DEVELOPMENT AGREEMENT
Exhibit 10.1
THIS DEVELOPMENT AGREEMENT (this “Agreement”) has been entered into effective as of this
8th day of September, 2008 (the “Effective Date”), by and between BIOGOLD FUELS
CORPORATION, Nevada corporation having an address of 0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 (“BioGold”), and ICM, INC., a Kansas corporation having an address of
000 X. Xxxxx Xxxxxx, Xxxxxxx, Xxxxxx 00000 (“ICM”)(BioGold and ICM, each a “Party,” collectively,
the “Parties”).
WITNESSETH:
WHEREAS, BioGold has developed and owns certain proprietary technology, processes, know-how,
and other intellectual property for the separation of municipal solid waste; and
WHEREAS, ICM is an industry leader in the design and construction of fully-integrated
commercial plants in the renewable energy industry; and
WHEREAS, BioGold wishes to engage ICM to develop and construct commercial scale municipal
solid waste processing facilities for BioGold, and ICM desires to utilize BioGold’s technology,
processes, know-how, and other intellectual property to perform such services; and
WHERAS, BioGold has entered into a resource recovery system agreement with Xxxxxx County,
Kansas for the construction of a municipal solid waste processing facility to be located in Xxxxxx
County (“Xxxxxx County Project”); and
WHEREAS, the Parties desire to set forth the conditions by which the design plans to be
developed pursuant to this Agreement will be used at the Xxxxxx County Project and at additional
project sites identified by the Parties.
NOW, THEREFORE, for and in consideration of the promises, covenants, and agreements set forth
herein and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree as follows:
1. Engagement.
| (a) | General. The Parties desire to enter into a strategic alliance to (i)
jointly develop a fully engineered and fully-integrated commercial plant design to
process municipal solid waste that will utilize BioGold’s proprietary and licensed
technology (“MSW Processing Facility”), and (ii) for ICM to construct commercial plants
that utilize the jointly developed MSW Processing Facility design, and to modify the
MSW Processing Facility design as necessary to accommodate particular site locations
and use parameters for each specific project. |
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| (b) | Exclusive Appointment of ICM as Engineer. |
| (i) | BioGold hereby engages ICM as its exclusive independent
contractor to provide engineering services with respect to the development of
all MSW Processing Facilities. ICM hereby accepts such engagement under the
terms and conditions hereof. |
| (ii) | With respect to the first MSW Processing Facility, the Parties
intend to enter into a Professional Services Agreement generally in the form of
Exhibit “A” attached hereto and incorporated hereby to formalize the specific
engagement of ICM to engineer a MSW Processing Facility for the Xxxxxx County
Project. From and after the date hereof, BioGold and ICM agree to work in good
faith to develop a scope of work and delivery schedule necessary to permit ICM
to fully engineer the MSW Processing Facility for the Xxxxxx County Project.
The parties shall enter into a Professional Services Agreement for the Xxxxxx
County Project following the development of the scope of work and delivery
schedule. The engineering provided by ICM under the Professional Services
Agreement shall be of sufficient detail to permit ICM, acting as design-builder
and general contractor, to construct the MSW Processing Facility for the Xxxxxx
County Project, as is more fully set forth in subparagraph (c) (ii) below, once
BioGold’s has completed any necessary owner’s scope requirements that are
conditions precedent to construction, including but not limited to
geophysical/geotechnical evaluation and environmental permitting for the
proposed facility. ICM’s scope of work under the Professional Services
Agreement shall include, without limitation, providing process flow, plant site
layout, equipment lists, energy balance, costs estimates, project schedules,
and process, structural, electrical engineering, including services sufficient
to create process and instrumentation diagrams (P&IDs), for the Xxxxxx County
Project. ICM shall also be responsible to create appropriate automation
controls and software to operate the MSW Processing Facility. The Parties agree
that in the event another project site is ready for construction of the MSW
Processing Facility prior to the Xxxxxx County Project, the Parties will
substitute such other project as the first MSW Processing Facility to be
constructed by ICM for BioGold. |
| (iii) | With respect to all other MSW Processing Facilities, if
pursuant to the provisions of this Agreement ICM is designated as the general
contractor for the construction of the MSW Processing Facility, the parties
will enter into a Design-Build Agreement similar in form to Exhibit “B”
attached hereto and incorporated hereby. For any MSW Processing Facility for
which ICM waives its right to be the general contractor, the Parties will
nevertheless enter into a Professional Services Agreement similar in form to
Exhibit “A” for each such project. In the latter case, ICM will be paid an
engineering fee for its professional services equal to six percent (6%) of the
total construction price of the MSW Processing Facility. ICM’s professional
services will be invoiced by ICM, and paid by BioGold, on a
milestone basis, based upon the projected cost of the MSW Processing
Facility at the time that ICM commences its professional services. If the
MSW Processing Facility is actually constructed and placed in operation, the
total fees owed to ICM will be adjusted upward as necessary to equal the
stated percentage of the total actual construction price. |
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| (c) | Exclusive Appointment of ICM as General Contractor. |
| (i) | BioGold hereby engages ICM as its exclusive independent
contractor to provide general contractor construction services for all MSW
Processing Facilities in the United States. ICM hereby accepts such engagement
under the terms and conditions hereof. |
| (ii) | With respect to the first MSW Processing Facility, the parties
intend to enter into a Design-Build Agreement generally in the form of Exhibit
“B” attached hereto and incorporated hereby to formalize the specific
engagement of ICM to construct the MSW Processing Facility for the Xxxxxx
County Project. During the pendency of the completion of the engineering
services described in Article 1.(b) for the Xxxxxx County Project, BioGold and
ICM agree to work in good faith to develop a scope of work, detailed listing of
equipment, construction budget and construction schedule necessary to construct
the MSW Processing Facility for the Xxxxxx County Project. Following the
completion of the engineering services, the parties shall promptly enter into
the Design-Build Agreement for the Xxxxxx County Project that shall incorporate
the agreed scope of work and construction schedule. The construction services
under the Design-Build Agreement will be provided on a time and materials basis
of cost plus fifteen percent (cost +15%). For purposes of this provision, the
parties agree that the term “cost” shall be fully defined within the
Design-Build Agreement to be executed by the parties, but at minimum shall
include the following: (i) the actual third party invoices to ICM for services,
labor, equipment, material and suppliers, at the agreed billing rate between
ICM and each services provider, subcontractor, and supplier; (ii) the
applicable internal billing rate for ICM labor and expenses, as identified on
ICM’s published Professional Services schedule; and (iii) the sales/use tax
owed pursuant to applicable law on all materials and equipment incorporated in
the Project. Although the Parties contemplate that BioGold will be able to
obtain a project level exemption certificate prior to inception of construction
of the Xxxxxx County Project, but the Parties nevertheless agree that BioGold
will be invoiced within the cost component of ICM’s xxxxxxxx for sales/use tax
owed on all materials and equipment not covered by an applicable exemption
certificate at the time ICM’s purchases such materials and equipment. |
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| (iii) | With respect to all other MSW Processing Facilities, the
Parties will enter into a separate Design-Build Agreement similar in form to
Exhibit “B” attached hereto and incorporated hereby for each facility. The
Parties may agree that ICM may perform construction services on the basis of a
fixed price or cost plus with a guaranteed maximum for such future MSW
Processing Facilities. However, the Parties failure to reach agreement on an
alternate fee structure shall not be cause for the revocation of ICM’s
exclusive appointment in this subparagraph (c). |
| (iv) | Notwithstanding the exclusive appointment set forth in this
subsection (c), in the event that ICM materially defaults under any
Design-Build Agreement and fails to cure such default during any applicable
cure period, then ICM’s exclusivity as general contractor shall terminate.
Additionally, ICM may waive its right to exclusivity on any particular project,
but such waiver shall apply only to that specific project, and then only if
construction on such project is commenced within eighteen (18) months of ICM’s
waiver. |
| (d) | Subcontracting. BioGold understands and agrees that ICM may carry out
its obligations and responsibilities (or any of them) under the Professional Services
Agreement and Design-Build Agreements through third party subcontractors, provided,
however, that ICM shall enter into agreements that bind each subcontractor to terms and
conditions materially consistent with the confidentiality and non-disclosure terms and
conditions of the Professional Services Agreement and Design-Build Agreements,
including, without limitation, protection of BioGold’s Confidential Information.
Nothing herein shall limit the business terms and conditions on which ICM shall
contract for services, labor, materials and equipment with its subcontractors and
suppliers. ICM shall be responsible for the performance or non-performance of its
subcontractors and suppliers under ICM’s agreements with such third parties. |
| (e) | Marketing Rights. ICM shall have the right, but not obligation,
provide business development and marketing services for MSW Processing Facilities to
non-municipality customers. In the event of the successful sale of a MSW Processing
Facility, (i) ICM shall provide the engineering and construction services with respect
to the MSW Processing Facility, (ii) BioGold will grant a license to the customer to
use the BioGold proprietary right embodied in the facility, and (iii) ICM will pay to
BioGold a licensing fee equal to six percent (6%) of the total construction price of
the MSW Processing Facility. ICM will refer all municipalities that contact ICM with
respect to a MSW Processing Facility to BioGold, and to the extent that ICM provides
business development services with respect to any such referred municipality, BioGold
shall pay to ICM a referral fee equal to the sum of ICM’s out-of-pocket costs for such
business development services plus $100,000.00. |
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| 2. | Duties of BioGold. In addition to the obligations under the Professional Services
Agreements and Design-Build Agreements, BioGold agrees to (i) deliver and license (or
sublicense, as applicable) to ICM all of BioGold’s technology, know-how, and other rights for
municipal solid waste (“MSW”) separations and MSW, tire, construction debris, green waste,
medical waste, and electronic waste processing processes, designs, and technology, owned
and/or licensed by BioGold or its affiliates or which BioGold or its affiliates may acquire
during the term of this Agreement, including, without limitation, any modifications, updates,
improvements, derivative works, and other changes thereto as the same may occur from time to
time (the “BioGold Proprietary Rights”) as necessary and convenient for ICM to perform its
duties as the exclusive engineering services provider and exclusive general contractor under
the Professional Services Agreement and Design-Build Agreements; (ii) facilitate discussions
between ICM and third-party licensors of the BioGold Proprietary Rights and the acquisition
of agreements between ICM and such third parties, or acquire for the benefit of ICM those
licenses from such third parties as are necessary and convenient for ICM to perform its duties
under Professional Services Agreements and/.or the Design-Build Agreements; (iii) provide
professional services from its engineers and technical representatives as reasonably requested
by ICM to assure completion of MSW Processing Facilities as required under the terms of the
Professional Services Agreements and Design-Build Agreements; and (iv) furnish access and use
of real property and associated rights to support ICM’s activities. |
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| 3. | Intellectual Property. |
| (a) | BioGold Ownership. The Parties agree that, as between each other,
BioGold is the sole and exclusive owner of the BioGold Proprietary Rights and any
improvements thereon, and ICM will not contest BioGold’s rights therein. |
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| (b) | ICM Ownership. The Parties agree that, as between each other, |
| (i) | ICM is and will be the sole and exclusive owner of the
fully-integrated plant designs and all engineering documents created by ICM,
regardless of the format or media utilized and any improvements thereon (“ICM
Proprietary Rights”), and BioGold will not contest ICM’s rights therein. In
the event that BioGold terminates this Agreement for cause, ICM will grant to
BioGold an irrevocable, worldwide, fully paid-up right and license to make, use
and sell the ICM Proprietary Rights, subject to reasonably appropriate
limitations on ICM’s professional liability when the same are reused, modified,
changed or otherwise incorporated in a project other than the specific project
for which such design documents were created by ICM. |
| (ii) | ICM shall be sole and exclusive owner of the distributed
control system (DCS) and software developed by ICM or its subcontractors for
use in the operation of the MSW Processing Facilities. |
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4. Confidentiality.
| (a) | As used in this Agreement, “Confidential Information” of a Party shall mean all
inventions, discoveries, data, information processes, methods, techniques, materials,
results, or other know-how, whether or not patentable, or other information, including,
without limitation, proprietary information and materials regarding such Party’s
technology, products, business information, or objectives, that (a) embodies BioGold
Proprietary Rights or ICM Proprietary Rights (as applicable); (b) is first communicated
by the Disclosing Party to the Receiving Party on or after the Effective Date (i) in
written form and marked as confidential or with a similar restrictive legend, or (ii)
not in written form but initially identified to the Receiving Party as proprietary
and/or confidential and thereafter promptly confirmed, in writing to the Receiving
Party, as being Confidential Information; or (c) is first communicated by the
Disclosing Party to the Receiving Party prior to the Effective Date and constitutes
Confidential Information under the terms of the Mutual Confidentiality Agreement
between the Parties, dated March 5, 2008. The terms and conditions of this Agreement
shall be considered Confidential Information of both Parties. Notwithstanding the
foregoing, Confidential Information shall not include any information that the
Receiving Party can establish: |
| (i) | was already known by the Receiving Party (other than under an
obligation of confidentiality), at the time of disclosure by the Disclosing
Party and such Receiving Party has credible documentary evidence to that
effect; |
| (ii) | was generally available to the public or otherwise part of the
public domain at the time of its disclosure to the Receiving Party, became
generally available to the public or otherwise part of the public domain after
its disclosure or development, as the case may be, and other than through any
act or omission of a Party in breach of this confidentiality obligation,
provided, however, that information shall not be deemed to be available to the
public merely because such information is embraced by more general disclosures
in the public domain, and any combination of features shall not be deemed to be
within the foregoing exceptions merely because individual features are in the
public domain if the combination itself and its principles of operation are not
in the public domain; |
| (iii) | was disclosed to that Party, other than under an obligation of
confidentiality, by a third party who had no obligation to the Disclosing Party
not to disclose such information to others; or |
| (iv) | was independently discovered or developed by or on behalf of
the Receiving Party without the use of the Confidential Information belonging
to the other Party and the Receiving Party has credible documentary evidence to
that effect. |
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| (b) | Obligation. Except to the extent expressly authorized by this
Agreement or otherwise agreed in writing, the Parties agree that, for the term of this
Agreement and thereafter as set forth in Article 6 below, each Party (the “Receiving
Party”), receiving any Confidential Information of the other Party (the “Disclosing
Party”), shall keep such Confidential Information confidential and shall not publish or
otherwise disclose or use such Confidential Information for any purpose other than as
necessary to perform the Design-Build Agreements. The Receiving Party shall keep
confidential the Confidential Information and shall use all reasonable efforts to
maintain the Confidential Information as secret and confidential. The Receiving Party
shall not disclose the Confidential Information except to its officers, employees,
agents, consultants, and contractors (the “Representatives”) who need to know the
Confidential Information to perform Receiving Party’s obligations or exercise its
rights under the Design-Build Agreements, and even then only to such extent as are
necessary and essential for such Representative’s involvement. The Receiving Party
shall inform such Representatives of the confidential and proprietary nature of the
Confidential Information. The Receiving Party shall cause each such Representative to
acknowledge in writing its obligations to be bound by the same non-disclosure
obligations to which Receiving Party is bound. The Receiving Party shall make all
reasonable efforts to safeguard the Confidential Information from disclosure by its
Representatives to anyone other than permitted hereby. The Receiving Party shall
notify the Disclosing Party immediately upon discovery of any unauthorized use or
disclosure of the Confidential Information, or any other breach of this Agreement by
the Receiving Party or its Representatives, and shall cooperate with the Disclosing
Party in every reasonable way to help the Disclosing Party regain possession of the
Confidential Information and prevent its further unauthorized use or disclosure. |
| (c) | Authorized
Disclosure. Notwithstanding the foregoing Section 4(b), each
Party may disclose Confidential Information belonging to the other Party to the extent
such disclosure is reasonably necessary to: (i) perform under the Professional Services
and/or Design-Build Agreements; (ii) prosecute or defend litigation; (iii) facilitate
discussions with prospective investors of the Party, or in proposed MSW Processing
Facilities (but no Party may disclose a Disclosing Party’s Confidential Information to
a competitor of the Disclosing Party) or underwriters in connection with financing
arrangements (not involving any license, collaboration, or other arrangement relating
to such Party’s technology or products) or a proposed acquisition of such Party; and
(iv) comply with applicable governmental laws and regulations. In the event that the
Receiving Party shall reasonably deem it necessary to disclose, pursuant to this
Section 4(c), Confidential Information belonging to the Disclosing Party other than
pursuant to confidentiality terms not less stringent than those specified herein, the
Disclosing Party shall, to the extent not prohibited by law, give reasonable advance
notice of such disclosure to the other Party and take reasonable measures to ensure
confidential treatment of such information. |
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| 5. | Non-Competition. ICM agrees that during the term of this Agreement that ICM will not
accept an engagement to provide development, engineering or construction services to any
person, company or business entity that offers or intends to offer municipal solid waste
separation technology similar to or in competition to the BioGold Proprietary Rights.
Notwithstanding the foregoing, the parties acknowledge that all biological and biochemical
fermentation processes are not and will not be deemed to be similar to or in competition with
BioGold Proprietary Rights, and as such, are specifically excepted from the restrictions of
this Section 5. |
| 6. | Promotion. During the term of this Agreement, each Party may promote the other as
having a strategic alliance the other with respect to the design and construction of MSW
Processing Facilities. Each Party may use the other Party’s name and logo in mutually agreed
upon press releases and on each other’s website. Any such use is subject to the prior
approval of the other Party, which approval shall not be unreasonably withheld or delayed.
Each Party shall use such designations as the other Party may reasonably require indicating
the other Party’s rights in its name and/or logo. All such uses shall immediately stop upon
termination of this Agreement. |
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| 7. | Term and Termination. |
| (a) | Term. Unless earlier
terminated as specified in Section 7(b) or elsewhere
in this Agreement, the term of this Agreement shall be for a period of fifteen (15)
years from the Effective Date. This term of this Agreement shall automatically renew
for additional successive periods of five (5) years each unless one Party gives the
other Party written notice of its intent to terminate this Agreement at the end of the
then existing term, at least six (6) months prior to the expiration of the then
existing term. |
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| (b) | Termination. |
| (i) | Breach of Proprietary Rights. Either Party may
immediately terminate this Agreement by notice to the other Party because of
the willful or wanton breach by the other Party of its obligations hereunder
with respect to use and disclosure of the Party’s Proprietary Rights or
Confidential Information. In recognition of the injunctive relief rights
granted each Party pursuant to Article 7(e) below, if the termination is by
BioGold because of a claimed breach by ICM of the BioGold’s Proprietary Rights,
notwithstanding the issuance of a temporary restraining order, in no event will
ICM’s role as exclusive engineering services provider or general contractor for
future MSW Facilities be terminated until the issuance of final unappealable
order following a full and fair hearing in a court of competent jurisdiction on
the facts supporting the claimed breach. |
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| (ii) | For Cause. In the event that either Party commits a
material breach of this Agreement, the other Party may provide written notice
of the alleged breach (the “Notice of Breach”) to the breaching Party and if
such breach remains uncured for thirty (30) days after the giving of the Notice of
Breach (or if such breach is not susceptible to cure within the initial
30-day period and the breaching Party uses continuous, diligent, good faith
efforts to cure such breach, it shall document such efforts by written
notice to the non-breaching Party on or before the end of such 30-day
period, and the stated cure period will be extended by an additional thirty
(30) days), then this Agreement shall automatically terminate at the end of
such period. Notwithstanding the foregoing, a Party shall not be in breach
of its obligations under this Agreement to the extent that such breach was
caused by the other Party’s failure to perform its obligations hereunder.
Any breach of Section 5 of this Agreement by ICM shall be considered a
material breach of the Agreement allowing BioGold to terminate the Agreement
for cause after providing the Notice of Breach and allowing the thirty (30)
day cure period as defined above. |
| (iii) | Mutual Agreement. The Parties may agree to mutually
terminate this Agreement. |
| (iv) | Payment for Services Rendered. Notwithstanding
termination of this Agreement, ICM shall be paid for, and BioGold shall be
obligated to pay for, all services rendered under any Professional Services
and/or Design Build Agreement then in effect as of the date of the termination,
and the termination of this Agreement shall not terminate such other agreements
except and unless such other agreements are properly terminable pursuant to
their individual respective terms. |
| (c) | Actions on Termination. In addition to such other obligation of the
Parties on or after termination of this Agreement in whole or in part as specified
herein, upon the effective date of termination of this Agreement for any reason, and
except as otherwise expressly provided in the Design-Build Agreements, each Party shall
(i) return to the owner all documents and other materials in the other Party’s
possession or control that contain or embody the owner’s Proprietary Rights and
Confidential Information in whatever format, whether written or electronic, including
any and all copies or reproductions thereof; (ii) permanently delete all such
Proprietary Rights and Confidential Information from its computer hard drives and any
other electronic storage medium (including any backup or archive systems); (iii) retain
no copies or abstracts thereof; and (iv) deliver to the owner thereof a written
certificate that the other Party has complied with the obligations of
this Section 7(c). |
| (d) | Survival. In addition to such other provisions of this Agreement that
specifically survive the expiration of termination of this Agreement, the Parties’
rights and obligations under Sections 3, 4, and 7 shall survive any termination of this
Agreement. |
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| (e) | Remedies. The Parties acknowledge and agree that the use or disclosure
of the Proprietary Rights or Confidential Information of a Party in a manner
inconsistent with the provisions of this Agreement shall cause the owner thereof
immeasurable damage for which adequate remedy at law may not be available. Therefore,
the owner thereof shall be entitled to obtain injunctive and other equitable relief for
the breach or threatened breach of the obligations of this Agreement, without the
requirement to post bond. Except as otherwise limited by this Agreement, rights under
this section shall be cumulative of all other rights and remedies of the Parties. |
| 8. | General. |
| (a) | Binding. This Agreement shall be binding upon the successors and
permitted assigns of the Parties, and the name of a Party appearing herein shall be
deemed to include the names of such Party’s successors and permitted assigns to the
extent necessary to carry out the intent of this Agreement. Neither Party may assign
its rights or obligations under this Agreement without prior written consent of the
other Party, except that ICM may, without BioGold’s consent, assign its rights to
perform either (i) engineering services, and/or (ii) construction management services,
to an affiliated corporation or company. Any assignment in violation of the preceding
sentence is void. |
| (b) | Correspondence and Notices. All notices and other communications
required or permitted hereunder shall be in writing and shall be deemed given (a) on
receipt, if delivered personally or by facsimile transmission (receipt verified), (b)
three days after deposit, if mailed by registered or certified mail (return receipt
requested), postage prepaid, or (b) the next business days, if sent by nationally
recognized express courier service, to the Parties at the following addresses (or at
such other address for a Party as shall be specified by like notice: |
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All correspondence to BioGold shall be addressed as follows: |
BIOGOLD FUELS CORPORATION
ATTN: Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: 0-000-000-0000
ATTN: Xxxxx Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: 0-000-000-0000
All correspondence to ICM shall be addressed as follows:
ICM, Inc.
ATTN: General Counsel
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Fax: 0-000-000-0000
ATTN: General Counsel
000 X. Xxxxx Xxxxxx
Xxxxxxx, Xxxxxx 00000
Fax: 0-000-000-0000
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| (c) | Waiver. No provision of the Agreement shall be waived by any act,
omission or knowledge of a Party or its agents or employees except by an instrument in
writing expressly waiving such provision and signed by a duly authorized officer of the
waiving Party. The waiver by either of the Parties of any breach of any provision
hereof by the other Party shall not be construed to be a waiver of any succeeding
breach of such provision or a waiver of the provision itself. |
| (d) | Severability. If any clause or portion thereof in this Agreement is
for any reason held to be invalid, illegal or unenforceable, the same shall not affect
any other portion of this Agreement, as it is the intent of the Parties that this
Agreement shall be construed in such fashion as to maintain its existence, validity,
and enforceability to the greatest extent possible. In any such event, this Agreement
shall be construed as if such clause of portion thereof had never been contained in
this Agreement, and there shall be deemed substituted therefor such provision as will
most nearly carry out the intent of the Parties as expressed in this Agreement to the
fullest extent permitted by applicable law. |
| (e) | Construction. All captions in this Agreement are intended solely for
the convenience of the Parties, and none shall be deemed to affect the meaning or
construction of any provisions hereof. No consideration shall be given to the fact or
presumption that one Party had a greater or lesser hand in drafting this Agreement. |
| (f) | Governing Law and Venue. This Agreement shall be governed by and
interpreted in accordance with the substantive laws of the State of Kansas, and, as
applicable, the United States of America, without regard to conflict of law principles
thereof. Except for levy upon or to enforce or a judgment so obtained or temporary or
preliminary equitable relief, any suit, action, or claim between the Parties arising
out of or related to this Agreement must be brought exclusively in state or federal
court sitting in Wichita, Kansas, USA, and each Party irrevocably submits to the
personal jurisdictions of such courts. |
| (g) | Independent Contractors. Both Parties are independent contractors
under this Agreement. Nothing herein contained shall be deemed to create an
employment, agency, joint venture or partnership relationship between the Parties
hereto or any of their agents or employees, or any other legal arrangement that would
impose liability upon one Party for the actions of or failure to act of the other
Party. Neither Party shall have any express or implied power to enter into any
contracts or commitments or to incur any liabilities in the name of, or on behalf of,
the other Party, or to bind the other Party in any respect whatsoever. |
| (h) | Counterparts. This Agreement may be executed in any number of
counterparts, each of which need not contain the signature of more than one Party but
all such counterparts taken together shall constitute one and the same agreement.
Facsimile or other electronically transmitted signatures shall be binding upon the
Parties and shall be treated as if originals. |
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| (i) | Amendment. No amendment, modification, or supplement of any provision
of this Agreement shall be valid or effective unless made in writing and signed by a
duly authorized officer of each Party. |
| (j) | Entire Agreement of the Parties. This Agreement and any agreements
referenced herein constitute and contain the complete, final, and exclusive
understanding and agreement of the Parties with respect to the subject matter hereof,
and cancels and supersedes any and all prior negotiations, correspondence,
understandings and agreements, whether oral or written, among the Parties respecting
the subject matter hereof and thereof. |
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, duly authorized representatives of the Parties have duly executed this
Agreement to be effective as of the Effective Date.
| BIOGOLD FUELS CORPORATION |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Xxxxx Xxxxxxxx, CEO |
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| “BioGold” | ||||
| ICM, INC. |
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| By: | /s/ Xxxx XxxxxxXxxxxx | |||
| Xxxx XxxxxxXxxxxx, President |
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| “ICM” | ||||
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EXHIBIT “A”
Professional Services Agreement
[SEE ATTACHED]
BioGold Development Agreement
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EXHIBIT “B”
Design/Build Agreement
[SEE ATTACHED]
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