Exhibit 10.5
BETA SITE COOPERATION
AGREEMENT
Made and entered into as of the 30th day of November, 2001
Between
OrganiTech USA, Inc.
a corporation organized and existing
under the laws of Delaware (U.S.A.)
with its principal place of business at
X.X. Xxx 000, Xxxxxxx Xxxx, Xxxxxx 00000, Xxxxxx
(hereinafter referred to as the "Company")
the first part
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And
Agronaut Pte. Ltd.
a corporation organized and existing
under the laws of Singapore
with its principal place of business at
Lor. Chencharu, AVA Sembawang Research Xxxxxxx
Xxxxxxxxx 000000
(hereinafter referred to as "Agronaut")
of the second part
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INTRODUCTION
A. The Company has developed and is the sole and exclusive owner of all
rights pertaining to certain proprietary automated, self contained
system for the production of vegetables and plants known as GrowTech
2000TM which is protected under United States Patent #6,243,987 and PCT
patent pending #PCT/US00/23877, owned by Organitech's wholly owned
subsidiary, Organitech Ltd. (hereinafter - the "Machine");
B. The Company and Agronaut wish to cooperate in creating a "Beta Site" in
Singapore in which the Machine will be tried and tested for the growth
and the development of growth protocols of various plants and
vegetables;
C. The parties wish to provide for the terms and conditions of their "Beta
Site cooperation;
NOW THEREFORE, in consideration of the mutual promises and covenants contained
herein, the parties hereby agree as follows:
1. PREAMBLE, SCHEDULES AND CAPTIONS
The Preamble and Schedules to this Agreement constitute an integral part
hereof. The Agreement's captions are provided for the sake of
convenience only and shall not be used to construe the provisions
hereof.
2. DEFINITIONS
In this Agreement each of the following terms shall have the meaning
provided for herein;
"Company" - shall mean the Company (OrganiTech U.S.A. Inc. and/or
(and/or its wholly owned Israeli subsidiary Organitech
Israel Ltd.)
"Territory" - shall mean the geographical territory of Singapore,
Japan, China, Indonesia, Malaysia, Thailand, Hong-Kong,
Taiwan, Brunei, Palau, East Timor, South Korea and
Micronesia;
"Term" - shall mean the period as provided for in Section 4
hereunder;
"Machine/s" - shall mean the proprietary automated, self contained
system for the growing vegetables and plants known as
GrowTech 2000TM or its derivatives which is protected
under United States Patent #6,243,987, owned by the
Company's wholly owned subsidiary, OrganiTech Ltd.;
"Program" - shall mean the beta site detailed operational program
jointly prepared by the parties and submitted to the
Israel Singapore Fund, a copy of which is attached as
Exhibit "A" hereto.
3. BETA SITE
3.1. "Prior to the signing of this Agreement, Agronaut made a
conditional purchase of two Machines from The Company.
3.2. The parties hereby agree that the Machines will be used by
Agronaut for the operation of the Beta Site, i.e. for trial,
testing and experimentation of the Machines' operation and the
growth and development of growth protocols of vegetables and
plants suitable for production by the Machines in the Territory,
all in accordance with the provisions and details of the Program
(the "Beta Site").
3.3. Both parties hereby undertake to provide all the funding required
for the operation of the Beta Site all in accordance with the
budget provided for in the schedule attached as Exhibit A hereto.
3.4. The Company shall cooperate with and reasonably assist Agronaut
with its experience and know how regarding the operation of the
Beta Site, the Machines and the implementation of the Program.
4. TERM
This Agreement shall be for a period commencing from the date hereof
and shall terminate at such time when the implementation of the Program
has been completed in accordance with the time schedule provided for
therein.
5. PROPRIETARY RIGHTS
5.1. It is hereby specifically agreed and acknowledged by Agronaut
that all of the proprietary rights and copyrights whatsoever in
and with respect to any intellectual property assets which shall
be derived from the Beta Site, including, without limitation, any
technology, know how, data and any other related technology
and/or Documentation pertaining to plants and vegetables growth
protocols which shall be tried or developed in the Beta Site (the
"Beta Site IP") are vested in, owned by and belong solely and
exclusively to the Company, and that Agronaut never had, does not
have, nor shall ever claim to have any such proprietary right or
copyright in and with respect to the Beta Site IP. Agronaut
hereby undertakes not to assert, contest or dispute the validity
of, or contest the Company's proprietary rights and ownership of
the Beta Site IP or of any patents, copyrights, trademarks, trade
names (whether registered or not, or the Company's registration
thereof) pertaining thereto.
5.2. For the avoidance of any doubt it is hereby additionally
specifically agreed and acknowledged by Agronaut that all of the
proprietary rights and copyrights whatsoever in and with respect
to the Machines, and any related technology and/or Documentation
and data pertaining thereto, are vested in, owned by and belong
solely and exclusively to the Company, and that Agronaut never
had, does not have, nor shall ever claim to have any such
proprietary right or copyright in and with respect to the
Machines, and any related technology and/or Documentation and
data pertaining thereto. Agronaut hereby undertakes not to
assert, contest or dispute the validity of, or contest the
Company's ownership of any patents, copyrights, trademarks, trade
names, whether registered or not, or the Company's registration
thereof, or the Company's proprietary rights therein.
6. LICENSE TO USE THE BETA SITE IP IN THE TERRITORY
6.1. In consideration for the fulfillment of Agronaut's undertakings
and obligations provided for under the provisions of this
Agreement and specifically the funding and completion of the
Beta Site Program by Agronaut, the Company hereby grants to
Agronaut an exclusive free of charge license to use the Beta Site
IP in the Territory for a period of 25 years commencing from the
date hereof or for the entire term of the distribution
relationship between the parties, whichever term shall be longer.
For the purpose hereof and the term "Beta Site IP" shall mean any
information, know how, data and documentation pertaining to the
growth protocols of the GrowTech 2000 machines developed at the
Beta Site and the term "use" shall include the commercial and
business exploitation thereof.
6.2. For the avoidance of any doubt it is hereby clarified that the
Company, being the proprietary rights owner of the Beta Site IP
shall be entitled to use the Beta Site IP without any limitation
anywhere outside the Territory at the Company's sole and
exclusive discretion. For the purpose hereof the term "use"
shall include the commercial and business exploitation thereof.
6.3. Notwithstanding the above, should the Company wish to use the
Beta Site IP or any part thereof within the Territory, the
Company may, at its sole and exclusive discretion and without any
limitation, do so, or may at its sole and exclusive discretion
and without any limitation, grant others the right to do so,
provided that in such a case the Company shall pay or cause to be
paid to Agronaut a one time charge constituting 1% (one percent)
of the sale price (Ex-factory price, exclusive of shipping and
insurance charges) actually collected by the Company for each
Machine which, used or will utilize the Beta Site IP or any part
thereof.
7. CONFIDENTIALITY
Each party hereby acknowledges that as a result of its business
relationship with the other party, such party may have access to
proprietary materials of the other party. Company and Agronaut each
agree and undertake to do their utmost and to take all necessary
precautions to prevent transfer of such confidential information to
unauthorized parties.
8. RELATIONSHIP OF PARTIES
8.1. Each party hereto acts as an independent contractor on its own
account and responsibility. The relationship established between
the Company and the Agronaut by this Agreement is solely that of
independent contractors. Each party is an independent dealer and
is in no way the agent or legal representative of the other party
and no employee of any of the parties shall be considered to be
an employee of the other party for any purposes whatsoever.
8.2. Neither party is authorized to, and shall not assume any
obligation of any kind, express or implied, on behalf of the
other party. Neither party shall make any representation to
anyone contrary to the provisions of this paragraph.
9. TERMINATION
9.1. Each party hereto shall have the right to terminate this
Agreement at its sole discretion at any time upon the occurrence
of any one or more of the following events:
9.1.1. If the other party fails to meet its obligation to fund
and complete the implementation of the Beta Site Program
in accordance with the provisions and details thereof.
9.1.2. If the other party attempts to or in fact transfers or
assigns any of its rights, liabilities or obligations
under this Agreement to any other third party without the
prior consent of the other party to this agreement; or
9.1.3. If the other party substantially breaches any other terms
or conditions of this Agreement, and fails to remedy such
breach to the full satisfaction of the other party within
30 days after receiving from the Company a demand to do
so; or
9.1.4. If the other party makes any assignment for the benefit of
creditors or a general arrangement with creditors commits
any act of bankruptcy or files a petition under any
bankruptcy or insolvency law, or if such a petition filed
against him is not dismissed within 60 days or if either
party discontinues business or adopts a resolution
providing for dissolution or liquidation.
9.2. In no event shall any termination of this Agreement affect any
rights or obligations accrued or existing at the time of such
termination or arising out of such termination.
10. GENERAL TERMS AND CONDITIONS
10.1. Severability
If any provision of this Agreement shall be declared void, the
validity of any other provision and of the entire Agreement shall
not be affected thereby.
10.2. Proper Law and Jurisdiction
This Agreement shall be exclusively governed by, and shall be
construed exclusively in accordance with the laws of the Republic
of Singapore and the competent court of Singapore shall have the
exclusive jurisdiction over any dispute or controversy with
respect to this Agreement, including, without limitation, its
existence, interpretation, execution and implementation.
10.3. Governing Language
The Agreement is in the English language only, which language
shall control in all respects. No translation, if any, of this
Agreement into any other language shall be of any force or effect
in the interpretation of this Agreement or in a determination of
the intent of either party hereto.
10.4. Waiver
The failure at any time of either party to enforce any of the
provisions of the Agreement, or any right with respect thereto or
to exercise any option herein provided, will in no way be
construed to be a waiver of such provisions, rights or options,
or in any way to affect the validity of this Agreement.
10.5. Complete Agreement
The provisions herein contained set forth the entire Agreement of
the parties with respect to the subject matter hereof, and
supersede all previous communications, representations or
agreements, whether oral or written, with respect to the subject
matter hereof, and no addition to or modification of this
Agreement shall be binding upon either party unless reduced to
writing and signed by both parties hereto.
10.6. Notices
Any notice required or authorized to be given hereunder shall be
served by hand delivery or by certified letter return receipt
requested or by facsimile addressed to the Company or the
Agronaut (as the case may be), at the following addresses:
To the Company: OrganiTech USA, Inc.
X.X. Xxx 000, Xxxxxxx Xxxx,
Xxxxxx 00000, Xxxxxx
Attention: Xx. Xxxx Xxxxxx
Fax: 000-0-0000000
e-mail xxxxx@xxxxxxxxxx.xxx
To Agronaut: Agronaut Pte Ltd
Lorong Chencharu,
AVA Sembawang Research Xxxxxxx
Xxxxxxxxx 000000
Attention: Mr. Xxxxx Xxx / Xxxxxxxxx Xxxx
Fax: 0000000
e-mail xxxxxxxx@xxxxxxx.xxx.xx
Any notice delivered by hand shall be deemed to have been served
upon delivery.
Any notice given by letter shall be deemed to have been served
seven (7) days after the same shall have been posted, not
including the day of posting, and any notice given by facsimile
shall be deemed to have been served on the day of sending the
message.
Proof that such letter was properly addressed and put into the
post, and in the case of telex that the message was sent to the
correct facsimile number, shall be conclusive evidence of
service. Notices required by this Agreement shall be addressed to
any other address as may from time to time be specified by either
party by written notice to the other.
IN WITNESS WHEREOF, the parties have executed this Agreement.
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxx
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OrganiTech USA, Inc. Agronaut Pte. Ltd.
By: /s/ Xxxx Xxxxxx BY: /s/ Xxxxx Xxx
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(the "Company") (Agronaut)
