LICENSE AGREEMENT
EXHIBIT
10.26
THIS
LICENSE AGREEMENT (this "Agreement") is made as of April 15, 2008 (the
“Effective Date”) by and between Hybrid Technologies, Inc., a Nevada corporation
having an address at 0000 Xxxx Xxxxxxxxxx, Xxxxx 000-000, Xxx Xxxxx, XX 00000
("Hybrid"), and Zingo Inc., a Nevada corporation having an address at 000 X.
Xxxxxx Xxxx., Xxxxx X0-000, Xxx Xxxxx, XX 00000. ("Zingo").
NOW,
THEREFORE, the parties agree:
ARTICLE
1.
The
terms, as defined herein, shall have the same meanings in both their singular
and plural forms.
1.1 “Affiliate”
means any corporation or other business entity in which Zingo owns or controls,
directly or indirectly, more than fifty percent (50%) of the outstanding stock
or other voting rights entitled to elect directors, or in which Zingo is owned
or controlled directly or indirectly by more than fifty percent (50%) of the
outstanding stock or other voting rights entitled to elect directors.
1.2 “Licensed
Field” means rechargeable lithium-ion batteries for hybrid vehicles and other
applications.
1.3 “Licensed
Product” means any product for which the manufacture, use, sale, offer for sale,
or importation would constitute, but for the license granted to Zingo by Hybrid
herein, an infringement of any Valid Claim within the Patent
Rights.
1.4 “Patent
Rights” means any and all patents and patent applications (including inventor's
certificates and utility models) listed on Exhibit A, including any
substitutions, extensions, reissues, reexaminations, renewals, divisions,
continuations, continuation-in-parts and foreign counterparts of any of the
foregoing.
1.5 “Retained
Field” means any products outside of the Licensed Field.
1.6 “Valid
Claim”
means any patent claim within the Patent Rights that has not expired or been
held invalid in a final decision by a patent office or by a court of competent
jurisdiction.
ARTICLE
2.
ARTICLE
3.
ARTICLE
4.
(a) Zingo
shall use reasonable efforts to keep accurate and correct records of all
Licensed Products manufactured, used, and sold, and sublicense fees received
under this Agreement. Such records shall be retained by Zingo for at least
two
(2) years following a given reporting period.
(b) All
records of Zingo and its Affiliates and Sublicensees shall be available during
normal business hours for inspection at the expense of Hybrid by a nationally
recognized certified public accountant selected by Hybrid and acceptable to
Zingo for the sole purpose of pricing of lithium batteries to Hybrid. Such
inspector shall not disclose to Hybrid any information other than information
relating to the accuracy of reports and payments made under this Agreement
or
other compliance issues. In the event that any such inspection shows an
overcharge to Hybrid in excess of ten percent (10%) for any twelve (12) month
period, then Zingo shall pay the cost of the audit as well as any additional
sum
that would have been not been payable by Hybrid had Zingo priced lithium ion
batteries sold to Hybrid correctly.
ARTICLE
5.
(a) Zingo
shall have the right to control, at its expense and with counsel of Zingo’s
choice, the prosecution and maintenance of the Patent Rights as they pertain
to
the Licensed Field (the “Licensed Field Patent Rights”). Hybrid shall provide
Zingo with copies of all relevant documentation relating to such prosecution.
Hybrid shall cooperate in good faith and use diligent efforts to support Zingo’s
prosecution and maintenance activities.
(b) Hybrid
agrees that if Zingo is unable because of Hybrid’s unavailability, dissolution
or for any other reason to secure any signatures in connection with the
prosecution and maintenance of the Licensed Field Patent Rights, then Hybrid
hereby irrevocably designates and appoints Zingo and its duly authorized
officers and agents as Hybrid’s agent and attorney in fact, to act for and in
Hybrid’s behalf and stead to execute and file any documents and to do all other
lawfully permitted acts to further the prosecution, issuance and maintenance
of
the Licensed Field Patent Rights with the same legal force and effect as if
executed by Hybrid.
(c) In
the
event Zingo desires to terminate or cease maintenance of any Licensed Field
Patent Rights, it shall notify Hybrid, and Hybrid shall have the opportunity
to
control, at its expense, the prosecution and maintenance of such Licensed Field
Patent Rights.
(d) Hybrid
will promptly provide to Zingo copies of all existing files and records
pertaining to the Licensed Field Patent Rights, including without limitation
all
office actions, drafts, receipts, drawings, correspondence, disclosures, models,
copies, prototypes, diagnostic reports, prior art and analyses.
(a) Each
party
shall notify the other party in writing of any suspected infringements of the
Patent Rights.
(b) Zingo
shall have the right, but not the obligation, to institute and control the
prosecution of a suit or to take any other action for any of the Licensed Field
Patent Rights. Hybrid agrees to take no action with respect to any third-party
infringement of Licensed Field Patent Rights unless expressly authorized to
do
so in writing by Zingo. Hybrid agrees to cooperate with Zingo in all respects,
to make employees of Hybrid available to testify, and to join in any such suit
as a voluntary plaintiff, upon Zingo’s request.
(c) Any
recovery or settlement obtained as a result of such suit or other action shall
be retained by Zingo, and Hybrid shall have no rights whatsoever in any such
recovery or settlement, except that any such recovery or settlement shall be
treated as a reduction in Zingo’s manufacturing costs, for purposes of
calculating sale prices of lithium ion batteries to Hybrid, after deduction
of
costs and expenses incurred by Zingo in bringing and controlling any such suit
or action.
(d) In
the
event the suspected infringement is in the Retained Field, then the parties
shall discuss in good faith and strategize regarding the institution and
prosecution of a suit or other action.
ARTICLE
6.
ARTICLE
7.
(a) Hybrid
represents and warrants:
(1) that
it
is the sole owner of the Patent Rights and has the lawful right to grant this
license;
(2) that
none
of the Patent Rights are the subject of any pending interference, opposition,
cancellation or other challenge or adversarial proceeding;
(3) it
has
neither assigned nor granted any license or other rights to the Patent Rights
and it is under no obligation to grant any such license or rights to any third
party;
(4) there
are
no outstanding liens, encumbrances, third party rights, agreements or
understandings of any kind, either written, oral or implied, regarding the
Patent Rights which are inconsistent or in conflict with any provision of this
Agreement; and
(5) the
execution and delivery of this Agreement, and the performance by Hybrid of
its
obligations hereunder have been duly authorized by all necessary corporate
or
other action on the part of Hybrid, and no consents, waivers, or permissions
that have not already been granted are required for such actions.
7.2 HYBRID
HEREBY DISCLAIMS ANY IMPLIED WARRANTIES WITH RESPECT TO THE PATENT RIGHTS,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE
8.
(a) on
the
date of delivery if delivered in person, or
(b) five
(5)
days after mailing if mailed by first-class or certified mail, postage paid,
to
the parties’ respective addresses set forth above, attention: President, or to
such other address as is designated by written notice given to the other
party.
8.6 Governing
Laws. THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH
THE
LAWS OF THE STATE OF NEVADA, without regard to the conflicts of laws principles
thereof, but the scope and validity of any patent or patent application shall
be
governed by the applicable laws of the country of the patent or patent
application.
Zingo, Inc.: | Hybrid Technologies, Inc. | ||
/s/ Xxxxxxx Xxxxxxxx | /s/ Xxxxx Xxxxxxxxx | ||
By__________________________ | By__________________________ | ||
(Signature)
|
(Signature)
|
||
Name: Xxxxxxx Xxxxxxxx | Name: Xxxxx Xxxxxxxxx | ||
Title: Secretary | Title: Chief Executive Officer |
EXHIBIT
A
List
of
Patents and Patent Applications
22854-002-
“Rechargeable Battery Cathode Material”- PTO assigned application # 60/947,168
with a filing date of 06/29/2007- Inventor Xxxxxxxx, Xxxxxxx
EXHIBIT
B
Equipment
and Supplies to be Purchased from Hybrid Technologies, Inc.
Date | Vendor | Amount | PO # | Equipment and Supplies |
4/25/07 | AHL Machinery Corp | $21,750.00 | 1159 | mixer, temperature control system |
10/19/07 | Alfa Aesar | $2,505.00 | 1186 | titanium, polyvinyl alcohol |
$4,750 | electric hook up | |||
Total | $29,005.00 |