AGREEMENT FOR RE-ENGINEERING AND MANUFACTURE OF NEW BDS DEVICE
Exhibit 10.1
THIS
AGREEMENT is made and entered into as of the date last entered below and upon
the payment of $20,000 to GT for previous services provided, which payments must
be made to GT by no later than August 15, 2010 ("the Effective Date"), by and
between Guided Therapeutics, Inc. ("GT"), a corporation having an address of
0000 Xxxxxxxxx Xxxxxxx Xxxx, Xxxxx X, Xxxxxxxx, XX 00000 and Biofield Corp.
("BZEC"), a Delaware corporation, having an office at 000 Xxxxxxxxx Xxxxxx,
Xxxxx, XX 00000. In addition, prior to commencing work on the subject
project, GT shall receive a further payment from BZEC of $250,000 towards the
re-engineering and development of that certain BDS technology, which payment
must be made to GT no later than January 30, 2011.
WHEREAS,
XXXX XXXXXX, PhD ("XX. XXXXXX") owns the exclusive rights in and to technology
relating to electrical and ionic methods, apparatus, and devices for the in vivo
and in vitro screening and diagnosis of disease states, including the technology
described in more detail below,
AND
WHEREAS, BZEC has entered into an agreement with XX. XXXXXX of even date
herewith, to obtain the exclusive rights to utilize the technology described
herein and eventual ownership of same,
NOW
THEREFORE, for and in consideration of the foregoing and the mutual covenants
and agreements contained herein, the parties hereto agree as
follows:
1. Definitions
As used herein:
1.1 "Licensed Technology" means any
technology pertaining to the utilization of electrical, electropotential, or
electrical impedance, for the noninvasive screening, detection, or diagnosis of
disease states in an organism, including but not limited to:
(a) The patent application which
describes the invention of utilizing extremely low frequency electromagnetic
fields for the screening and diagnosis of disease states in an organism,
and
1.2 "Licensed Method" means any method
which is claimed in a patent application.
1.3 "Licensed Product(s)" means any
product, including devices and disposable components of the device system, which
are claimed in a patent application.
1.4 "Agreement" means this Agreement
including all Exhibits attached to this Agreement together with any written
amendments of any of the foregoing.
2. License
2.1 License. Pursuant
to that certain Agreement between BZEC and
XX. XXXXXX, XX. XXXXXX has granted to BZEC the exclusive right and license to
use and exploit the Licensed Technology to make, have made, use, market, lease,
and sell Licensed Products and, if that agreement is fulfilled BZEC will own the
IP rights to the Licensed Technology.
2.2 Developmental
Information. Upon execution of this Agreement and the
Agreement with XX. XXXXXX, XX. XXXXXX shall provide GT with the Licensed
Technology and all information relating to the development of the Licensed
Technology, including but not limited to blueprints, working drawings, and data
and information relating to manufacture of Licensed Products.
2.3 Ownership of
Technology. Upon the payment by BZEC of all monies agreed to
be paid to XX. XXXXXX under the Agreement between XX. XXXXXX and BZEC, the
latter will then own the Licensed Technology and all information relating to the
development of the Licensed Technology, including but not limited to blueprints,
working drawings, and data and information relating to manufacture of Licensed
Products. If the Agreement between XX. XXXXXX and BZEC fails, then
exclusive title to the Licensed Technology and all information relating to the
development of the Licensed Technology, including but not limited to blueprints,
working drawings, and data and information relating to manufacture of Licensed
Products shall remain with XX. XXXXXX.
3. Development and
Re-engineering
3.1 GT agrees to use all
reasonable efforts to develop the new Biofield BDS Device ("Work"), as
follows:
(a) Plan. The method
and approximate timing of the development and re-engineering of the new Biofield
Device is set forth in Exhibit "A," hereto;
(b) Cost. Approximately
$400,000 to $500,0000 (see Exhibit "A");
(c) Timing. Payment of
the initial $250,000 must be made to GT no later than January 30,
2011. Completion of the re-engineering and development phase is
expected to occur within six (6) months of payment of the $250,000 to GT and
agreement by both BZEC and GT on product specifications, not including CE
inspection.
(d) Interim
Payments. Within sixty (60) of the initial payment and GT's
commencement of Work, BZEC will pay $125,000 to GT. Should GT not
receive this payment, GT reserves the right, at its sole discretion, to cease
further work until it receives the said payment or the Agreement terminates in
accordance with paragraph 7.1, below.
(e) Final
Payment. Within thirty (30) days before the scheduled CE
inspection, BZEC will pay to GT the balance due. Should GT not
receive this payment, GT reserves the right, at its sole discretion, to cease
further work until it receives the said payment or the Agreement terminates in
accordance with paragraph 7.1, below.
2
4. Manufacture of
Units
4.1 Number of Units. GT
shall manufacture a minimum of 100 Biofield Prototypes at cost (including parts,
labor, warranty and overhead) plus a profit margin of thirty-five (35%)
percent.
4.2 Additional
work. Any other work requested of GT by BZEC beyond the scope
of the development, re-engineering and manufacturing described in sections 3 and
4.1 above, will
be quoted
in advance and then accepted (by Purchase Order) or rejected by
BZEC.
5. Additional
Services.
5.1 Any other services
requested by BZEC of GT shall be governed by a written request for a quote and
purchase order.
6. Confidentiality
6.1 Agreement Terms.
(a) During the term or this
Agreement and for five (5) years thereafter, GT shall not divulge to any third
party any written information provided by BZEC and prominently marked
"CONFIDENTIAL" when so provided; provided, however, that GT shall not be
obligated to maintain as confidential any information now or hereafter in the
public domain through no fault of GT or any information ordered to be divulged
by a Court of competent jurisdiction, except that if BZEC shall default on this
Agreement, then this paragraph shall be of no effect.
7. Term and
Termination
7.1 Duration. This
Agreement shall commence upon the Effective Date. This Agreement
shall terminate upon the completion by GT of the above-stated
tasks. Should BZEC desire that GT manufacture additional Biofield
Devices, either a new contract may be entered by the parties hereto or the
parties hereto may amend this agreement. If BZEC defaults in any
payment to GT required by this Agreement and remains in default for ten (10)
business days after notice of default from GT, GT may void this Agreement by
sending written Notice in accordance with paragraph 9.3. If this
Agreement shall be terminated as immediately aforesaid, GT shall have no
obligation to perform any further work for BZEC or to return any monies paid to
it by BZEC under this Agreement. GT will provide BZEC with copies of
blueprints, working drawings, and data and information relating to manufacture
of Licensed Products which it has created from the Effective Date to the default
date.
3
8. Cooperation.
8.1 GT agrees to extend
reasonable efforts to answer inquiries from any funder of BZEC or its
representatives, counsel or consultants regarding the development,
re-engineering and/or manufacture of the Biofield Devices in accordance with
this Agreement.
8.2 GT agrees to extend
reasonable efforts to answer inquiries from any major customer of BZEC or its
representatives, counsel or consultant regarding the development, re-engineering
and/or manufacture of the Biofield Devices in accordance with this
Agreement.
9. Miscellaneous and
General
9.1 Interpretation. The
parties are equally responsible for the preparation of this Agreement, and in
any legal proceeding the terms hereof shall not be more strictly construed
against one party than the other.
9.2 Resolution of
Disputes. In the event the parties have a dispute or claim of
any kind arising under this Agreement that they are unable to resolve through
direct communications, such dispute
shall be resolved through arbitration pursuant to the rules of the American
Arbitration Association; provided, however, that (1) the Federal Rules of
Evidence shall apply during any such arbitration, (2) any discovery permitted
during such arbitration shall be completed within ninety (90) days of
commencement of such arbitration, and (3) such arbitration shall be held in
Atlanta, GA if either party asserts a claim against the other.
9.3 Notices. All
notices, statements and reports required or contemplated herein by one party to
the other shall be in writing and shall be deemed to have been given upon
delivery in person or upon the expiration of seven (7) days after deposit in a
lawful mail depository, registered or certified mail postage prepaid, and
addressed as follows:
If to BZEC:
Biofield Corp.
Suite One
000 Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
ATTN: Xxxx X. Xxxxxxxxxx,
Esquire
Facsimile: 000-000-0000
E-mail: xxxxxxxx@xxx.xxx
If to Guided Therapeutics,
Inc.:
Guided Therapeutics, Inc.
0000 Xxxxxxxxx Xxxxxxx Xxxx Xxxxx
X
Xxxxxxxx, XX 00000
ATTN: Xxxx X. Xxxxxx,
Ph.D.
Facsimile: 000-000-0000
Email:
xxxxxxx@xxxxxxxxx.xxx
4
Either
party hereto may change the address to which notices to such party are to be
sent by giving notice to the other party at the address and in the manner
provided above. Any notice herein required or permitted to be given
may be given, in addition to the manner set forth above, by telex, facsimile or
cable, provided
that the party giving such notice obtains acknowledge-ment by telex, facsimile
or cable that such notice has been received by the party to he
notified. Notice made in this manner shall be deemed to have been
given when such acknowledgement has been transmitted.
9.4 Assignments and
Inurement. Except to the extent otherwise herein provided,
neither party shall grant, transfer, convey, sublicense or otherwise assign any
of its rights or delegate any of its obligations under this Agreement without
the prior written consent of the other, which consent shall not be unreasonably
withheld, except in connection with the reorganization or sale of substantially
all of the assets of the party's business or as otherwise explicitly permitted
in this Agreement, and any attempt to do so shall be of no
effect. This Agreement shall be binding upon and inure to the benefit
of the successors and permitted assigns of the parties hereto.
9.5 Prior
Inventory. BZEC shall pay to GT the sum of $20,000, on or
before July 30, 2010, as full payment for any and all GT charges for storage of
existing BZEC materials stored at GT. GT herein agrees that upon
receipt of this payment, for itself and for its affiliates, subsidiaries,
directors, officers, employees and any representative of any kind, it does
release and
forever discharge BZEC and its affiliates, subsidiaries, directors, officers,
employees and any representative of any kind from any
and all claims, demands, damages, costs, expenses, loss of services, actions and
causes of action, arising from the storage of the aforesaid BZEC materials at
GT.
9.5 (a) Prior Inventory --
Removal.
BZEC shall be responsible to retrieve,
within sixty (60) days of the Effective Date of this Agreement, at its sole cost
and expense, all BZEC materials currently at GT, including but not limited to
old devices, schematics, brochures, etc. If BZEC should fail to
retrieve the aforesaid materials within the specified time, ownership of these
materials shall, without more, revert to GT.
9.6 Entire
agreement. This Agreement constitutes the entire Agreement
between GT and BZEC with respect to the subject matter hereof and shall not be
modified, amended or terminated except as herein provided or except by another
agreement in writing executed by the parties hereto.
9.7 Headings. The
section and paragraph headings are for convenience and are not a part of this
Agreement.
9.8 Severability. All
rights and restrictions contained herein
may be exercised and shall be applicable and binding only to the
extent that they do not violate any applicable laws and are intended to be
limited to the extent necessary so that they will not
render this Agreement illegal, invalid or unenforceable. If any provision or
portion of any provision of this Agreement not
essential to the commercial purpose of this Agreement shall be held to be
illegal, invalid or unenforceable by a court of competent jurisdiction, it is
the intention of the parties that the remaining provisions or portions thereof
shall constitute their agreement with respect to the subject matter hereof, and
all such remaining provisions or portions thereof shall remain in full force and
effect. To the extent legally permissible, any illegal, invalid or unenforceable
provision of this Agreement shall be replaced by a valid provision which will
implement the commercial purpose of this illegal, invalid or unenforceable
provision. In the event that any provision essential to the
commercial purpose of this Agreement is held to be illegal, invalid
or unenforceable and cannot be replaced by a valid provision which will
implement the commercial purpose of this
Agreement, this Agreement and rights granted herein shall
terminate.
5
9.9 Choice of Law. This
Agreement is acknowledged to have been made in and shall be construed in
accordance with the laws of the State of Georgia, United States of America;
provided that all questions concerning the construction or effect of Licensed
Patents shall be decided in accordance with the laws of the country
in which the particular patent application concerned has been filed
or granted, as the case may be.
9.10 Use of Names. BZEC
shall not use GT's name, or the name of any entity affiliated with GT, in any
advertisement or sales material unless it obtains the prior written consent of
GT or the entity proposed to be named, which consent will not be unreasonably
withheld or delayed. The only exception to the foregoing is that BZEC
may use the name of GT and any entity affiliated with GT (if required) for SEC
filings.
IN WITNESS WHEREOF, GT has executed
this Agreement and BZEC has caused this Agreement to be executed by its duly
authorized representative as of the day and year written below.
| GUIDED THERAPEUTICS, INC. | |||
|
Date:
July 27,
2010
|
By:
|
/s/ Xxxx X. Xxxxxx | |
| XXXX X. XXXXXX, PH.D., | |||
| CEO and PRESIDENT | |||
| BIOFIELD CORP. | |||
|
Date:
July 16,
2010
|
By:
|
/s/ Xxxxx Xxxxx Xxxx | |
| Xxxxx Xxxxx Xxxx | |||
| President | |||
6
EXHIBIT
"A"
See
Biofield XX Xxxx Chart -- sent in pdf.
7
