EXHIBIT 10.22
AGREEMENT
THIS AGREEMENT (the "Agreement") is entered into as of the 27th day of
September, 2004, by and between Xxxxxxx Energy, LLC, a limited liability company
organized under the laws of New Hampshire ("Xxxxxxx"), and Cyber Defense
Systems, Inc. and Cyber Aerospace Corp. both Florida corporations ("Purchaser").
In consideration of the mutual promises made herein, the parties agree as
follows:
1. ORDERS AND CONTRACTS
The terms and conditions set forth in this Agreement shall govern all
engineering services performed by Xxxxxxx for Purchaser under any order or
contract.
2. SCOPE OF WORK
Xxxxxxx shall provide engineering services, including the supply of drawings,
specifications, technical data, and know-how, as agreed to within the order or
contract, in accordance with its ordinary standards of practice.
If necessary, Xxxxxxx shall furnish service personnel to make any inspections
and examinations required to perform the engineering services. The Purchaser
shall pay for such engineering services in accordance with those rates and
expenses in effect at the time of performance and upon such terms and conditions
as Xxxxxxx ordinarily furnishes such services for the research of airships and
Unmanned Aerial Vehicles (UAV"s) power and lifting systems.
3. DELIVERY
Engineering services delivery dates shall be interpreted as estimated and in no
event shall such dates be construed as falling within the meaning of "time is of
the essence".
4. INTELLECTUAL PROPERTY RIGHTS
All inventions, patents, copyrights, trademarks, trade secrets and know-how,
including proprietary design and manufacturing technology, (Intellectual
Property or "IP") developed as a result of the engineering services under this
Agreement shall be owned exclusively by Purchaser. Xxxxxxx claims ownership
rights to all IP that has been previously developed by Xxxxxxx. To the extent
any such Xxxxxxx IP is used as a basis for the engineering services to be
provided to the Purchaser under this Agreement, Xxxxxxx will offer an exclusive
license to use such Xxxxxxx IP in connection with any IP developed as a result
of the engineering services under this Agreement.
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5. ASSIGNMENT
No party may transfer a resulting order or contract or assign either this
Agreement or any of its rights, interests, or obligations hereunder without the
prior written approval of the other party; provided, however, that the Purchaser
may, without need of consent of Xxxxxxx (i) assign any or all of its rights and
interests hereunder or any resulting order or contract to its parent corporation
or one or more of any of its subsidiary corporations or sister corporations
under common control with its parent corporation.
6. WARRANTY
Xxxxxxx warrants that any equipment manufactured by it and delivered hereunder
("Equipment") will be free of defects in material and workmanship for a period
of twelve months from the date of placing the Equipment in operation or eighteen
months from the date of shipment, whichever shall first occur. The Purchaser
shall be obligated to promptly report any failure to conform to this warranty,
in writing to Xxxxxxx within said period, whereupon Xxxxxxx shall, at its
option, correct such nonconformity by suitable repair to such Equipment or,
furnish a replacement part F.O.B. point of shipment, provided the Purchaser has
stored, installed, maintained and operated such Equipment in accordance with
good industry practices and has complied with specific recommendations of
Xxxxxxx. Accessories or equipment furnished by Xxxxxxx, but manufactured by
others, shall carry whatever warranty the manufacturers have conveyed to Xxxxxxx
and which can be passed on to the Purchaser. Xxxxxxx shall not be liable for any
repairs, replacements, or adjustments to the Equipment or any costs of labor
performed by the Purchaser or others without Xxxxxxx'x prior written approval.
The effect of corrosion, erosion and normal wear and tear are specifically
excluded.
Engineering services provided by Xxxxxxx shall be in accordance with generally
accepted industry standards.
Due to the developmental nature of the materials and engineering services to be
provided, no performance warranties or guarantees of any kind are provided.
Xxxxxxx makes no other warranty or representation of any kind whatsoever,
expressed or implied, except that of title, and all implied warranties of
merchantability and fitness for a particular purpose are hereby disclaimed.
Correction by Xxxxxxx of nonconformities whether patent or latent, in the manner
and for the period of time provided above, shall constitute fulfillment of all
liabilities of Xxxxxxx for such nonconformities, whether based on contract,
warranty, negligence, indemnity, strict liability or otherwise with respect to
or arising out of such Equipment.
The Purchaser shall not operate Equipment that is considered to be defective,
without first notifying Xxxxxxx in writing of its intention to do so. Any such
use of Equipment will be at the Purchaser's sole risk and liability.
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7. LIMITATION OF LIABILITY
The remedies of the purchaser set forth herein are exclusive, and the total
liability of Xxxxxxx with respect to this contract or the equipment and services
furnished hereunder, in connection with the performance or breach thereof, or
from the manufacture, sale, delivery, installation, repair or technical
direction covered by or furnished under this contract, whether based on
contract, warranty, negligence, indemnity, strict liability or otherwise, shall
not exceed the purchase price of the unit of equipment and/or services upon
which such liability is based.
Xxxxxxx and its suppliers shall in no event be liable to the purchaser, any
successors in interest or any beneficiary or assignee of this contract for any
consequential, incidental, indirect, special or punitive damages arising out of
this contract or any breach thereof, or any defect in, or failure of, or
malfunction of the equipment hereunder, whether based upon loss or use, lost
profits or revenue, interest, lost goodwill, work stoppage, impairment or other
goods, loss by reason of shutdown or non-operation, increased expenses of
operation, cost of purchase or replacement power of claims of purchaser or
customers or purchaser for service interruption whether or not such loss or
damage is based on contract, warranty, negligence, indemnity, strict liability
or otherwise.
8. NUCLEAR LIABILITY
In the event that the engineering services shall pertain to a nuclear facility,
the Purchaser shall arrange for insurance and indemnification protecting Xxxxxxx
against liability and hereby releases and agrees to indemnify Xxxxxxx and its
suppliers for any nuclear damage, including loss of use, in any manner arising
out of a nuclear incident, whether alleged to be due, in whole or in part to the
negligence or otherwise of Xxxxxxx or its suppliers.
10. EXCLUSIVE RELATIONSHIP
Xxxxxxx shall act as the exclusive engineering consulting firm to Purchaser and
will not perform engineering services for any other person or entity in the
field of design, assembly and construction of any low, medium or high altitude
airships and or UAV's for military or non-military applications while under
contract with Purchaser.
11. TERM
This Agreement shall commence on the date hereof and shall terminate upon the
first to occur of the following: (1) the parties execute a writing indicating an
intent to terminate the Agreement, or (2) a period of 6 months shall have
elapsed without any order or contract for engineering services having been given
by Purchaser to Xxxxxxx under this Agreement.
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12. GENERAL
(b) This Agreement (including the documents referred to herein) constitutes
the entire agreement between the parties and supersedes any prior
understandings, agreements, or representations by or between the parties,
written or oral, to the extent they related in any way to the subject matter
hereof.
(c) This Agreement shall be binding upon and inure to the benefit of the
parties named herein and their respective successors and permitted assigns.
(d) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together will constitute one
and the same instrument.
(e) The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(f) All notices, requests, demands, claims, and other communications
hereunder will be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given on the next business day if
delivered by a nationally recognized overnight courier with next business day
delivery requested, or on the third business day after it is sent by registered
or certified mail, return receipt requested, postage prepaid, and addressed to
the intended recipient as set forth below:
If to Xxxxxxx: Xxxxxxx Energy, LLC
00 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
If to Purchaser: Cyber Defense Systems, Inc.
0000 Xxxxx Xxxxxxx Xxx.
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Cyber Aerospace Corp.
0000 Xxxxx Xxxxxxx Xxx.
Xxxxx 000
Xxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Either party may change the address to which notices and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
(g) This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of New Hampshire without giving effect to any
choice or conflict of law provision or rule (whether of the State of New
Hampshire or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of New Hampshire.
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(h) No amendment of any provision of this Agreement shall be valid unless
the same shall be in writing and signed by both parties. No waiver by a party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
whether intentional or not, shall be deemed to extend to any prior or subsequent
default, misrepresentation, or breach of warranty or covenant hereunder or
affect in any way any rights arising by virtue of any prior or subsequent such
occurrence.
(i) Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
(j) Each Party shall bear its own costs and expenses (including legal fees
and expenses) incurred in connection with this Agreement and the transactions
contemplated hereby.
(k) Each of the parties submits to the jurisdiction of any state or federal
court sitting in the States of New Hampshire or Oklahoma, in any action or
proceeding arising out of or relating to this Agreement and agrees that all
claims in respect of the action or proceeding may be heard and determined in any
such court. Each of the parties waives any defense of inconvenient forum to the
maintenance of any action or proceeding so brought. Either party may make
service on the other party by sending or delivering a copy of the process to the
party to be served at the address and in the manner provided for the giving of
notices in Section 12(f) above. Nothing in this Section 12(k), however, shall
affect the right of any party to bring any action or proceeding arising out of
or relating to this Agreement in any other court or to serve legal process in
any other manner permitted by law or in equity. Each Party agrees that a final
judgment in any action or proceeding so brought shall be conclusive and may be
enforced by suit on the judgment or in any other manner provided by law or in
equity.
(o) If any action is brought to enforce, or to construe or determine the
validity of, any term or provision of this Agreement, the prevailing party shall
be entitled to reasonable attorney's fees and costs of the action.
(signatures follow)
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IN WITNESS WHEREOF, this Agreement has been executed by the
parties as of the date first written above.
Xxxxxxx Energy, LLC
By: /s/Xxxxx Xxxxxxx
---------------------------
Title: President
Cyber Defense Systems, Inc.
By: /s/Xxxxxxx Xxxxxxxx
---------------------------
Title:
Cyber Aerospace Corp.
By: /s/Xxxxxxx Xxxxxxxx
---------------------------
Title:
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