LICENSE AND JOINT VENTURE AGREEMENT (Proposed)
(Proposed)
DATE:
March _____, 2006
PARTIES:
Axial
Vector Engine Corporation
0000
XX
00xx
Xxxxxx
Xxxxxxxx,
XX 00000
TRANS
MAX
TECHNOLOGIES, INC.
One
World
Trade Center
000
XX
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx,
XX 00000
THIS
AGREEMENT is
made
this _____ day of March 2006, to be effective April ___, 2006, by and between
Axial Vector Engine Corporation (hereinafter Axial) and Trans Max Technologies,
Inc. (hereinafter Trans Max) for the development, production and marketing
the
Axial Vector™ Engine in conjunction with US Patents Nos. 6,886,776 and 6,892,979
for use in a VTOL Personal Aircraft.
RECITALS
1. Axial,
a
Nevada corporation, is engaged in developing engine technology.
2. Trans
Max, a Nevada corporation, is seeking engine technologies for use in a flying
vehicle.
3. Axial
is
seeking to market their engine technologies for potential commercial
uses.
4. Trans
Max
and Axial are desirous of entering into a relationship by way of this Agreement
wherein Trans Max license the right to produce the Axial Vector
EngineÔ
(hereinafter the Engine) for use in a flying vehicle.
5. All
of
the above recitals are hereby made an integral part of this Agreement and shall
have substantive effect in interpreting the provisions of this
Agreement.
April 16,
2006 Trans
Max - Axial
Vector
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TERMS
AND CONDITIONS
WHEREAS,
Axial
represents that it possesses the skill and ability to configure the Engine
for
use in a VTOL Personal Aircraft, and wherein Trans Max can build prototypes,
test and upgrade the Engine and market it for commercial use in the VTOL, and
where it is deemed to the mutual benefit of Trans Max and Axial to enter into
this Agreement upon the terms and conditions set forth.
NOW
THEREFORE, in
consideration for the mutual covenants and promises herein contained, the
undersigned hereby agree to the following:
1. RELATIONSHIP
BETWEEN
TRANS
MAX AND
AXIAL
a. Axial
will license to Trans Max the right to the Engine for use in a flying vehicle,
including upgrades and building a prototype, testing and marketing the VTOL
Personal Aircraft.
b. Trans
Max
will expend its best efforts in production and modification of the VTOL Personal
Aircraft to allow for maximum promotion, marketing and sales.
c. Axial
will grant Trans Max the exclusive rights to use the Engine for VTOL Personal
Aircraft. Axial will keep the exclusive rights to the Engine, including any
patentable rights that may be developed by Trans Max. Axial will retain
ownership of all design of the Engine, including upgrades, developments and
modifications by Trans Max.
d. In
exchange for the exclusive rights to use and produce the Engine for VTOL
Personal Aircraft, Axial shall receive a license fee from Trans Max in the
amount of twenty-five percent (25%) of net revenues generated by Trans Max
through the sale of VTOL Personal Aircrafts which utilize the Engine.
e. The
terms
of this Agreement shall last for a period of five (5) years unless terminated
by
joint agreement of the parties or pursuant to the terms of this Agreement and
will be renewable for additional five (5) year periods upon agreement of the
parties. This Agreement and any renewals shall be exclusive.
f. Axial
and
Trans Max will use their best efforts to perform their duties and
responsibilities pursuant to this Agreement.
g. If
Trans
Max reaches a point where it is determined that the application of the Engine
will not work for the VTOL Personal Aircraft or the VTOL Personal Aircraft
is
not feasible, Trans Xxx xxx terminate this Agreement and there will be no
liabilities between the parties, as long as all existing and new intellectual
April
16,
2006 Trans
Max - Axial
Vector
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property,
technologies and information is returned to
Axial, and any of Axial’s costs of design and modification requested by Trans
Max are paid to Axial.
h. The
intent of Trans Max is that the VTOL Personal Aircrafts will be ultimately
produced by Trans Max in conjunction with a Joint Venture partner, who will
provide manufacture and production, in the United Arab Emirates, for use in
that
country and others as appropriate regulations and guidelines are
met.
i. Both
parties acknowledge that Xxxxxx X. Xxxxxxx is a majority shareholder, director
and officer of both companies and both Boards of Directors were aware of this
in
approving this Agreement with Xxxxxx X. Xxxxxxx abstaining from
voting.
2. NON-COMPETITION
a. During
the term of this Agreement, neither Trans Max nor Axial, nor any person employed
or engaged by Trans Max or Axial to fulfill its duties under this Agreement,
shall, directly or indirectly, compete with this Agreement in the promotion,
marketing, sales and production of Axial technology. The term “indirectly,” as
used above, includes acting as a paid or unpaid director, officer, agent,
employee of, or consultant to any enterprise, or acting as a proprietor or
an
enterprise, or holding any direct or indirect participation in any enterprise
as
an owner, partner, limited partner, joint venture, shareholder or creditor.
This
provision shall not be construed to affect either parties performance under
this
agreement
b. Neither
Axial nor persons employed or engaged by Axial to fulfill its duties under
this
Agreement shall, directly or indirectly, disclose or use at any time, whether
during the term of this Agreement or after its expiration or termination, any
confidential information, knowledge or data relating to Trans Max’s business or
the products, technology and process of which Axial or its employees, agents
or
contractors become aware in the course of their activities under this Agreement.
Such information, knowledge or data includes, but is not limited to, client
and
customer lists, sale files or records, price information, Product
specifications, trademark files or records, and warranty claims or reports,
mailing lists and good will or other intangible property used or useful in
connection with the business of the company signing this Agreement.
c. Neither
Trans Max nor persons employed or engaged by Trans Max to fulfill its duties
under this Agreement shall, directly or indirectly, disclose or use at any
time,
whether during the term of this Agreement or after its expiration or
termination, any confidential information, knowledge or data relating to Axial’s
April
16,
2006 Trans
Max - Axial
Vector
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business
or the products, technology and process of which Trans Max or its employees,
agents or contractors become aware in the course of their activities under
this
Agreement. Such information, knowledge or data includes, but is not limited
to,
client and customer lists, sale files or records, price information, Product
specifications, trademark files or records, and warranty claims or reports,
mailing lists and good will or other intangible property used or useful in
connection with the business of the company signing this Agreement.
d. If,
in
any judicial proceeding, a court of competent jurisdiction shall refuse to
enforce any of the separate covenants deemed included in this Agreement, or
shall find that the term or geographic scope of one or more of the separate
covenants is unreasonably broad, the parties shall use their best good faith
efforts to attempt to agree on a valid provision which shall be a reasonable
substitute for the invalid provision. The reasonableness of the substitute
provision shall be considered in light of the purpose of the covenants and
the
reasonable interests of the parties signing this Agreement. The substitute
provision, then the invalid or unreasonably broad provision shall be deemed
deleted or modified to the minimum extent necessary to permit
enforcement.
3. CONFIDENTIALITY:
NON-DISCLOSURE
a. The
parties understand that each party may have access to customer lists, credit
information, customer contracts, trade secrets, research data, drawings, product
specifications, warranty information, production processes, supply sources,
supply contracts, plans, models, sales data, cost, price and other financial
information, and other materials of the other party and its customers and
suppliers as they may exist from time to time. The parties agree that such
information and materials are valuable and unique assets of each party’s
business, and that disclosure of such items would be detrimental to the other
party. Each party, therefore, agrees:
b. The
parties will not at any time, or in any fashion, form or manner, either directly
or indirectly, divulge, disclose or communicate to any person, firm or
corporation in any manner whatsoever, any information of any kind, nature or
description concerning any matters affecting or relating to the business of
the
other party, including without limiting the generality of foregoing the names
of
any of its customers, the prices it obtains or has obtained or at which it
sells
or has sold its products or at which it buys or has bought materials, components
or other supplies, the methods or processes of production or manufacture of
its
products or any other information of, about or concerning the business of the
other party, its relations with its employees, and its manner of operation,
its
plans, or other data of any kind, nature or description, the parties hereby
April
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2006 Trans
Max - Axial
Vector
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stipulating
that as between them the same are important, material, confidential and are
trade secrets and gravely affect the effective and successful conduct of the
business of the other party and its goodwill, and that any breach of the terms
of this section is a material breach hereof.
c. During
and after the term of this Agreement, not to take, without the written consent
of the other party, any notes, reports, calculations, plans, models, sales
data,
papers, drawings, documents, contracts, customer and supplier lists, diaries,
phone information, trade secrets, research data, production processes, product
specifications, blueprints, correspondence, memoranda, or other written records
or materials belonging to the other party or in its possession. Both parties
also covenant and warrant not to take any computer diskettes, magnetic tapes
or
other storage media in any tangible form containing such information. Upon
termination of this Agreement, each party shall immediately deliver all the
materials described in this paragraph to the other party.
d. Neither
the receiving party nor any employee of the receiving party nor any outside
consultant to whom said items are disclosed shall be liable to the disclosing
party under this Agreement for use or disclosure to other of the items or
information pertaining thereto disclosed to any of them if the
same:
| i. |
Was
published or in the public domain on or before the date of this Agreement
or at the time disclosed or used;
or
|
| ii. |
Was
known to or otherwise belonged to the receiving party on or before
the
date of this Agreement; or
|
| iii. |
Is
disclosed by the receiving party inadvertently despite the exercise
of the
same degree of care as the receiving party takes to preserve its
own
proprietary information; or
|
| iv. |
Is
disclosed or used by the receiving party after three (3) years from
the
date of this Agreement.
|
e. This
non-disclosure and confidentiality covenant shall not affect Axial or Trans
Max
or their assigns from making normal-course disclosures pursuant to SEC
regulations or from issuing press releases or from providing such information
as
may be necessary to carry out the terms and conditions of this Agreement and
the
obligations and duties contemplated thereunder.
f. Trans
Max
will have its Joint Venture partner sign an identical non-disclosure agreement
covering Axial.
April
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2006 Trans
Max - Axial
Vector
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g. Injunction.
Each
party agrees that it would be difficult to measure damage to the other party
from any breach by either party of this section, and that monetary damages
are
an inadequate remedy for such breach. Accordingly, each party agrees that if
the
other party shall breach the terms of this section, the non-breaching party
shall be entitled, in addition to all other remedies it may have at law or
in
equity, to an injunction or other appropriate orders to restrain such breach
without showing or proving any actual damage sustained by the breaching
party.
4. Termination
a. Either
party may terminate this Agreement only after the occurrence of any of the
following events. Termination may not occur until written notice has been given
to the other party and the other party has been given sixty (60) days to cure
the breach:
i. Either
party’s failure to perform any of its obligations secured by this
Agreement.
ii. Either
party’s engaging in any practice with respect to the products, technology and
process which is determined to be an illegal or unfair trade practice in
violation of any applicable federal, state, provisional or local law, or, which
in the opinion of counsel to a party, is an illegal or unfair trade practice
in
violation of any applicable federal, state, provincial or local law for a period
of twenty (20) days after Trans Max has notice of said violation;
iii. Either
party’s falsification of any records or reports provided to the other
party;
iv. Either
party’s failure to act in good faith and in a commercially reasonable manner in
connection with its obligations under this Agreement;
v. Either
party’s loss through failure to renew or because of suspension, cancellation or
revocation for a period of fifteen (15) days or more, of any federal, state
or
local license required by law and necessary in carrying out the provisions
of
this Agreement.
vi. Any
change in Trans Max’s active management, which change, in the opinion of Axial,
will have a material effect on Axial’s ability to design and provide the Engine
for Trans Max’s purposes.
April
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2006 Trans
Max - Axial
Vector
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vii. Any
change in Axial’s active management, which change, in the opinion of Trans Max,
will have a material effect on Trans Max’s ability to market and promote the
products.
b. In
the
event of termination, the parties may still assert any other remedies against
the other that they would have had in the event of a breach of this
Agreement.
c. After
the
expiration of this Agreement, or termination of this Agreement in accordance
with this Section 4, neither party shall have any other rights or obligations
in
respect of each other except that any such expiration or termination shall
be
without prejudice to the rights and obligations of the parties in respect to
the
prospects already leased or developed.
5. Disputes;
Provisions for
Arbitration
The
parties hereto agree that any dispute shall be arbitrated under the rules of
the
American Arbitration Association.
6. Specific
Performance
The
parties understand and agree that the subject matter and mutual commitments
set
forth in this Agreement are unique and, for that reason among others, the
respective parties will be irreparably damaged in the event that this Agreement
is not specifically enforced. Accordingly, in the event of any breach or default
in this Agreement or any of its terms or provisions hereof by any party hereto,
the other party hereto shall have the right to demand and have specific
performance of this Agreement.
7. Binding
Effect
Except
as
otherwise expressly provided in this Agreement, this Agreement shall be binding
upon and shall inure to the benefit of the parties to this Agreement and their
heirs, personal representatives, successors and assigns. Each party to this
Agreement covenants that he will execute such reasonable documents and perform
such reasonable acts as may be required from time to time to carry out the
terms
and conditions of this Agreement.
8. Governing
Law
This
Agreement shall be governed by and interpreted by the laws of the State of
Nevada.
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2006 Trans
Max - Axial
Vector
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9. Force
Majeure
Trans
Max
shall use its best efforts to fill orders promptly and to meet requested dates
of shipment. Trans Max shall not be liable for delays in delivery or failure
to
manufacture due to causes beyond its reasonable control, such as acts of God,
acts of Axial, acts of civil or military authorities, terrorism, fires, strikes,
floods, wars, riots and other causes of any similar nature. Upon the occurrence
of a force Majeure event, Trans Max shall be excused from any further
performance or observance of any such affected obligation for as long as such
circumstance prevail and Trans Max continues to attempt to recommence
performance to the greatest extent possible without delay.
10. Notices
All
notices provided for by this Agreement shall be made in writing by delivering
personally or by mailing of such notice to the parties hereon, registered or
certified mail, postage prepaid, at the following addresses or at such other
addresses designated in writing by one party to the other:
Axial:
0000
XX
00xx
Xxxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx, XX 00000
Trans
Max:
One
World
Trade Center
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
000 XX Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
11. Attorney’s
Fees
In
the
event an action shall be brought by any party hereto to enforce the terms
referred to in this Agreement, or any controversy arising therefrom, the
prevailing party in each suit shall be entitled to the payment of reasonable
attorney’s fees which shall be fixed by the court or the
arbitrator.
12. Remedies
The
parties hereto agree and acknowledge that the obligations of the parties
described in this Agreement herein are of a unique and special nature and the
aggrieved party will not have an adequate remedy at law in the event of failure
of a party to abide by such terms and conditions nor will money damages
adequately compensate for such injury. It is, therefore, agreed between the
parties that
April
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2006 Trans
Max - Axial
Vector
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for
any
violation by the other party of the terms and conditions of this Agreement,
a
restraining order or an injunction may be issued or a decree of specific
performance be ordered by court of equity, in addition to any other right or
remedies which the parties may have at law or in equity.
13. Subject
Headings
The
subject headings of the paragraphs and subparagraphs of this Agreement are
included solely for the purpose of convenience only, and shall not affect the
construction or interpretation of any of the provisions of this
Agreement.
14. Amendments
No
supplement, modification or amendment of this Agreement shall be binding unless
executed in writing by the parties hereto.
15. Personal
Nature of
Agreement;
Limitations
on Assignment
The
benefits of this Agreement may be assigned to an entity or entities which are
owned and/or controlled by one or more of the parties hereto. However, this
Agreement is made on a personal level among the parties and each party agrees
that, on an individual basis, there will be no substitution or authorization
of
a third party to become a party to this Agreement or to perform services on
behalf of the other party except
with the
prior written agreement and authorization of all parties to this Agreement.
The
parties are very comfortable with their relationship with each other but neither
party wants to become involved with a third party without first receiving
written notice and giving their prior written consent thereto.
16. Entire
Agreement and
Waiver
This
Agreement contains the entire Agreement between the parties hereto, and
supersedes all prior and contemporaneous agreements, arrangements, negotiations
and understandings between the parties hereto relating to the subject matter
hereof. There are no other understandings, statements, promises or inducements,
oral or otherwise, contrary to the terms of this Agreement. There are no
representations, covenants or conditions, express or implied, whether by statute
or otherwise, other than as set forth herein by any party hereto. No supplement,
modification or termination of any term or condition shall be binding unless
executed in writing by the parties to be bound thereby. No waiver of any term,
provision or condition of this Agreement, whether by conduct or otherwise,
in
any one or more instances, shall be deemed to be or shall constitute a
continuing waiver, and no waiver shall be binding unless executed in writing
by
the party making the waiver.
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2006 Trans
Max - Axial
Vector
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17. Representation of
Authority to
Execute
Agreement
Each
party to this Agreement represents that he has full power and authority to
execute this Agreement and that the execution of this Agreement is not contrary
to any existing security agreement or obligation of the undersigned.
18. Counterparts
This
Agreement may be executed under one or more counterparts, each of which shall
be
deemed an original, and all of which together shall constitute one and the
same
instrument.
19. Additional
Documents
Both
parties agree to execute any additional documents or agreements contemplated
by
this Agreement or required hereunder.
IN
WITNESS WHEREOF, the parties hereto have entered into and caused this Agreement
to be executed by persons duly authorized.
TRANS
MAX
TECHNOLOGIES, INC.
AXIAL
VECTOR ENGINE CORPORATION
By:______________________________
By:________________________________
Xxxxxx
Xxxxxxx,
President
Xxxxxxx
Xxxxxxx, President
Dated:
February _____,
2006 Dated:
February ______, 2006
April
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2006 Trans
Max - Axial
Vector
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