TECHNOLOGY COOPERATIVE AGREEMENT
Exhibit
10.15
This
Technology Cooperative Agreement (this “Agreement”) is made effective as of
March 24, 2006 (the “Effective Date”) by and between CASTion Corporation, a
corporation organized and existing under the laws of Commonwealth of
Massachusetts, having a principal address at 00 Xxx Xxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx 00000 XXX (“CASTion”) and ThermoEnergy Corporation, a corporation
organized and existing under the laws of the State of Arkansas, having a
principal address at 000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx Xxxx, XX
00000 (“ThermoEnergy”).
WHEREAS,
ThermoEnergy owns the exclusive worldwide rights to a certain patented ion
exchange technology called the Ammonia Recovery Process (ARP) which it currently
markets to municipal and industrial clients worldwide, and possesses proprietary
engineering know-how and trade secrets related to the ARP technology
(collectively, the “ThermoEnergy Technology”);
WHEREAS,
CASTion owns certain patent-pending R-Cast™ brand technology and possesses
proprietary engineering know-how and trade secrets (collectively, the “CASTion
Technology”);
WHEREAS,
ThermoEnergy is looking for new ways to increase market share either through
optimization of existing technology or finding new water treatment technologies
to offer its clients;
WHEREAS,
ThermoEnergy and CASTion have determined that combining the ThermoEnergy
Technology with the CASTion Technology (each independently a “System,” and each
combination a “Combined System”) offers operational and economic advantages for
certain potential clients greater than that of each System independently, and
that CASTion has the ability to design, engineer and construct the System and
Combined System;
WHEREAS,
ThermoEnergy and CASTion desire to enter into this Technology Cooperative
Agreement whereby CASTion will supply the ThermoEnergy Technology, the CASTion
Technology and the Combined System to ThermoEnergy to enable it to market to
potential clients worldwide the Combined System on an exclusive basis, and
the
CASTion System on a non-exclusive basis;
NOW,
THEREFORE, for and in consideration of the promises contained herein, and for
other good and valuable consideration, the receipt and adequacy of which it
is
hereby acknowledged, the parties hereto, intending to be legally bound, agree
as
follows:
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1.
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Systems
Supply.
ThermoEnergy shall fulfill all commercial contracts by purchasing
either a
System or a Combined System exclusively from CASTion subject to the
terms
and specifications set forth in a System Purchase Agreement (the
“System
Purchase Agreement”), which the parties shall negotiate in good faith for
execution prior to the date on which CASTion accepts the purchase
order to
which said System Purchase Agreement shall be
attached.
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2.
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License
to Construct and Fabricate.
ThermoEnergy grants to CASTion, subject to the terms set forth in
this
Agreement, the right to construct and fabricate the ThermoEnergy
Technology for the purpose of integrating it into the Combined System
for
sale to ThermoEnergy. ThermoEnergy represents and warrants that it
shall
provide to CASTion all information relating to the ThermoEnerngy
Technology required by CASTion to perform its obligations under this
Agreement.
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3.
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License
to Recall.
CASTion grants ThermoEnergy, subject to the terms set forth in this
Agreement, an exclusive, nontransferable (except as provided in
Section 7 herein), worldwide right and license, for the limited term
specified in this Agreement, to use, demonstrate, and sell the Combined
System, describe herein as supplied to it by CASTion, and a non-exclusive,
nontransferable (except as provided in Section 7 herein), worldwide
right and license, for the limited term specified in this Agreement,
to
use, demonstrate, and sell the CASTion System, described herein as
supplied to it by CASTion.
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4.
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Ownership
of Intellectual Property.
For purposes of this Agreement, the System Sales Agreement, and the
Non-Disclosure Agreements (the “NDA”) executed by and between the parties
on or about August 25, 2003 and January 11, 2005, which
agreements are incorporated herein and the non-disclosure obligations
under which are hereby made perpetual, “Intellectual Property” means all
rights of every nature relating to intellectual property, including
without limitation (i) all United States and foreign patents and
patent applications now or hereafter filed (including continuations,
continuations-in-part, divisionals, reissues, reexaminations, and
foreign
counterparts thereof), and all rights with respect thereto, (ii) all
trade secrets, (iii) all trademarks and trade names, and
(iv) all copyrights and renewals
thereof.
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a.
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ThermoEnergy
Intellectual Property.
All right, title and interest in and to the ThermoEnergy are and
shall
remain the sole and exclusive property of ThermoEnergy, subject to
the
rights and licenses granted herein. CASTion’s possession, installation, or
use of the ThermoEnergy Technology does not transfer to CASTion any
title
to ThermoEnergy Intellectual Property, and CASTion shall not acquire
any
rights to the ThermoEnergy Intellectual Property except limited rights
expressly set forth in this
Agreement.
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b.
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CASTion
Intellectual Property.
All right, title and interest in and to the CAStion Technology, and
any
Intellectual Property developed by CASTion in the process of designing,
manufacturing or testing the Combined Systems, are and shall remain
the
sole and exclusive property of CASTion, subject to the rights and
licenses
granted herein (collectively, the “CASTion Intellectual Property”).
ThermoEnergy’s possession, installation, or use of the Combined System
does not transfer to ThermoEnergy any title to CASTion Intellectual
Property and ThermoEnergy shall not acquire any rights to the CASTion
Intellectual Property except the limited rights expressly set forth
in
this Agreement.
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5.
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Term;
Termination.
This Agreement shall be effective as of the Effective Date and shall
continue in effect for three (3) years, shall automatically renew for
successive one (1) year terms thereafter unless terminated by either
party in writing within sixty (60) days prior to the expiration of
the then-current term. This Agreement may be terminated only if
(i) the parties are unable to agree on mutually satisfactory terms to
the System Sales Agreement, (ii) upon material breach Section 1,
2, 3, or 4 of this Agreement, unless such breach of Section 1, 2, or
3 is cured within thirty (30) days of receipt of written notice by
the breaching party, or (iii) if either party should file for
insolvency under the US Bankruptcy Protection Act. Upon termination,
the
licenses and rights granted herein shall expire immediately, and
each
party shall return to the other party any Confidential Information
of the
other in its possession. Sections 4 and 8 of this Agreement, the NDA,
and those provisions of the System Sales Agreements required by the
context, shall survive termination of this
Agreement.
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6.
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Relationship
of the Parties.
CASTion and ThermoEnergy are independent contractors, and nothing
in this
Agreement shall be construed as making them partners or as creating
the
relationships of employer and employee, master and servant, or principal
and agent between them, for any purpose whatsoever. Neither party
shall
make any contracts, warranties or representations or assume or create
any
other obligations, express or implied, in the other party’s name or on its
behalf.
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7.
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Assignment.
Neither party hereto shall (by operation of law or otherwise) assign,
transfer or subcontract its rights or delegate its performance under
this
Agreement without the prior written consent of the other party hereto
and
any such assignment, transfer or delegation without such consent
shall be
void and of no force or effect; provided, however that either party
hereto
may assign all of its rights and obligations hereunder to a successor
to
all or substantially all of its business and assets (by acquisition,
merger, sale of assets or otherwise) who accepts the terms of this
Agreement in writing. Subject to the preceding sentence, this Agreement
shall be binding upon, inure to the benefit of and be enforceable
by the
parties hereto and their respective successors and
assigns.
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8.
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Governing
Law and Forum.
This Agreement shall be governed by the laws of the Commonwealth
of
Massachusetts without regard to choice of law principles; and each
party
irrevocably (i) agrees that any action proceeding arising from or
relating to this Agreement may be brought only in the courts of
Massachusetts or the U.S. District Court located in Boston, Massachusetts,
(ii) consents, for itself and in respect of its property, to the
jurisdiction of each such court in any such action or proceeding,
and
(iii) waives any objection to proceeding in such venue, including
that the forum is inconvenient. The application of the U.N. Convention
on
Contracts for the International Sale of Goods is specifically excluded
from this Agreement.
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EACH
PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS, AND AGREES
TO
BE BOUND BY ITS TERMS AND CONDITIONS.
| CASTION CORPORATION | THERMOENERGY CORPORATION | ||
| By: /s/ Xxxx Xxxxxx | By: /s/ Xxxxxx X. Xxxxxx | ||
| Xxxx Xxxxxx President & CEO |
Xxxxxx Xxxxxx
President & CEO
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Date: March
24, 2006
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Date: March
24, 2006
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