Exhibit 10.6
Confidential treatment has been requested for portions of this document. Deleted
portions are identified with a dotted line under the deleted information.
------------------------------------------------
TECHNOLOGY TRANSFER
AND
LICENSE CONTRACT
FOR
Ni-Zn BATTERY TECHNOLOGY
AMONG
XIAMEN ERC BATTERY CORP. LTD.,
AND
XIAMEN DAILY-USED CHEMICALS CO., LTD.
AND
ENERGY RESEARCH CORPORATION
------------------------------------------------
May 29, 1998
This Technology Transfer and License Contract (this "Contract") made and entered
into as of May 29, 1998, by and between Xiamen Daily-Used Chemicals Co., Ltd.
("Xiamen") A Chinese legal person having its place of business at 000 Xxxxx Xxxx
xx Xxxxxx, Xxxxxx Xxxxxxxx, Xxxxx and Energy Research Corporation ("ERC"), a New
York corporation having its place of business at 0 Xxxxx Xxxxxxx Xxxx, Xxxxxxx,
XX 00000 XXX. Following execution of this Contract Xiamen and ERC anticipate
establishing a joint venture, Xiamen ERC Battery Corp. Ltd., (the "Joint Venture
") that shall become a party to this Contract. Xiamen and ERC agree, that for
purpose of this Contract, Xiamen shall be solely responsible for the obligations
of the Joint Venture hereunder (and the term "Joint Venture" when used herein
shall mean "Xiamen") until, following the establishment of the Joint Venture,
the Joint Venture is made a party to this Contract.
WITNESSETH THAT:
Whereas, ERC has developed certain technology and technical know-how
for a sealed nickel zinc ("Ni-Zn") battery including technology for a
fibrillated electrode, an improved zinc electrode and a lightweight nickel
electrode that uses graphite, ERC has represented to the Joint Venture that such
technology has been used to develop a Ni-Zn battery suitable for use in the
Field ( as defined herein), and has demonstrated and described this technology
to representatives of the Joint Venture and the Joint Venture has determined to
its satisfaction that it wishes to acquire and license the technology for the
purpose of commercializing a Ni-Zn battery in the Field; and
Whereas, ERC, in consideration of the payments and obligations
described herein, wishes to license its know-how to the Joint Venture and enter
into a technology license agreement as set forth herein for the purpose of
allowing the Joint Venture to make, have made and sell or otherwise
commercialize a Ni-Zn battery in the Field and in the Licensed Territories (as
defined herein):
NOW, THEREFORE:
In consideration of the foregoing and the mutual terms, promises and
conditions set forth herein, all of which is hereby acknowledged, the Parties
agree as follows:
I. DEFINITIONS
When used in this Contract, the following capitalized terms
shall have the following meanings:
1.1 "Effective Date" shall mean the date this Contract is
signed by the Parties.
1.2 "ERC Facility" shall mean the ERC facility located at
0 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000, XXX.
1.3 "ERC Know-How" shall mean all of the technical
information, know-how, inventions (whether patented or not), trade secrets, and
other technical, engineering and design information and data, including without
limitation, all processes and techniques owned by ERC or in which ERC acquires a
licensable interest; during the term of this Contract useful for the commercial
manufacture of Ni-Zn batteries within the Field, such as designs, drawings,
blueprints, flow sheets, reports, manuals, specifications, process descriptions,
operating procedures, materials or parts lists and other written or printed
materials that are owned by ERC and which may be useful or helpful to die Joint
Venture in the development and production of Ni-Zn batteries within the Field.
1.4 "Field" means the manufacture, use and sale, lease or
other transfer of Ni-Zn batteries for miner's lamps and two and three wheel
vehicles, applications such as motor bikes, bicycles, scooters, rickshaws,
industrial traction equipment, and off-road recreational vehicles such as golf
carts, boats and all terrain vehicles (ATVs).
1.5 "Licensed Technology" shall mean ERC Know-How.
1.6 "Licensed Territories" means the Exclusive Licensed
Territory and Non Exclusive Licensed Territory. The term "Exclusive Licensed
Territory" shall mean Mainland China, Taiwan, Hong Kong, and Macao and the term
"Non Exclusive Licensed Territory", shall. mean the other countries of Southeast
Asia listed in Annexure A. This Contract does not provide a license to any other
territory.
1.7 "Net Sales" means the sum of all sales, leases and other
transfers of Ni-Zn batteries at the Net Selling Price.
1.8 "Net Selling Price" means the gross invoiced price of
Ni-Zn batteries sold by the Joint Venture or the consideration received by the
Joint Venture if leased or transferred by the Joint Venture or its agents or
affiliates in arms-length commercial transactions in the ordinary course of
business, without any deduction other than returns, rebates and refunds actually
given and die following items of expense to the extent to which they are
actually given or paid and expressly included in the gross invoice price:
1. Sales discounts;
2. Transportation insurance premiums
3. Transport expenses on sales, leases and other
transfers.
For the purpose of computing the Net Selling Price for sales,
leases or other transfers of the Ni-Zn batteries to affiliates of the Joint
Venture or other parties that do not represent arms-length commercial
transactions in the ordinary course of business, the Net Selling Price shall be
determined by the Joint Venture.
1.9 "Party" means ERC or Xiamen until the Joint Venture is
made a party to this Contract and, thereafter, ERC, Xiamen or the Joint Venture
as the case may be.
2
II LICENSE
2.1 License. ERC hereby grants to the Joint Venture for the duration of
the Term stated in Section 6.1, a license of the Licensed Technology solely
within the Licensed Territories and solely within the Field, subject to and in
accordance with the terms and conditions of this Contract. The Joint Venture
agrees that: (a) notwithstanding the transfer of the License Technology
contemplated in this Contract, ERC owns and retains, and shall continue after
the transfer to own and retain, all rights in the Licensed Technology, (b) the
Joint Venture receives hereby only those rights expressly granted to it in this
Contract, and (C) the Joint Venture shall make no use of any trade names or
marks of ERC without ERC's express written consent.
2.2 Exports. The Joint Venture shall not, without ERC's prior written
consent export, cause to be exported or facilitate the export of Ni-Zn batteries
out of either the Exclusive Licensed Territory or the Non-Exclusive Licensed
Territory, nor sell, lease or transfer Ni-Zn batteries to third parties for
export, or sale, lease or transfer, provided however, that the Joint Venture may
(a) export products incorporating the Ni-Zn batteries, and (b) sell, lease or
transfer Ni-Zn batteries to third parties incorporating Ni-Zn batteries into
their products for export, if the manufacture of, and the incorporation of Ni-Zn
batteries into, such products takes place in the Exclusive Licensed Territory
and Non-Exclusive Licensed Territory.
2.3 New Developments. ERC or its assigns shall promptly from time to
time, but at least once a year, disclose to the Joint Venture any know-how or
patents of ERC or its assigns arising or issued after the Effective Date and not
previously disclosed to the Joint Venture, and if reasonably requested by the
Joint Venture, provide the Joint Venture, from time to time, with a list of all
patent applications filed by ERC relating to the Field. Similarly, the Joint
Venture shall promptly disclose to ERC or its assigns any inventions,
discoveries, know-how, technical information, improvements or other
developments, whether or not patentable, relating to the Licensed Technology,
that it develops or in which it acquires a licensable interest during the term
of this Contract. ERC or its assigns shall have a worldwide, perpetual
royalty-free license to use these new developments, for all purposes, outside
the Exclusive Licensed Territory.
2.4 Compliance with Law. The Joint Venture shall comply with all
applicable laws and regulations when using the Licensed Technology, including
any applicable U.S. export control laws, and shall take all steps required to
record and authenticate this Contract and obtain whatsoever Chinese approvals
are required to render it valid and enforceable.
2.5 Other Agreements. During the Term of the license granted under
Section 2.1 hereof ERC will not work independently or with any other entity in
the Field in the Exclusive Licensed Territory.
3
III PAYMENTS
3.1 Transfer Payment. The total payment (the "Transfer Payment") (which
does not include royalties) for the transfer of the Licensed Technology is three
million U.S. dollars (US$3,000,000). This amount shall be paid to ERC by the
Joint Venture within sixty (60) days of the Effective Date of the Joint Venture
Contract.
3.2 Payment Procedures. All payments made pursuant to this Contract
including all royalty payments due under Part V hereof, shall be made by wire
transfer to an account designated by ERC or Xiamen net of any applicable taxes,
withholdings, duties owed by the Joint Venture or ERC or Xiamen (excluding, in
the case of ERC or Xiamen, only income or corporate excise taxes imposed by the
U.S. or P.R.China and its states and instrumentalities respectively).
Accordingly, whatever payment is due hereunder the Joint Venture shall make such
additional payments as are necessary to ensure that the net amounts actually
received by ERC or Xiamen will not be less that the amounts it would have
received if such taxes and the like were not required to be paid. All payments
hereunder shall be made in U.S. dollars or Chinese currency by wire transfer to
a bank account designated by ERC or Xiamen respectively. Where it is necessary
to convert Chinese currency into U. S. dollars for the purpose of calculating
and paying royalties under Part V of this Contract, the exchange rate shall be
determined by reference to the average of the daily exchange rates published by
the People's Bank of China on the day the conversion is made.
3.3 Reinvestment. ERC will reinvest the Transfer Payment of $3 million
received under Section 3.1 hereof or more to purchase a 51% equity interest in
this Joint Venture within 90 days of the Effective Date of the Joint Venture
Contract.
IV TECHNOLOGY TRANSFER
4.1 The Licensed Technology will be transferred to the Joint Venture
for use in the Field pursuant to this Contract upon receipt of the Transfer
Payment made in accordance with Section 3.2 hereof.
4.2 Such transfer shall take place within six (6) months of the
Effective Date of the Joint Venture Contract and at ERC's Facility in Danbury,
CT to persons designated by the Joint Venture. ERC will provide reasonable
support to transfer Licensed Technology at no cost to the Joint Venture in order
for the Joint Venture to duplicate the Ni-Zn battery performance set forth in
Appendix B. Persons designated by the Joint Venture to accept the transfer will
have reasonable access to all personnel and equipment at ERC's Facility to
facilitate the transfer.
4
V. ROYALTIES
5.1 Royalty Payments. As additional consideration for the license
granted herein, the Joint Venture shall pay to ERC a royalty of ________ percent
(____%) on Net Sales of Ni-Zn batteries sold, leased or transferred in the
Exclusive Licensed Territory and ________ percent (____%) on such Net Sales in
the Non-Exclusive Territory. The contract establishing the Joint Venture shall
provide that the Joint Venture shall distribute to Xiamen from its Net Sales
income an amount equivalent to a royalty of ________ percent (____%) on Net
Sales of Ni-Zn batteries sold, leased or transferred in the Exclusive Licensed
Territory and ________ percent (____%) on such Net Sales in the Non-Exclusive
Licensed Territory The obligation to make royalty payments hereunder shall
commence with the first product sales, leases or transfers of Ni-Zn batteries
manufactured by the Joint Venture, its agents or affiliates and royalties shall
thereafter by payable semi-annually thirty (30) days after the close of each
June 30 and December 31 of each year in which products subject to royalty are
sold, leased or transferred. All payments shall be made in accordance with the
payment provisions in Sections 3.2 hereof.
5.2 Records and Reports. The Joint Venture shall keep accurate,
detailed records and books of account containing all information reasonably
required to compute and verify royalties due to ERC and Xiamen under this
Contract, including information concerning products manufactured and assembled
and sales, leases and other transfers by the Joint Venture, its agents and its
affiliates. Such books and records shall be maintained for at least five (5)
years after the year to which they relate. When rendering payment of royalties,
the Joint Venture shall provide ERC and Xiamen with a written accounting showing
the calculation of the royalty, the number of products to which the royalty is
applicable and the Net Selling Price. At its expense, ERC or Xiamen may, by its
designated independent public accountants, audit once annually all Joint
Venture, royalty records and books kept by the Joint Venture to confirm the
accuracy of the Joint Venture's calculations of the Net Selling Price, Net Sales
and royalties due; provided however, that in the event such an audit discloses
that the actual royalty amount due under this Contract for the applicable period
is more than five percent (5%) greater than the royalty amount reported by the
Joint Venture for such period, the Joint Venture shall pay the reasonable costs
of such audit incurred by ERC or Xiamen.
VI. TERM, TERMINATION AND LIABILITY
6.1Term and Termination for Default. The license granted to the
Joint Venture hereby shall continue for a period of _________ years (the "Term")
commencing on the Effective Date of this Contract unless earlier terminated as
provided in this Section. In the event that the Joint Venture (a) fails to make
any payment hereunder when and as due, (b) otherwise materially defaults in its
obligations hereunder and fails to remedy such default within sixty (60) days
after such default has been called to its attention by written notice from the
parties, or (C) is dissolved or liquidated, and in any such event, the other
party, at its
5
option, may terminate this Contract upon sixty (60) days prior written notice,
and all its obligations and the license granted hereunder shall thereupon cease.
6.2 Non-Waiver. No failure or delay on the part of either Party to
exercise any of its rights under any provision of this Contract or for any one
or more defaults shall be construed to prejudice its rights in connection with
such provisions or any continuing or subsequent default.
6.3 Return of Information. Upon termination of this Contract for any
reason before the end of its Term the Joint Venture will promptly deliver and
return to ERC the Licensed Technology and all technical information it has
received from ERC or derived from the Licensed Technology. Thereupon, the Joint
Venture shall not use the Licensed Technology for any purpose and ERC shall have
the right by any legal means to determine that the License Technology is not
being used.
6.4 Liability and Indemnity. ERC makes no warranties concerning any
products developed or manufactured by the Joint Venture. The Joint Venture shall
be responsible for all uses it makes of the Licensed Technology, for compliance
with all laws and regulations, and for any representations, warranties and
liabilities to purchasers of its Ni-Zn batteries. The Joint Venture shall
indemnify and hold harmless ERC and its affiliates from any claims, suits,
costs, damages, losses or liabilities of any kind or nature whatsoever arising
from or in connection with the Joint Venture's use of the Licensed Technology or
sale, lease or other transfer of Ni-Zn batteries. Under no circumstances will
ERC be liable to the Joint Venture for any indirect special or consequential
damages, irrespective of the cause.
VII. CONFIDENTIAL INFORMATION
7.1 Confidentiality. In order to protect the proprietary interest of
ERC in the Licensed Technology, ERC and Xiamen shall enter into a
confidentiality agreement substantially in the form set forth in Appendix D
prior to the transfer of the Licensed Technology pursuant to Section 4.1. The
Joint Venture shall become a party to such confidentiality agreement following
its establishment.
VIII. SUB-LICENSING
8.1 Authorization. The Parties agree that the Joint Venture shall only
be authorized to sub-license Licensed Technology to third parties within China,
Hong Kong, Taiwan and Macao. All such sub-licenses shall be non-exclusive. The
Joint Venture shall determine the terms of such sub-license.
8.2 Revenue Sharing. The contract establishing the Joint Venture shall
provide for the sharing of certain revenue received by the Joint Venture as
provided in Appendix C hereof.
6
IX. REPRESENTATIONS AND WARRANTIES
Each of ERC and Xiamen represents and warrants that:
(a) it is validly existing with the status of a legal person in
its jurisdiction of establishment as evidenced by its business license
or certificate of incorporation;
(b) it has full power and authority under law to enter into this
Contract and perform its obligations hereunder;
(C) the person executing this Contract on behalf of such Party
has been authorized to do so pursuant to a valid resolution of such
Party's board of directors; and
(d) this Contract when executed by such Party, will constitute
the legal, valid and binding obligations of that Party in accordance
with its terms.
X. NOTICES
10.1 Notice Procedures. Any notice or other communication provided
for in this Contract shall be written in English or Chinese and shall be
delivered personally or be sent by telefacsimile or first class mail, postage
prepaid:
If to Xiamen or the Joint Venture:
Xiamen Daily-Used Chemicals Co., Ltd.
and Xiamen ERC Battery Corp., Ltd.
000 Xxxxx Xxxx
Xxxxxx, Xxxxxx, Xxxxxxxx, Xxxxx
Attention: Sheng Qi, General Manager
Tel: [0000-0000000]
Fax: [0000-00000000
If to ERC:
Energy Research Corporation
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, President
Tel: 000-000-0000
Fax: 000-000-0000
7
cc: Xxxx X. Xxxxxx, Manager,
Contracts & Assistant Secretary
or to such other persons, telefacsimile or address as a Party may specify by
notice in accordance with this Section to the other Party. Any notice or other
communication rendered in accordance with this Section shall be deemed to have
been duly given: if delivered personally, when left at the address referred to
above; if sent by airmail, fourteen(14) days after the postmark; or if, sent by
telefacsimile, upon electronic confirmation of receipt of the facsimile by the
transmitter.
XI. MISCELLANEOUS
11.1 Applicable Law. This Contract shall be governed by the laws
of the State of New York, excluding its choice of law principles. Any dispute,
controversy or claim arising out of or in connection with the Contract, or the
breach, termination or invalidity thereof, if not resolved by mutual agreement
between the Parties within sixty(60)days of notice thereof, shall be finally
settled, upon the notice of any Party, by arbitration in accordance with the
Rules of the Arbitration Institute of the Stockholm, Chamber of Commerce. The
arbitration shall be held in Stockholm, Sweden. There shall be one arbitrator
who shall be appointed by the Parties within sixty(60) days of a notice of
arbitration. If the Parties fail to agree on an arbitrator within such time
period, the arbitrator shall be appointed by the Arbitration Institute of the
Stockholm Chamber of Commerce. Such arbitrator shall have the authority to award
any remedy or relief proposed by any Party. Any award rendered shall be rendered
in both the English and Chinese languages and shall be final and binding on the
Parties as from the date rendered. Judgment upon the award may be entered in any
court having jurisdiction thereof. Notwithstanding any dispute under
arbitration, the Parties shall continue to perform this Contract, except for the
matter under dispute. Each Party agrees that should any arbitration or legal
proceedings be brought against it or its assets in relation to the performance
of this Contract no immunity (sovereign or otherwise) shall be claimed by or on
behalf of itself with respect thereto or to any award made in respect thereof.
11.2 Legality. The Parties each declare that~ to the best of their
respective knowledge, as of the date first written above, there are no laws or
regulations in effect that materially limit or restrict their ability to fully
perform their obligations under this Contract.
11.3 Amendment.. This Contract may not modified or amended except
by a writing duly signed by an authorized representative of each Party.
11.4 Effect of Unenforceable Provisions. In the event any one or
more of the provisions contained in this Contract are found to be invalid,
illegal or unenforceable in any respect, such provision(s) shall be deemed
severed and deleted herefrom and the Validity, legality and/or enforceability of
the remaining pro-visions contained herein shall not in any way be affected or
impaired thereby, and the Contract shall be construed insofar as possible to
reflect the commercial basis on which the Parties entered into the Contract.
8
11.5 Government Information, Nothing in this Contract shall
authorize the disclosure of, or access to, classified or restricted information,
material or know-how of the Government of the United State of America to persons
not authorized or licensed to disclose or receive such. classified or restricted
information.
11.6 Relationship. The relationship of the Parties herein shall be
that of independent contractors and nothing herein contained shall be deemed to
create any agency relationship.
11.7 Assignment. No Party may assign its interest in this Contract
without the written consent of the other Party, except to a wholly-owned or
majority-owned subsidiary of the assigning Party.
11.8 Entire Contract. The terms and provisions herein contained
constitute the entire agreement between the Parties as to the subject matter
thereof and supersede all previous and contemporaneous communications,
representations, contracts or understandings, whether written or oral, between
the Parties hereto with respect to the subject matter hereof. This Contract is
written in both the English and Chinese languages; both versions shall be
equally valid.
11.9 Counterparts. This Contract may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures hereto and thereto were upon the same instrument.
9
IN WITNESS WHEREOF, and intending to be legally bound, the Parties
hereto have caused this Contract to be duly executed and delivered on their
respective behalf in a manner binding upon them by their duly authorized
officers, whose signatures appear below, as of the date first above written.
For and on behalf of:
XIAMEN DAILY-USED CHEMICALS CO., LTD.
By: /s/ Shen Qi
Title: General Manager
For and on behalf of:
ENERGY RESEARCH CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Title: President
10
APPENDIX A
DEFINITION OF NON-EXCLUSIVE LICENSED
COUNTRIES IN SOUTHEAST ASIA
For purposes of this Contract the non-exclusive license countries in the
Southeast Asia area are as follows:
1. Brunei
2. Myanmar (formerly known as Burma
3. Cambodia
4. Indonesia
5. Lao
6. Malaysia
7. Philippines
8. Singapore
9. Thailand
10. Vietnam
11
APPENDIX B
NICKEL-ZINC BATTERY PERFORMANCE
Battery Size: __ Ampere-hour __ Volt (__7-cell) Module
Cycle Life: ___ to ___% Depth of Discharge at the
___ Discharge Rate at ___oC
Specific Energy: ___ Wh/kg at the ___ Discharge Rate at
___oC
--------------------
Normal Recharge Time: ___ Hrs at ___ oC
12
APPENDIX C
SHARING OF SUB-LICENSE REVENUE
Capitalized terms used herein shall have the meanings ascribed to
them in the Technology Transfer and License Contract dated May 29,1998 between
Energy Research Corporation and Xiamen Daily-Used Chemicals Co., Ltd.
It is intended that the contract establishing the Joint Venture
will provide for a sharing by ERC and -Xiamen of the payments received by the
Joint Venture pursuant to sub-license agreements entered into between the Joint
Venture and third parties (hereinafter referred to as "Sub-license Revenue") as
follows:
1. Subject to the exception in paragraph 3 below, the first US$
______ of Sub- license Revenue (excluding Royalties) shall be distributed by the
Joint Venture to Xiamen. Thereafter, ______ of the Sub-license Revenue
(excluding Royalties) shall be distributed by the Joint Venture to ERC and
_______ of the Sub-license Revenue (excluding Royalties) shall be distributed by
the Joint Venture to Xiamen.
2. In the event the Joint Venture receives a non-exclusive license
or sub-license to manufacture Ni-Zn batteries for electric or hybrid electric
vehicles, provided Xiamen has received Sub-license Revenue (excluding
Royalties)equal to US$ ______, then, following the Joint Venture's receipt of
such non-exclusive license, the next US$ ______ in Sub-license Revenue
(excluding Royalties) received by the Joint Venture shall be distributed by the
Joint Venture to ERC. Thereafter, Sub-license Revenue(excluding Royalties) shall
be distributed by the Joint Venture in accordance with the last sentence of
paragraph 1 above.
3. In the event the Joint Venture receives an exclusive license to
manufacture Ni-Zn batteries for electric or hybrid electric vehicles, then,
following the Joint Venture's receipt of such exclusive license, the first US$
______ in Sub-license Revenue (excluding Royalties) received by the Joint
Venture shall be distributed by the Joint Venture to ERC. Thereafter, Sub-
license Revenue (excluding Royalties) shall be distributed by the Joint Venture
in accordance with the last sentence of paragraph 1 above.
4. Sub-license Royalties in the Exclusive Territory are intended
to be distributed ______ to ERC and ______ to Xiamen.
13
APPENDIX D
FORM OF
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement(the "Agreement") dated May 29,1998,
is entered into among Xiamen Daily-Used Chemicals Co., Ltd., ("Xiamen") having
its legal address at 722 Xiahe Road, Xiamen, People's Republic of China and
Energy Research Corporation,("ERC") having its legal address at 3 Great Pasture
Road, Danbury, Xxxxxxxxxxx 00000 XXX (each respectively a "Party" and
collectively, the "parties" ). This Agreement is being entered into pursuant to
and in fulfillment of the requirements of Section VH of the Technology Transfer
and License Contract(the "Contract") dated May 29,1998 between Xiamen and ERC.
Accordingly, for good and valuable consideration, and in
consideration of the mutual promises contained herein, all of which is hereby
acknowledged, the Parties agree as follows:
1. The Parties shall, at all times, both during the term of the
Contract and for ten(10) years following its expiration or
termination, keep in confidence all Confidential Information(as
defined below in paragraph 2), and shall not use the Confidential
Information of another Party except in accordance with paragraph 3
below or pursuant to the prior written consent of such Party. The
Parties shall take all necessary measures to maintain the
confidentiality of Confidential Information, including formulating
rules and procedures satisfactory to the Patties to prevent
unnecessary access to an unauthorized disclosure of Confidential
Information.
2. "Confidential Information" shall mean any and all technical and
non-technical proprietary information or know-how, whether or not
protected by patent, copyright or trade secret, that is related to
existing and future technology, products, product development,
improvements, research, engineering, business management, sales,
marketing, financial affairs, or any other information of a
confidential nature relating to any party.
3. The Parties may disclose Confidential Information to their
officers and employees and to their legally authorized agents, but
only to the extent necessary for such Party to carry out its
obligations under the Contract. The Parties shall ensure that all
individuals or entities having access to Confidential Information
are bound by confidentiality agreements at least as restrictive as
this one.
4. Each Party hereby agrees to indemnify and hold the other Party
harmless against any claim, loss, cost, expense, liability or
damage caused by the unauthorized disclosure of Confidential
Information by such Party.
5. This Agreement shall be governed by the laws of the state of New
York without any regard to the principles of the conflict of laws
thereof. Any dispute, controversy or
14
claim arising out of or in connection with this Agreement shall be
finally settled by arbitration in accordance with Section 11. 1 of
the Contract.
6. This Contract may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the
signatures hereto and thereto were upon the same instrument.
IN WITNESS WHEREOF, and intending to be legally bound, the Parties hereto
have caused this Agreement to be duly executed and delivered on their respective
behalf by their duly authorized officers, whose signatures appear below, as of
the date first written above.
XIAMEN DAILY-USED CHEMICALS CO., LTD.
By: /s/ Shen Qi
Title: General Manager
ENERGY RESEARCH CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Title: President
15
