THE “COLLABORATION AND STRATEGIC SUPPLIER RELATIONSHIP FOR NAM” AGREEMENT Between ABB INC. 12040 Regency Parkway, Suite #200 Cary, NC 27518 And ECOtality, INC. San Francisco, CA 94111 January 10, 2011
THE “COLLABORATION AND STRATEGIC
SUPPLIER RELATIONSHIP FOR NAM” AGREEMENT
Between
ABB
INC.
00000
Xxxxxxx Xxxxxxx, Xxxxx #000
Xxxx,
XX 00000
And
0
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
January
10, 2011
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EXECUTION
VERSION
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TABLE OF CONTENTS
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1 -
OVERVIEW
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2
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2 -
BATTERY CHARGING SOLUTIONS COLLABORATION
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2
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3 -
SPECIFIC TERMS AND CONDITIONS OF THE SUPPLIER RELATIONSHIP IN THE NORTH
AMERICAN MARKET
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3
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4 -
GENERAL TERMS AND CONDITIONS OF THE SUPPLIER RELATIONSHIP
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4
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5 -
OTHER CONCERNS
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5
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6 -
CONFIDENTIALITY
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6
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7 -
CHOICE OF LAW
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6
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8 -
TERM
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6
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9 -
NOTICES
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6
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10
- THE ENTIRE AGREEMENT
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7
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EXHIBIT
A - THE FRAMEWORK AGREEMENT
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9
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EXHIBIT
B - GENERAL TERMS AND CONDITIONS OF SALE
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9
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ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page
2 of 9
This
Collaboration and Strategic Supplier Relationship Agreement for NAM (this or the
“NAM Agreement”) is
entered into as of January 10, 2011 (the “Effective Date”), by and
between ABB Inc. (“ABB”) and ECOtality, Inc.
(“ECOtality”), with ABB
and ECOtality each a “Party,” and collectively the
“Parties.” Under
this NAM Agreement, the Parties mutually agree as follows.
1. OVERVIEW
a. Concurrent
with the execution of this NAM Agreement, ABB Inc. and ECOtality Inc. have also
executed the Framework Agreement (i.e. the January 10, 2011
“Collaboration and Strategic Supplier Relationship Framework Agreement”) which
established the general terms of a collaboration and strategic supplier
relationship between the ABB Group and ECOtality and its Affiliates (a copy of
which is attached as Exhibit A (THE FRAMEWORK AGREEMENT).
b. Under
the Framework Agreement, the Supplier Relationship is to be implemented on a
region/country specific basis, but subject to the oversight of the STECO and the
Framework Agreement (as it may be amended from time-to-time).
c. For
NAM, the Supplier Relationship shall be governed exclusively by this NAM
Agreement.
d. Capitalized
terms not expressly defined in this NAM Agreement shall have the meaning
assigned to them in the Framework Agreement.
e. Each
Party is responsible for ensuring that its Affiliates are aware of the NAM
Agreement and act in accordance with its terms, to the extent legally
permissible.
f. To
the extent that there is a concern on how the NAM is to be implemented and/or
interpreted, and the concern is not addressed in this NAM Agreement, the Parties
agree that the STECO and the Framework Agreement shall be utilized by the
Parties in determining the final disposition of any such concern.
2. BATTERY
CHARGING SOLUTIONS COLLABORATION IN NAM
a. In
NAM, as part of the Supplier Relationship, the ABB NAM Parties shall collaborate
with ECOtality and its Affiliates to further the development, expansion, and
acceptance of market-leading Battery Charging Solutions, with ABB, the ABB NAM
Parties, and ECOtality and its Affiliates collectively (the “BCS NAM
Parties”). The BCS Collaboration for NAM shall:
i) Only
apply to Battery Charging Solutions that incorporate, use or rely on ECOtality’s
Proprietary Technology and/or that provide the networking functionality that
ECOtality and its Affiliates have designed and operate, associated with the
BLINK Network Functionality and BLINK Network Products; and
ii) Include:
(a) Support,
between the BCS NAM Parties, for well designed and competitive Battery Charging
Solutions; and
(b) Efforts
by the BCS NAM Parties to expand Battery Charging Solutions that use ABB
Products and also provide the BLINK Network Functionality.
b. As
part of the BCS Collaboration for NAM, the BCS NAM Parties shall use reasonable
business efforts and their respective sales channels for the BCS Collaboration
for NAM. Specifically, so long as there is no uncorrected material
default by ECOtality under this NAM Agreement (which is expressly understood, to
include, but is not limited to, any violation of Section 3(b) (SPECIFIC TERMS
AND CONDITIONS OF THE SUPPLIER RELATIONSHIP IN THE NORTH AMERICAN MARKET)
below), the BCS NAM Parties shall market the BLINK Network Products in NAM as
follows.
ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 3
of 9
i) The
ABB NAM Parties will include BLINK Network Products and ECOtality’s
MicroClimates program in the applicable public relations, marketing
communications and sales training programs of the ABB Group in NAM;
ii) ECOtality
and its Affiliates will advise the ABB NAM Parties of all of its utility
contacts and customers and will endeavor to introduce the ABB Group as part of
ECOtality’s overall Battery Charging Solutions program for utilities in
conjunction with the BLINK Network Products;
iii) ECOtality
will provide, at its Tempe offices, an office for an ABB Group coordination
employee, who will be invited to participate in product and sales meetings
related to BLINK Network Products; and
iv) The
BCS NAM Parties shall provide, to each other and the STECO, reasonable monthly
“Contact Update Reports” which shall outline, with specificity when contacts are
underway and what potential opportunities may exist to allow for common action
and resource planning in relation to the BLINK Network Products between the
Parties and the NAM Affiliates.
3. SPECIFIC
TERMS AND CONDITIONS OF THE SUPPLIER RELATIONSHIP IN NAM
a. To
the extent consistent with the Framework Agreement and the guidance of the
STECO, ECOtality and its Affiliates, to the greatest extent possible, but
without violation of any Federal, State or local procurement regulations or
other applicable laws, rules or regulations, shall purchase or specify to others
to purchase on their behalf ABB Products for all Battery Charging Solutions,
unless ECOtality or its Affiliates can reasonably demonstrate that the ABB
Products do not meet the ECOtality Requirements.
b. For
each ABB Product ordered by ECOtality or its Affiliates from the ABB Group,
whether it is an ABB Component, Assembly, ABB Charging Unit or ABB System,
IF
the pricing by the ABB Group (including delivery and taxes) is five percent (5%)
or more than the pricing, including delivery and taxes, that ECOtality or its
Affiliates either has negotiated with, or can reasonably demonstrate would be
available to ECOtality and its Affiliates from, a third party not affiliated
with the ABB Group for an offering materially and technically equivalent to the
ABB Product in question, ECOtality and/or its Affiliates shall have no
obligation to purchase any such ABB Product from the ABB Group, although
ECOtality and/or its Affiliates may purchase any such Product, if they so
desire.
c In
NAM, the ABB Group will have the unrestricted right, unless expressly stated to
the contrary in this NAM Agreement, to sell to NAM Customers all ABB Components,
ABB Assemblies and ABB Charging Units which do not incorporate any BLINK Network
Products or any of ECOtality’s Proprietary Technology. This right of
the ABB Group, however, does not extend to ABB Systems (whether or not they
incorporate any BLINK Network Products or any of ECOtality’s Proprietary
Technology).
ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 4
of 9
d. In
NAM, so long as there is no uncorrected material default by ECOtality of this
NAM Agreement (which is expressly understood, to include, but is not
limited to, any violation of Section 3(b) (SPECIFIC TERMS AND CONDITIONS OF THE
SUPPLIER RELATIONSHIP IN THE NORTH AMERICAN MARKET) above), the ABB Group will
not design, produce, market, or sell any ABB System which competes with the
network system capabilities of any BLINK Network Products.
e. In
NAM, ECOtality and its Affiliates will have the exclusive right to sell BLINK
Network Products for the Specific Applications, at any charging
level. However, BLINK Network Products that use two (2) or more ABB
Products will be co-branded with the ABB Group in accordance with the decisions
of the STECO. Notwithstanding the above, ECOtality and its Affiliates
have the non-exclusive right to sell ABB Assemblies and ABB Charging Units for
other Battery Charging Solution applications besides the Specific Applications
in NAM.
f. In
NAM, ECOtality shall ensure that the ABB Group has a right of first refusal to
supply current and future ABB Products for all current and future Battery
Charging Solutions products and offerings developed by ECOtality and its
Affiliates.
g. The
commercial terms for any sale of ABB Products to ECOtality and its Affiliates
under this NAM Agreement shall be generally consistent with the relevant ABB
Group’s general terms and conditions for sale for the associated
Product. For example, the “ABB Inc. ‘General Terms and
Conditions of Sale’,” attached below as Exhibit B (GENERAL TERMS AND
CONDITIONS OF SALE), shall apply to ABB Products, to the extent those terms and
conditions are not inconsistent with specific provisions of this NAM
Agreement.
4. GENERAL
TERMS AND CONDITIONS OF THE SUPPLIER RELATIONSHIP
a. In
relation to NAM, no Affiliate of the ABB Group shall be required to accept any
order for any ABB Product if, in the reasonable opinion of this Affiliated of
the ABB Group, it would be unable to meet of ECOtality
Requirements. If the ABB Group is unable to meet the ECOtality
Requirements for any of the ABB Products, ECOtality shall notify the STECO of
such inability in writing. Thereafter, ECOtality and its Affiliates
shall be under no obligation to purchase the non-conforming ABB Product under
this NAM Agreement; provided that in the event that, thereafter, ABB notifies
the STECO, in writing, of the ABB Group’s ability to fulfill the associated
ECOtality Requirements for the Product, then unless ECOtality reasonably
determines that the ABB Product does not fulfill the associated ECOtality
Requirements, ECOtality shall again have the obligation to purchase the Product,
subject in any event, however, to any alternative supply arrangements that
ECOtality may have entered into with respect to the non-conforming ABB Product
until the end of the term of such alternative supply
arrangements.
ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 5
of 9
b. To
the extent applicable to ABB Products, the ABB Group shall have the first right
of refusal to participate in ECOtality's MicroClimate initiatives in
NAM.
c. The
STECO’s decisions will govern the joint sales and marketing collaboration of the
Parties in NAM, to the extent legally permissible.
d. The
STECO will provide guidance to the Parties and their Affiliates on the Supplier
Relationship in NAM.
e. If
the STECO unanimously determines that the NAM Agreement should be expanded,
based upon the STECO’s expectations for Battery Charging Solutions and ABB
Products in NAM, this NAM Agreement shall be promptly amended by the
Parties.
f. Disputes
between the Parties shall be referred to the STECO for resolution, by the
STECO’s unanimous decision.
g. The
Parties shall keep the STECO currently informed about their activities under
this NAM Agreement.
5. OTHER
CONCERNS
a. Neither
Party is aware of any customer or business partner relationships which would
prohibit it from entering into this NAM Agreement or prevent it from executing
any Agreement.
b. To
the extent that legal requirements, including, but not limited to, laws with
respect to restraints on competition, prevent the Parties from incorporating the
provisions of the Framework Agreement into this NAM Agreement or acting in
accordance with the provisions of the Framework Agreement or the advice of the
STECO, the Parties shall fully comply with any such legal requirements and alter
this NAM Agreement accordingly.
c. To
the extent that this NAM Agreement violates any existing or future legal
requirement, the nonperformance by the affected Party or its Affiliates is fully
excused and this NAM Agreement shall be promptly amended by the Parties to
address the violation. If no mutually satisfactory, commercially
reasonable amendment can be made to this NAM Agreement, the Supplier
Relationship in NAM shall be immediately terminated.
d. The
failure to exercise a right or delay in exercising a right or remedy provided in
this NAM Agreement or by law does not constitute a waiver of the right or remedy
or a waiver of other rights or remedies. A waiver of a breach of any
of the terms of this NAM Agreement or of a default under this NAM Agreement does
not constitute a waiver of any other breach or default and shall not affect the
other terms of this NAM Agreement. Similarly, a waiver of a breach of
any of the terms of this NAM Agreement or of a default under this NAM Agreement
will not prevent a Party from subsequently requiring compliance with the waived
obligation.
ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 6
of 9
e. The
Parties acknowledge that this NAM Agreement does not grant any intellectual
property rights to their respective intellectual property to the other
Party.
f. The
relationship of the Parties is that of independent parties dealing at arm’s
length and nothing in this Agreement shall be construed so as to constitute any
kind of partnership, joint venture, or agency. Accordingly, neither
Party nor their Affiliates is authorized to represent the other, except as
expressly stated in this NAM Agreement.
6. CONFIDENTIALITY
The terms
of this NAM Agreement are considered confidential and proprietary by the Parties
and shall not be disclosed by any Party to a third party, excluding its
affiliates, agents, advisors, lenders, and insurers, without the other Party’s
prior written authorization, except as may be required by applicable law
(including, without limitation, securities laws with respect to the disclosure
of material information).
7. CHOICE
OF LAW
This NAM
Agreement shall be governed by and subject to the laws of the State of New
York.
8. TERM
This NAM
Agreement shall terminate five (5) years from the Effective Date, but may be
terminated earlier by either Party for “cause,” or upon the termination of the
Framework Agreement.
9. NOTICES
a. Notices
under this NAM Agreement shall be sent to:
i) For
ABB:
ABB
Inc.
00000
Xxxxxxx Xxxxxxx, Xxxxx #000
Xxxx, XX
00000
Attention:
Chief Executive Officer/General Counsel
ii) For
ECOtality:
0
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx
Xxxxxxxxx, XX 00000
Attention:
CEO
ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 7
of 9
b. A
copy of all notices sent under this NAM Agreement must also be copied to the
STECO.
10. THE
ENTIRE AGREEMENT
This NAM
Agreement
i) Contains
the entire agreement and understanding among the Parties as to the subject
matter of this NAM Agreement;
ii) Supersedes
in their entirety any and all previous communications among the Parties; and
iii) Shall
only be modified in writing by the Parties.
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[SIGNATURES APPEAR ON THE
FOLLOWING
PAGE]
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ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 8
of 9
IN
WITNESS WHEREOF, the Parties have entered into this NAM Agreement as of the date
first written above.
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ABB
Inc.
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By:
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Name:
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Title:
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ABB
GROUP BUSINESS AREA ACKNOWLEDGEMENT
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This
NAM Agreement has been reviewed by the DM and the LP Business Areas of the
ABB Group and its terms unconditionally
accepted.
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By:
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Name:
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Title:
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(Acting
for DM)
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By:
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Name:
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Title:
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(Acting
for LP)
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ABB/ECOtality
“Collaboration and Strategic Supplier Relationship Framework for “NAM”
Agreement
January
10, 2011 – EXECUTION
VERSION
Page 9
of 9
EXHIBIT A – THE FRAMEWORK
AGREEMENT
(TO BE
INSERTED)
EXHIBIT B – GENERAL TERMS
AND CONDITIONS OF SALE
- “Form
50-490” -
(TO BE
INSERTED)–
