or other provisions relied on; and (b) a copy of all supporting documents. Within fifteen business days after service of the response, the parties shall meet in Irvine, California, to discuss resolution of the claim. The written claim notice and response and the documents produced, but not the subsequent discussion, shall be admissible in any subsequent proceeding. The parties shall, in good faith, use their best efforts to resolve any issues which gave rise to the meeting at the meeting, with the goal of successfully completing this Agreement as originally contemplated. After the meeting, should a resolution not be achieved, either party may invoke the dispute resolution procedure set forth in §§10, et seq., above and in the separately printed and signed Agreement to Arbitrate.

28. Term and Termination

28.01 This Agreement will become effective on the date last shown on signatory page of the Proposal, and will continue in effect through the completion of the work set forth therein.

28.02 Embee, may, at its sole option terminate this Agreement (including the Proposal), or cease performance of any duty required by this Agreement (or the Proposal) in the event that an invoice submitted by Embee is more than thirty (30) days past due.

28.03 At any time prior to Embee ordering the items listed on the Proposal, for Customer, Embee may, on written notice to Customer, cancel this Agreement for any or no reason, and refund Customer's deposit monies.

28.04 At any time prior to Embee ordering the items listed on the Proposal, for Customer, Customer may, on written notice to Embee, cancel this Agreement or the Proposal, for any or no reason, and Embee shall refund Customer's deposit monies minus services rendered.

28.05 In the event of any termination of this Agreement, §§3-8, 10, 13, 15-19, 21, 24-27, 29-36, and 38-42 hereof shall survive and continue in effect.

29. Warranty Assignment and Exclusion of Implied Warranties

29.01 All manufacturer’s warranties, if any, pass directly from Embee to Customer for materials listed on the Proposal.

29.02 All warranty requests will be processed directly through manufacturer from Customer.

29.03 EXCEPT AS SPECIFICALLY PROVIDED ABOVE, EMBEE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY AND/OR AS TO THE FITNESS OF THIS EQUIPMENT FOR ANY PARTICULAR USE OR PURPOSE. EMBEE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DIRECTLY OR INDIRECTLY, ARISING FROM THE USE OF SUCH EQUIPMENT OR FOR ANY CONSEQUENTIAL DAMAGES RELATED THERETO.

30. Limitations

30.01 Any claim for of any kind will be limited to the compensation listed on the Proposal. Customer releases Embee from all claims now existing or hereafter related to this agreement and/or the performance thereof, including, but not limited to, those claims arising from implied warranty, tort, strict liability, breach of statutory duty, and direct and vicarious negligence and for any other cause.

30.02 Embee is not liable for lost profits, punitive damages, multiplied actual damages, incidental or consequential damages, under any theory of law, including but not limited to breach of contract, breach of implied warranty, tort, strict liability, breach of statutory duty, and direct and vicarious negligence. All such damages are hereby released and waived. Under all circumstances, Embee’s liability to Customer, either directly or by way of indemnification under any theory, shall be limited to the sum paid by Customer to Embee pursuant to this Agreement.

30.03 Embee and its employees shall not be liable for any damage or expenses resulting from actions or omissions of Embee or its employees, undertaken in good faith, in reliance upon Customer’s instructions or directions.

30.04 Under no circumstances shall any of Embee’s employees be personally liable for any claim arising out of or related to this Agreement, the equipment provided for herein, or the services rendered herefrom.

30.05 All limitations set forth in this section are expressly limited as set forth in paragraph 11, above.

31. Security Interest and Defaulted Terms

Customer grants Embee a Security Interest in all property of Customer to secure all amounts now due or due in the future under this Agreement. Customer irrevocably grants Embee the right to sign the name of Customer to any documents necessary or desirable to perfect this Security Interest. Customer will reimburse Embee on demand for the cost of any filing fees related to perfecting this interest, as needed. If the price is not paid when due, the unpaid balance thereof will bear interest at the rate of 18% per annum, or the highest amount allowed by law, whichever is less, and Embee may declare the sums owing it from Customer, whether or not arising from this document, immediately due and payable. Customer agrees to pay Embee’s attorneys’ fees if Embee engages an attorney to enforce its rights under this Agreement or to any claim related to or pertaining to this Agreement. Embee has no duty to perform under this Agreement if Customer owes any overdue amount to Embee, and Embee may lock or otherwise disable equipment until all amounts are paid in full. Equipment may contain locks for that purpose.

32. Excusable Delays

Neither party shall be considered to be in default hereof or liable for any delay, failure in performance, or interruption of service resulting directly or indirectly from acts of God, civil or military authority, civil disturbance, declared or undeclared war, acts of terrorism, strikes, labor unrest, fires, catastrophes, delays in transportation, inability to obtain labor, materials, failures of suppliers, or any event beyond its reasonable control.

33. Liability and Indemnity

33.01 Customer agrees to indemnify and hold Embee harmless for any liability incurred by Customer as a result of any cause of action, breach of contract, negligence or other tort of Customer, arising from, related or pertaining to, the performance or attempted performance by Embee of the terms and provisions of this document. Customer agrees to pay for all reasonable attorneys’ fees and cost of suit incurred by Embee in defending any suits arising from, related or pertaining to, the performance by Embee of the provisions of this document.

33.02 Customer further agrees to indemnify and hold Embee harmless for any lawsuits brought by third parties arising from, related or pertaining to, the equipment or the use thereof. Customer agrees to pay for all reasonable attorneys’ fees and cost of suit incurred by Embee in such a lawsuit.

34. Incorporation of Other Documents

This Agreement is entered into in conjunction with, and is intended to incorporate, as though fully set forth herein, the following Documents:

34.01 Proposal

34.02 Agreement to Arbitrate

35. NOTICE TO OWNER

Under the California Mechanics' Lien Law, any contractor, subcontractor, laborer, materialman or other persons or entity who helps to improve your property and is not paid for his or her work or supplies, has the right to place a lien on your home, land, or property where the work was performed and to sue you in court to obtain payment. This means that after a court hearing, your home, land, and property could be sold by a court officer and the proceeds of the sale used to satisfy what you owe. This can happen even if you have paid your contractor in full if the contractor's subcontractors, laborers, or suppliers remain unpaid. To preserve their rights to file a claim or lien against your property, certain claimants such as subcontractors or material suppliers are each required to provide you with a document called a "Preliminary Notice." Contractors and laborers who contract with owners directly do not have to provide such notices since you are aware of their existence as an owner. A preliminary notice is not a lien against your property. Its purpose is to notify you of persons or entities that may have aright to file a lien against your property if they are not paid. In order to protect their lien rights, a contractor, subcontractor, supplier, or laborer must file a mechanics' lien with the county recorder which then becomes a recorded lien against your property. Generally, the maximum time allowed for filing a mechanics' lien is 90 days after substantial completion of your project. Under the law, you may protect yourself against such claims by filing, before commencing such work of improvement, an original contract for the work of improvement or a modification thereof, in the county recorders office where the property is situated and requiring that a contractor's payment bond be recorder in such office. Said bond shall be in an amount not less than 50 % of the contract price and shall, in addition to any conditions for the performance of the contract, be conditioned for the payment in full of the claims of all persons furnishing labor, services, equipment or materials for the work contracted.

36. 20-Day Preliminary Notice

Embee reserves the right to execute a 20-day preliminary notice on any or all real property at any point during the job regardless of the scope or size of the job. This action is for the sole purpose to protect the interest of Embee, along with it's employees, subcontractors, vendors, and suppliers; should the contractor or customer refuse to pay the agreed upon amount of the contract.

37. Professional Discretionary Option

Embee reserves the right to make changes, alterations, and corrections, without customer approval or acknowledgment, to the drawings, plans, and construction of project, at its' discretion as seen fit. Often Embee has to make these changes during final review and layout, prior to production.

38. Materials

All material is guaranteed to be as specified. All work is to be completed in a workmanship manner according to Embee’s standards, practices and years of practical work experience. Any deviation or alteration from above specifications involving extra costs will be executed only upon written orders, and will become an extra charge over and above this contract. This agreement is contingent upon labor strike, accidents, or delays beyond our control. This contract is subject to acceptance within 3 days and is void thereafter at the option of the undersigned.

39. Disclosure

Failure by a contractor without lawful excuse to commence (begin) work within 20 days from the approximate installation/ commencement date specified in this contract is a violation of the Contractors' State License Law. Contractors are required by law to be licensed and regulated by the Contractor's State License Board which has jurisdiction to investigate complaints against contractors if a complaint regarding a patent act or omission is filed within four years of the date of the alleged violation. A complaint regarding a latent act or omission pertaining to structural defects must be filed within 10 years of the date of the alleged violation. Any questions concerning a contractor may be referred to the registrar of the board whose address is: Registrar, Contractors' State License Board, P.O. 26000 Box, Sacramento, California 95826. Upon satisfactory payment being made for any portion of the work performed, the contractor shall, upon client request, prior to any further payment being made, furnish to the person contracting for the home improvement a full and unconditional release from any claim or mechanic's lien pursuant to Section 3114 of the Civil Code for that portion of the work for which payment has been made.

40. Confidential Information

40.01 Definition

The parties hereto understand and agree that, during the course of this Agreement, they have received and/or will continue to receive information or material of other parties hereto, which is deemed by the originating party in its sole discretion to be confidential, including proprietary information and/or information and/or information of a “trade secret” nature. All of such information and material will be referred to herein as the “Confidential Information.” Such Confidential Information can exist in any form, including oral or written statements, information remembered, information stored electronically and information embodied in objects or processes. Such Confidential Information includes any information or material which has not been made available generally to the public and was or is: (i) generated or collected by or utilized in the operations of any party hereto and which relates to the actual or anticipated business or research and development of said party; or (ii) suggested by or resulting from any task assigned or work performed by either any party hereto during the term of this Agreement or with which any party hereto becomes or became familiar during the term of this Agreement. Further, in order to qualify as “Confidential Information,” the information at issue must be clearly marked and identified as being of a confidential or proprietary nature:

40.01.1 Information about either party’s programs, plans and strategies, including their business, development, technological, capital investment, marketing, advertising, sales and financial programs, plans and strategies;

40.01.2 Information about existing, planned, proposed or developing methods, programs, resources, products or services, including design, development, engineering, technology, features, suppliers, systems, combinations, applications, packaging, fees, rates, prices, charges, or internal costs as to either party;

40.01.3 Customer or prospect lists, customer requirements or preferences or other customer data developed or collected by either party hereto;

40.01.4 Information about contract negotiations or contractual agreements with customers, investors, lenders, producers, suppliers or Customers, including bids, proposals, packages, strategies, plans, costs, prices, profit margins, financing or terms;

40.01.5 Financial, account, trading or cost information and projections concerning either party hereto which they have agreed or determined to keep confidential;

40.01.6 Information obtained from producers, customers, suppliers or others which either party hereto has agreed or determined to keep confidential;

40.01.7 Information about either party’s transactions, including proposed transactions such as projects, purchases, mergers, joint ventures, partnerships, acquisitions or disposition of properties, equipment, assets or stock;

40.01.8 Information about other companies, particularly where the value of the securities of other companies is likely to be influenced by actions of either party hereto;

40.01.9 Information relating to personnel, management changes, human resources and payroll matters, including salary/compensation data.

40.02 Non-Dissemination

No party to this Agreement shall, without the originating Party’s prior written permission, disclose to anyone any such Confidential Information, either during or at any time after the term of this Agreement. All parties hereto shall also guard against inadvertent disclosures, as by discussing such matters where they may be overheard by others, or by mentioning them in casual conversations with others.

40.03 Anti-Solicitation

Because of the inseparability of the Confidential Information from this Agreement, the parties hereto understand and agree that, consistent with the limitations of state law, for a period of at least one year following the termination (for any reason) of this Agreement no party to this Agreement shall (whether acting alone or in concert with others) solicit any other parties’ other customers to direct any business or prospective business or income from said party or to stop or alter the manner in which such other customers are doing business with said party. After the one-year period, the parties hereto shall remain bound by the other limitations of this Agreement, including those related to disclosure and use of Confidential Information.

40.04 Maintenance of Trade Secrets

The parties hereto understand and agree that they have a duty to respect the proprietary information and trade secrets of others. No party hereto shall disclose or cause to be disclosed to any other party hereto any trade secrets or other information which that party knows to be confidential and proprietary to others.

41. Inventions and Intellectual Property

41.01 Definition

For purposes of this Agreement, inventions and intellectual property (hereinafter collectively referred to as “Developments”), shall include any idea, invention, or design of a useful article (whether the design is ornamental or otherwise), computer program and related documentation, and other work of authorship made or conceived during the term of this Agreement solely or jointly by Customer, or created wholly or in part by Customer, whether or not such Developments are patentable, copyrightable or susceptible to other forms of protection, and provided the Developments are: (i) are related to the actual or anticipated business or research or development of Embee; or (ii) are suggested by or result from any task performed for or on behalf of Embee. In the case of any “other work of authorship,” such assignment shall be limited to those works of authorship which meet both conditions (i) and (ii) above. All Developments shall be considered a “work for hire.”

41.02 Assignment

Customer hereby assigns and agrees to assign effective upon the making or conception to Embee Customer’s entire right, title and interest in any Developments as defined hereinabove.

41.03 Representation as to Pre-existing Developments

Customer understands that Customer is affirmatively representing Customer has no such Developments unless Customer has listed them separately and attached that list to the Proposal, which attachment is signed by Embee.

41.04 Prompt Disclosure and Further Documents

In connection with any of the Developments assigned by the preceding paragraphs, (i) Customer shall promptly disclose them to Embee’s management; and (ii) Customer shall, on Embee’s request, promptly execute a specific assignment of title to Embee or its designee and do anything else reasonably necessary to enable Embee or its designee to secure a patent, copyright or other form of protection therefor in the United States and in other countries.

41.05 Disclosure as to Pre-existing Developments

Customer has listed separately and attached to the Proposal, which attachment is signed by Embee, all Developments in which Customer has any right, title or interest, and which were previously made or conceived solely or jointly by Customer, or written wholly or in part by Customer, whether or not previously identified to Embee. Customer understands that he/she/it is affirmatively representing that Customer has no such Developments unless he/she/it has listed separately and attached to the Proposal, which attachment is signed by Embee. Note: Customer also understands that it is in Customer’s interest to establish that any of the above were made, conceived or written before this Agreement. Customer also understands that he/she/it should not disclose any pre-existing Developments in detail, but should rather identify them only by the titles and dates of documents describing them. If Customer wishes to interest Embee in any of them, Customer knows he/she/it should contact the President of Embee, who will provide Customer with instructions for submitting the pre-existing Developments to Embee.

42. Hiring of Embee’s Employees

Customer acknowledges that Embee provides a valuable service by identifying and assigning personnel for Customer’s work. Customer further acknowledges that Customer would receive substantial additional value, and Embee would be deprived of the benefits of its work force, if Customer were to directly hire Embee’s employees. Therefore, without the prior written consent of Embee, Customer shall not, directly or indirectly, solicit, recruit or hire any employee(s) of Embee until one (1) year after the completion of the installation of the last equipment or performance of the last service listed on the Proposal. In the event of a breach of this section, Embee, in addition to all its other rights and remedies under this Agreement and at law and equity, shall be entitled to, and Customer shall pay to Embee, without defense or counterclaim, two (2) times the annual salary of the employee(s) wrongfully hired.

43. No Returns

Any sale made pursuant to this Agreement or Proposal is final upon Embee ordering the items listed on the Proposal for Customer. Under no circumstances may any hardware, software or equipment be returned to Embee for any reason.

44. Adequate Inspection and Independent Evaluation

Customer hereby affirmatively acknowledges that it has conducted an adequate evaluation of the hardware, software, equipment and/or services contemplated by this Agreement and any Proposal thereto. Customer further acknowledges that it has asked all questions needed to inform itself of the capabilities and limitations of hardware, software, equipment and/or services contemplated by this Agreement and any Proposal thereto and has received satisfactory answers to said questions. Customer further acknowledges that upon request was given the opportunity to see, inspect and evaluate all hardware, software, equipment and/or services contemplated by this Agreement and any Proposal thereto, as well as any and all ancillary products associated therewith and that all such materials meet all of customer's requirements. Customer further acknowledges that it is in a better position to know and understand the requirements and capabilities needed for a system to operate properly in its own business than is Embee.

45. Qualification

Customer certifies that it has personnel who are qualified to make purchase decisions for the types of hardware, software, equipment and services listed on the Proposal. Customer further certifies that these qualified personnel are the ones who have conducted the adequate inspection referred to hereinabove.

46. Acceptance of Limitation

Customer understands that it is impossible for Embee to show every aspect of all of the hardware, software, equipment and/or services contemplated by this Agreement and any Proposal thereto that customer is purchasing and that it is therefore customer’s responsibility to ensure that said products meet all of customer’s requirements.

47. Defective Merchandise

Customer is responsible for inspecting each individual item of equipment within ten (10) days of its receipt. Claims for defective or damaged equipment, shortages, delays, or failures in shipment or delivery or for any other cause shall be deemed waived and released by the Customer as to each individual item of equipment, unless made in writing within 10 days after receipt of each individual item of equipment listed on the Proposal. In no case is equipment to be returned without first obtaining Embee’s permission. The notification sent to the Embee shall state the full particulars in support of the Customer’s claim. Customer shall give Embee 14 days from the date Embee received Customer’s written notice to investigate Customer’s claims.

48. Title

The original and all copies of any computer program, modification, correction, or enhancement to any computer program, documentation relating thereto, and all inventions, systems, processes, improvements and patentable ideas, which were or are later conceived by Embee alone or with others in whole or in part are the sole property of Embee. All work performed by Embee now or hereafter under this document or otherwise will not be considered a work for hire, and Embee will own all copyrights.

49. Liquidated Damages and Injunctive Relief

49.01 Customer agrees that violation of any of the terms of this Agreement will damage Embee in such a manner and to such a degree that (a) the amount of damages may be difficult, if not impossible, to ascertain and (b) monetary damages at law may be insufficient to adequately compensate Embee for the harm done.

49.02 In the event of a breach of this Agreement by Customer, Embee is entitled to require, at its’ sole discretion and election, liquidated damages from Customer in the amount of three (3) times the total agreed-to price. This provision is not intended by either party to be punitive in nature, but is rather merely an effort by the parties to fix damages at some readily ascertainable amount. Furthermore, the election by Embee of these liquidated damages shall not act as a bar to proceeding forward with any other claim for damages, nor shall this election (or an award resulting therefrom) be used or interpreted as a waiver or setoff of any other measure of damages which Embee, in its’ sole and exclusive discretion, may chose to pursue.

49.03 In the event of a breach of this Agreement by Customer, Embee is further entitled to any form of injunctive relief it may seek, including, but not limited to, temporary restraining orders and/or preliminary injunctions. In seeking such injunctive relief, Embee is not required to produce any evidence of actual or potential damage or harm, as such damages are stipulated to herein by Customer. Similarly, in seeking such injunctive relief, Embee is not required to produce any evidence of actual or potential breach beyond a claim for said breach unto itself. Finally, in seeking such injunctive relief, Embee shall not be required to post a bond of any amount for any reason.

50. No Representations or Warranties of 100% Error-Free Operation

Embee makes no representations that the equipment will operate properly 100% of the time, nor that it will operate error-free.

51. Prevailing Wage