Exhibit 10.10
AGREEMENT
This Agreement (the "Agreement") is entered into this 31st day of January,
1996, by and between Phasetronics, Inc., a Florida corporation ("Phasetronics"),
X.X. Xxx 00000, Xxxxxxxxxx, Xxxxxxx 00000-0000, and Apollo International of
Delaware, Inc., a Delaware corporation ("Apollo"), of 0000 XX Xxxxxxx 00, Xxxxx
000, Xxxxxx Xxxxx, Xxxxxxx 00000.
RECITALS
Phasetronics, a manufacturer of solid state power and motor control
products, wishes to engage the services of Apollo to design, develop and supply
a working prototype of a digital starter module with communications control
software to be manufactured by Phasetronics in the development and marketing of
a soft start device for motors.
Apollo is in the business of designing and producing products such as a
digital starter module and agrees to perform the services called for under this
Agreement in accordance with its terms and conditions.
NOW, THEREFORE, in consideration of the premises, covenants, and terms set
forth herein, the parties agree as follows:
1. RECITALS. The Recitals set forth above are true and correct and are
incorporated herein by reference.
2. APOLLO'S RESPONSIBILITIES. Apollo agrees, in consideration of the
amounts to be paid by Phasetronics under Section 3 of this Agreement, and at no
additional charge to Phasetronics, to undertake and perform the following
functions pursuant to the terms of this Agreement:
a. Apollo shall design, develop, manufacture and supply to
Phasetronics a solid state digital starter module to include communications
control software with RS232 and RS485 connections (the "module"), in strict
accordance with the hardware and software specifications which are attached
hereto as Exhibits "A" and "B" respectively and incorporated herein by
reference, which shall be capable of being utilized by Phasetronics in the
development and marketing of a digital soft start device for motors.
b. Apollo shall supply three years of updates, enhancements, and any
new communications protocols for the module hardware and software which may
result from Apollo's ongoing
development. Such updates, enhancements and communications protocols shall be
supplied to Phasetronics promptly upon their availability.
c. Apollo shall supply three years of technical support and a
minimum of six months of field support to Phasetronics for the module. In
addition, Phasetronics shall be entitled to direct access to the designers
engaged by Apollo in the design and creation of the module hardware and software
and to any designers of the future updates, enhancements, or communications
protocols described in Section 2b above.
d. Apollo shall indemnify and hold Phasetronics harmless from any
loss or damage which Phasetronics shall incur, including its reasonable
attorneys fees and costs of defending claims, as a result of damage to any motor
belonging to Phasetronics or any of its customers which results directly or
indirectly from the failure of the module, including the hardware, software, or
any part thereof, to perform its motor protective functions. Phasetronics shall
indemnify and hold Apollo harmless from any loss or damage which Apollo shall
incur, including its reasonable attorneys fees and costs of defending claims, as
a result of damage to any motor belonging to Phasetronics or any of its
customers which results directly or indirectly from any failure of the soft
start device manufactured by Phasetronics to perform its motor protective
functions and which is not directly or indirectly related to a failure of the
module component to perform its functions.
e. Apollo agrees that the module and all plans, specifications,
software, programs, drawings, notes, calculations, prototypes, and all other
materials related to the design, creation or production of the module
(hereinafter referred to as the "Confidential Information") shall be the sole
and exclusive property of Phasetronics. Apollo agrees not to disclose such
Confidential Information to any other person or entity without the prior written
permission of Phasetronics. Further, Apollo shall not use any such Confidential
Information for its own benefit or the benefit of any other person or entity.
Apollo shall, at the request of Phasetronics, deliver any and all such
Confidential Information to Phasetronics. In addition, Apollo agrees that it
shall, at the request of Phasetronics, execute any documentation evidencing sole
ownership of the module and any of the Confidential Information by Phasetronics.
f. Apollo agrees that for a period of five years from the date of
this Agreement it shall not, directly or indirectly: (1) contract with any
other person, firm or entity for the design, development or creation of a soft
start type of control,
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(2) manufacture or market any soft start type of control under any name, or (3)
assist any other entity, as a consultant, partner, joint venturer, or otherwise,
in the design, development, manufacture or marketing of a soft start type of
control.
g. Apollo shall, upon the signing of this Agreement deliver to
Phasetronics a copy of the existing software that operates the Model CMPR motor
protection relay which is currently being manufactured by Apollo.
h. Within sixty days from the date of this Agreement Apollo shall
deliver to Phasetronics at its plant in Clearwater, Florida, a working prototype
for the module.
i. Within ninety days from the date of this Agreement, Apollo shall
deliver to Phasetronics at its plant in Clearwater, Florida, the Windows version
of the communications control software for the module including the RS232 and
RS485 connections.
3. PAYMENT. As full payment for the services set forth in Section 2
above, Phasetronics shall pay the following sums to Apollo:
a. $20,000.00 upon the signing of this Agreement.
b. $20,000.00 within thirty days after delivery and acceptance of
the working prototype for the module.
c. $20,000.00 within thirty days after delivery and acceptance of
the Windows version of the communications control software for the module
including the RS232 and RS485 connections. This payment shall not be due unless
the working prototype for the module has been previously delivered and accepted.
d. $20,000.00 after six continuous months of successful field
operation of the module, including all hardware and software, by Phasetronics.
4. ASSIGNMENT. Apollo shall not assign, subcontract or delegate its
rights or responsibilities under this Agreement without the written permission
of Phasetronics, which it may give or withhold in its sole discretion.
Phasetronics may assign its rights and obligations under this Agreement.
5. ATTORNEYS FEES. In the event that either party institutes an action
to enforce the terms of this Agreement, the
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successful party in any such action shall be entitled to recover its reasonable
costs and attorneys fees for such action.
6. ENTIRE AGREEMENT. The terms and provisions contained herein
constitute the entire agreement between the parties with respect to the subject
matter hereof. This Agreement shall not be modified except in writing, signed
by both parties.
7. GOVERNING LAW. This Agreement shall be governed and construed in
accordance with the laws of the State of Florida and any action brought to
enforce the terms of this Agreement shall be brought in the appropriate court of
competent jurisdiction located in Pinellas County, Florida.
8. SEVERABILITY. Should any part of this Agreement for any reason be
declared by a court of competent jurisdiction to be invalid, such decision shall
not affect the validity of the remaining portion, which shall continue in full
force and effect as if this Agreement had been executed with the invalid portion
eliminated therefrom. In the event that a portion of this Agreement shall be
declared to be invalid, the parties agree that they shall, in good faith,
negotiate with one another to replace such invalid provision with a valid
provision as similar as possible to that which had been held invalid to the
extent permissible by applicable laws.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
on their behalf as of the date first above written.
Witnesses: Phasetronics, Inc., a Florida
corporation
/S/ By: /S/
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Name: Xxxxx X. Xxxxxxxx
Title: President
/S/
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Apollo International of
Delaware, Inc., a Delaware
corporation
/S/ By: /S/
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Name: Xxxxx Xxxxxx
Title: President
/S/
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