EXCLUSIVE DISTRIBUTION AND MARKETING AGREEMENT
1
INDEX
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RECITALS
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3
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DEFINITIONS
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4
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AGREEMENT
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5
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1.
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Subject
of Distribution and Marketing Agreement
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5
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2.
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Required
Supplemental Agreements
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5
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3.
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Organization
of Distribution and Assignment of Rights and Duties
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6
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4.
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Transfer
of authority and Term of the Distribution and Marketing
Agreement
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7
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5.
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Independent
Entities
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8
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6.
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Expenses
and third parties
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8
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7.
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Minimum
sales requirements
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8
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8.
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Termination
of the Distribution and Marketing Agreement
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9
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9.
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Appearance
and marking of the Products
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9
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10.
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Standard
terms of sale
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10
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11.
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Purchasing
price, cost changes, and shipping conditions
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10
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12.
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Orders
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11
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13.
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Transfer
of Products
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11
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14.
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Payments
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11
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15.
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Tendering
technical information
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11
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16.
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Market
research
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12
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17.
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Confidentiality
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12
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18.
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Technical
Support
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12
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19.
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Warranties
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12
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20.
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Limitations
on Liability; Indemnity
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13
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21.
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Force
majeure
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13
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22.
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Bankruptcy
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14
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23.
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Amendments
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14
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24.
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Entire
Agreement
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14
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25.
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Parties’
legal remedies
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14
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26.
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Notices
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14
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27.
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Final
provisions
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15
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28.
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Banking
Information
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15
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Signature
Page
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16
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List
of Supplemental Agreement Exhibits:
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16
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2
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a.
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Whereas,
Innovative Wireless Technologies, Inc. (formerly known as “Bayrock
Ventures, Inc.”) a Delaware corporation (hereinafter referred to as the
“Principal”) holds a leading position in the access to, and sale of,
innovative products and
technologies;
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3
Distribution and Marketing
Agreement- means this Exclusive Distribution and Marketing Agreement
between the Principal and the Distributor.
Distributor- means MechTech,
LLC, A California limited liability company.
Effective Date- means the
commencement date of the Distribution and Marketing Agreement, August 6,
2010
Initial Term- means the
initial seven year term of this Distribution and Marketing
Agreement.
IP- means intellectual
property held by the Principal.
Manufacturer- means any
manufacturer contracted by the Principal to manufacture a Product or some part
of a Product.
Market- means all locations
where business may be conducted, worldwide.
Market Rights- means rights of
sales, marketing, licensing and distribution.
Material Breach- means a
failure, intentional or otherwise, to comply with the terms, conditions, and
requirements of this Distribution and Marketing Agreement and such failure would
have a material adverse effect on the business, assets, liabilities, financial
condition or operations of the non-breaching Party. The Distribution and
Marketing Agreement contains an implied covenant of good faith and fair dealing,
the failure of which, intentional or otherwise, shall constitute an actionable
Material Breach.
Net Operating Income- means
operating income after operating expenses are deducted, but before income taxes
and interest are deducted.
Parties- means the Principal
and the Distributor together.
Principal- means Innovative
Wireless Technologies, Inc. (formerly known as “Bayrock Ventures, Inc.”), a
Delaware corporation.
Products- means all of the
Principal’s products and technologies, as well as the associated
IP.
Term- means the Initial Term
and any subsequent term of this Distribution and Marketing
Agreement.
4
This
Exclusive Distribution and Marketing Agreement (the “Distribution and Marketing
Agreement”) is made and entered into as of August 6, 2010 (the “Effective
Date”), by and between MechTech, LLC, A California
limited liability company (hereinafter referred to as the “Distributor”) and
Innovative Wireless
Technologies, Inc. (formerly known as “Bayrock Ventures, Inc.”) a
Delaware corporation (hereinafter referred to as the “Principal” and together
with the Distributor, the “Parties”).
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1.1.
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The
Principal grants the exclusive worldwide Market Rights for the Products to
the Distributor, according to the terms and conditions of this
Distribution and Marketing
Agreement.
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1.2.
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No
other party shall have an agreement with the Principal to buy, sell,
license, or distribute the Products, except with the written consent of
the Distributor.
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1.3.
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The
Products are listed in the supplemental Product Listing, Pricing and
Minimum Sales Requirement Agreement. Such agreement shall be amended to
include any other products the Principal will develop or acquire in the
future, which shall then be included as Products. The terms of this
Distribution and Marketing Agreement will apply equally to all
Products.
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1.4.
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Licensing
terms for all Products are identified in the Licensing
Agreement.
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1.5.
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The
Principal shall keep the Distributor informed about new Products in
development, and the Distributor shall share its knowledge of the Market
with the Principal to help make the Products as attractive as possible to
third parties.
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1.6.
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The
Distribution and Marketing Agreement includes all ancillary agreements
(the Supplemental Agreements), as set forth in Section 2
below.
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2.1.
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The
Principal will obtain for each Product to be sold pursuant to this
Distribution and Marketing Agreement all necessary government licensing
and customs approvals, at Principal’s cost. The Principal represents that
the Products do not infringe on the intellectual property of third
parties, and all necessary taxes and governmental fees shall have been
paid by the Principal on such Products before the Distributor shall
commence selling the Products. Additionally, prior to commencement of the
sales period, the following required Supplemental Agreements must be
reached:
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5
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2.2.
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Licensing
Agreement, substantially in the form attached hereto as Exhibit A (the
“Licensing Agreement”);
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2.3.
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Product
Listing, Pricing and Minimum Sales Requirement Agreement, substantially in
the form attached hereto as Exhibit B (the “Product Listing, Pricing and
Minimum Sales Requirement
Agreement”);
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2.4.
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Product
Design and Supporting Documents Specifications Agreement, substantially in
the form attached hereto as Exhibit C (the “Product Design and Supporting
Documents Specifications
Agreement”);
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2.5.
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Technical
Support and Warranty Agreement, substantially in the form attached hereto
as Exhibit D (the “Technical Support and Warranty
Agreement”);
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2.6.
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Non-Disclosure
Agreement, substantially in the form attached hereto as Exhibit E (the
“Non-Disclosure Agreement”); and
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2.7.
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Shipping
Agreement, substantially in the form attached hereto as Exhibit F (the
“Shipping Agreement”).
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3.1.
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The
Distributor shall have the sole discretion to organize distribution of the
Products within the Market as well as appoint necessary distributors,
sub-distributors, dealers, wholesalers, etc., and assign rights and duties
to such Parties according to the terms of this Distribution and Marketing
Agreement.
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3.2.
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The
Distributor shall make reasonable efforts to keep the Principal informed
of any contract negotiations with third parties concerning exclusive
rights.
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3.3.
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This
Distribution and Marketing Agreement sets forth certain terms for third
parties desiring to act as distributors, sub-distributors, dealers,
wholesalers, etc. Such terms include minimum sales requirements,
volume-pricing levels, etc. If a third party proposes to enter into a
distribution agreement or sales contract with the Distributor involving
terms that do not conform to such standards but are nevertheless
attractive, the Distributor will notify the Principal of the
offer. Together, the Distributor and Principal will agree to
accept or reject the third party’s offer. If such an offer is to be
accepted, the Principal and the Distributor shall make any necessary
amendments to this Distribution and Marketing Agreement to allow the
Distributor to enter into such an
agreement.
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3.4.
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The
Principal will receive a copy of each distribution agreements or sales
contracts signed between the Distributor and any third parties, once it
has been finalized.
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3.5.
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Any
third party desiring an exclusive right for a Product or range of products
may be required by the Distributor to pay an upfront fee in exchange for
that right. This upfront fee would be in addition to any amounts paid for
Products. If in the Distributor’s sole discretion such fees are necessary
and are paid, such fees shall be shared between the Distributor and the
Principal according to the following
percentages:
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6
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a)
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In
the first year, [*********************]1 to the Distributor,
and [*************] to the Principal until Distributor has received an
aggregate of [*********************] with respect to such fees.
Thereafter, the fee split shall be: [*************] to the Distributor,
and [*****************] to the
Principal.
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b)
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In
the second year, [*************] to the Distributor, and [*************]
to the Principal until Distributor has received an aggregate of
[*************] with respect to such fees. Thereafter, the fee split shall
be: [*************] to the Distributor, and [*************] to the
Principal.
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c)
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In
the third year and every year thereafter, [*************] to the
Distributor, and [*************] to the
Principal.
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The
Principal agrees that the Distributor should share in such upfront fees, to help
cover marketing costs and to encourage the Distributor to aggressively pursue
such distribution agreements or sales contracts. Since costs are currently
unknown and may be subject to change, the schedule and percentages set forth in
3.5a, 3.5b, 3.5c shall be reviewed on an annual basis and may be adjusted with
the written agreement of both Parties.
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4.1.
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This
Distribution and Marketing Agreement may not be transferred or assigned by
the Distributor without the prior written consent of the Principal;
provided, however, that the Distributor shall be permitted to assign this
Distribution and Marketing Agreement to any entity that the Distributor
directly or indirectly controls, or is under common control with the
Distributor without such consent.
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4.2.
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If
Xxxxx Xxxxxxx intends to, or he is aware that Xxxxxx Xxxxxxxxxx intends
to, either to sell more than fifty percent (50%) of his individual shares
of the Principal, or to withdraw from full-time, active involvement in the
Principal, he shall notify the Distributor within 30 days of such
decision. Xxxxx Xxxxxxx agrees and acknowledges that any such a
transfer or withdrawal by himself may not be consummated until not less
than 90 days after actual receipt of notice by the
Distributor.
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4.3.
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Any
transfer or assignment of the Distribution and Marketing Agreement will
not extend or alter the sales period or change the terms of the
Distribution and Marketing Agreement, without the prior written agreement
of the Parties.
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4.4.
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The
Distribution and Marketing Agreement will begin on the Effective Date and
will continue for a seven (7) year period (the “Initial
Term”). Provided that the Distributor complies with the terms
of this Distribution and Marketing Agreement, the Principal agrees that
the Distributor shall have the option to renew this Distribution and
Marketing Agreement for an additional seven-year period (the Initial Term
and any extension thereof are collectively referred to herein as the
“Term”).
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7
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4.5.
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In
the event of a Material Breach of this Distribution and Marketing
Agreement by either Party, the non-breaching Party may terminate this
Distribution and Marketing Agreement by giving the breaching Party written
notice; provided, however that such termination shall only be effective if
the breaching party fails to cure such breach within ninety (90) days of
receiving notice of the existence
thereof.
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5.1.
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The
Distributor shall accurately represent itself as an independent business
entity with all the rights and duties established by this Distribution and
Marketing Agreement. The Distributor is not an employee of the Principal.
The Distributor shall not falsely claim to represent the Principal or any
manufacturer of the Products (a
“Manufacturer”).
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5.2.
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No
Manufacturer or the Principal is liable for any independent decisions or
statements made by the Distributor. The Manufacturers and the Principal
shall not be required to sign contracts with third parties or fulfill any
obligations with third parties beyond what is set forth in this
Distribution and Marketing
Agreement.
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6.1.
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All
expenses, liabilities, and costs of the Distributor associated with its
obligations under the Distribution and Marketing Agreement and its
activities are imposed on the Distributor in full and shall be the
Distributor’s sole responsibility.
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6.2.
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All
expenses, liabilities, and costs of the Principal associated with its
obligations under the Distribution and Marketing Agreement and its
activities are imposed on the Principal in full and shall be the
Principal’s sole responsibility.
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6.3.
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Unless
stipulated otherwise in the Distribution and Marketing Agreement, there is
no liability for either Party with respect to unforeseen obligations, and
the Principal shall not grant any guarantee to any of the third parties
involved by the Distributor to fulfill obligations of the Distribution and
Marketing Agreement except as herein
provided.
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6.4.
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The
Principal shall have the sole discretion to obtain required transport for
means of transportation of the Products as well as insurance and legal
services for required legal needs and insurance coverage. The Distributor
shall not perform or contract export and import operations. The Principal
shall contract technical support companies for means of providing required
technical support.
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7.1.
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The
Distributor shall endeavor to maximize sales of Products. Recognizing that
it will take time to build demand in the market and form effective sales
channels, the Principal shall not impose any specific performance
benchmarks for the Distributor during the Term of this Distribution and
Marketing Agreement.
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8
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7.2.
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During
the Term of this Distribution and Marketing Agreement, third parties such
as distributors, dealers, wholesalers, etc. desiring to buy the Products
at volume-pricing levels shall sign sales contracts with the Distributor.
(See Section 11.3 for more
details.)
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7.3.
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If
a third party engaged in a sales contract fails to make the required
minimum sales specified by its contract, the Distributor shall reserve the
right to revoke any sales or distribution rights granted and collect any
penalties due under the terms of that contract. Penalty amounts less than
or equal to the costs of collection shall be retained by the Distributor.
Penalty amounts exceeding the costs of collection shall be shared between
the Principal and the Distributor, with [******************]2 paid to the
Principal and [******************] paid to the
Distributor.
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7.4.
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Revocation
of any third parties’ sales contracts will not affect the Distributor’s
Market Rights, provided the Distributor has not breached the terms of this
Distribution and Marketing
Agreement.
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7.5.
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If
the contract rights of any third party are to be revoked because of a
failure to meet minimum sales requirements, written notice shall be given
by the Distributor to the Principal fifteen (15) days in
advance.
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8.1.
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Termination
of this Distribution and Marketing Agreement for any reason shall not
negate payment obligations of the Parties as set forth herein. The Parties
will pay, within ninety (90) days after the effective date of termination,
all amounts owing to each other prior to the termination
date.
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8.2.
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Upon
termination of this Distribution and Marketing Agreement, the Distributor
shall not sign any new sales contracts or represent themselves as current
Distributors of the Products.
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9.1.
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The
Principal is responsible for the production of the Products as well as
costs associated with the Products’ designs, packaging, language
interfaces, and manuals in accordance with industry standards in the
Market. The Distributor and the Principal shall enter into the Product
Design and Supporting Documents Specifications Agreement, establishing the
required design and packaging characteristics. Such agreement shall be
amended to include any other products the Principal will develop or
acquire in the future, which shall then be included as
Products.
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2
Confidential Treatment has been requested with respect to the information
contained in the [***] marking. Such portions have been omitted from
the filing and have been filed separately with the Securities and Exchange
Commisison.
9
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10.
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Standard
terms of sale
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10.1.
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The
terms of sale of the Products are regulated by this Distribution and
Marketing Agreement and the Supplemental Agreements, including, but not
limited to, the Product Listing, Pricing and Minimum Sales Requirement
Agreement and the Shipping
Agreement.
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11.
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Purchasing
price, cost changes, and shipping
conditions
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11.1.
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The
Distributor shall use commercially reasonable efforts to acquire the most
favorable sales terms from third parties including with respect to Product
price, sales quantity, terms of payment and terms of
shipment.
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11.2.
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The
price paid for each Product with respect to the volume of an order is
determined by both Parties in the Product Listing, Pricing and Minimum
Sales Requirement Agreement.
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11.3.
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Third
parties engaged in distribution or sales shall be obligated to buy
Products at the volume-pricing levels set forth in the Product Listing,
Pricing and Minimum Sales Requirement
Agreement.
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11.4.
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The
Parties’ costs (including but not limited to marketing, shipping,
insurance, legal, production and service costs) are unknown at this time,
and may vary during the Term. The Parties desire to establish pricing
levels and percentages which are reasonable and profitable for both the
Principal and Distributor. Specifically, the financial objective is to
split of the Net Operating Income from Product sales in such a way that
[**********]3 goes to the
Distributor and [**********] goes to the Principal. With this aim in mind,
the Parties agree:
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a)
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For
the purpose of starting sales of the Products, the Parties will set
initial Product pricing levels for third parties in the Product Listing,
Pricing and Minimum Sales Requirement Agreement. Amendments to Product
pricing levels shall apply to all future contracts with third parties, but
will not change the Product pricing in any current contract with a third
party unless the contract provides for such a
change.
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b)
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Because
many costs are unknown at this time, the Parties agree to review the
pricing levels established in 11.4a and the percentage rate established in
11.4c and the relevant costs on a quarterly basis for the first year and
at least a semiannual basis in the second year. For the remainder of the
Term, a review shall occur on at least an annual basis. Any adjustments to
the pricing levels or the percentage rate will be set forth in amendments
to the Product Listing, Pricing and Minimum Sales Requirement
Agreement.
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c)
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Until
a review of costs is completed, the price paid by the Distributor to the
Principal for each Product shall be [**********] of the Product price paid
to and received by the Distributor from third
parties.
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3
Confidential Treatment has been requested with respect to the information
contained in the [***] marking. Such portions have been omitted from
the filing and have been filed separately with the Securities and Exchange
Commisison.
10
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d)
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The
percentage rate established in 11.4c may be adjusted only if both Parties
agree. Any such adjustment shall reflect the principle in 11.4 and be
based on a review of costs, and Parties shall agree regarding what costs
should be included or excluded for the purposes of the
adjustment.
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11.5.
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Time
conditions of shipping shall be determined by both Parties and shall be
set forth in the Shipping Agreement for each Product and according to
order specification.
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12.
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12.1.
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All
orders will be forwarded to the Principal in written form. Every such
order should have information sufficient to determine the type of the
Product. The Principal shall confirm an order in written form within five
(5) business days from date of receipt of order. The Distributor may
cancel the order within forty-eight (48) hours after receiving notice of
the delivery date if the date is not reasonably acceptable to the
Distributor. Time expectations for shipping will be established in the
Shipping Agreement.
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13.1.
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The
Products shall be transferred to the Distributor by the Principal at a
mutually agreed-upon location. Such delivery terms shall be set forth the
Shipping Agreement.
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13.2.
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Title
and risk of loss will transfer when delivery is made at the agreed-upon
location.
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13.3.
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When
warranty services (as described in Section 20) are being applied, the cost
of transportation shall be paid pursuant to the terms set forth in the
Technical Support and Warranty
Agreement.
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14.
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14.1.
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Payments
for the Products shall be made according to the terms set forth in the
Product Pricing Agreement and the Shipping
Agreement.
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15.1.
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The
Principal shall provide the Distributor with any documents concerning the
Products as well as any documents necessary for sales within the Market
requested by the Distributor, without cost to the
Distributor.
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15.2.
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The
Principal shall, without prior request from the Distributor, tender any
new technical information such as performance charts and new functions of
all products according to Product Specification to the
Distributor.
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15.3.
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The
Principal shall inform the Distributor no less than ninety (90) calendar
days in advance of any planned changes in any performance of the Products.
Such changes may apply to future sales of the Products, but will not apply
to any current sales or distribution contract for the Products unless the
contract provides for such a change. Changes that may materially affect
current contracts with third parties must be agreed upon by both the
Principal and the Distributor prior to implementation in
shipments.
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11
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15.4.
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All
changes in performance or function of the Products must conform to
previous standards so as to avoid breaching contracts with third parties.
In the event of nonconforming changes to Products that have existing
contractual agreements with third parties, Principal must request approval
from the Distributor who will request approval from the third parties
before implementing any changes that could breach any
contract.
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16.
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16.1.
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The
Distributor agrees to share market research information with the Principal
about the market conditions and actions taken by possible competitors. If
necessary, the Distributor shall provide the Principal with general
brochures and or photographs of competing
products.
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16.2.
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With
respect to the information set forth in Section 17.1 above, the
Distributor shall report to the Principal every quarter. In
special cases where intervention may be required, the Distributor shall
promptly provide additional information to the Principal at the
Principal’s expense.
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17.
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17.1.
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Parties
shall enter into the Non-Disclosure Agreement which will contain
definitions of the confidential information, its value and the
responsibility of the Parties for
non-disclosure.
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18.1.
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The
Principal shall provide required technical expertise within the Market by
creating and maintaining a Service Center (as defined in
the Technical Support and Warranty Agreement) and will be
responsible for training and consulting Service Center employees (as well
as distance training). The details of this arrangement shall be
set forth in the Technical Support and Warranty Agreement between the
Distributor and the Principal.
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19.
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19.1.
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The
Products shall conform to technical conditions, functionality, technical
requirements and be in accordance with all agreed-upon standards. The
Principal shall provide a warranty for each Product or range of Products
as set forth in the Technical Support and Warranty
Agreement.
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19.2.
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In
any case, the Distributor will not be liable for costs involved in
fulfilling warranty services, provided that the Distributor has not
promised third parties more than what the Principal has promised
hereunder. Furthermore, any obligations of warranty that the Distributor
may have under the law, whether anticipated or unanticipated, shall be
paid for by the Principal.
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12
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19.3.
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In
the event of defective Product, customers must seek remedy through the
Principal’s Service Center. If the Service Center determines the Product
to be defective, it will repair or replace it at no charge during the
warranty period. If the Product warranty has expired, the customer will
need to cover the cost of Product repair or
replacement.
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19.4.
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With
respect to Products forwarded to the Distributor by the Principal which do
not meet specifications, the Distributor shall have the following
options:
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·
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The
Principal can immediately replace the Products, which do not meet the
complete Product requirements with Products that do meet such
requirements; or
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·
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The
Distributor may choose to accept the delivered
products.
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19.5.
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Products
are considered accepted if the Distributor does not inform the Principal
of its refusal to accept such Products within thirty (30) calendar days
from receipt of the defective Products. Failure to inform the Principal of
refusal to accept the Products does not negate the warranty
period.
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20.1.
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The
Distributor shall not forward any warranty to third parties other than the
Principal’s warranty stipulated by the Distribution and Marketing
Agreement. The Principal shall not be liable for any warranty obligations
set by the Distributor which exceed or differ from the Principal’s
warranty. After the expiration of the warranty period, technical support
will be available to customers as a fee
service.
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20.2.
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In
the event that the Distribution and Marketing Agreement is terminated, the
Distributor will not be responsible for further support for the
Product(s).
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20.3.
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Each
Party shall provide a certificate of insurance for product liability,
insured accidents, protection of incorporeal rights within the Market, and
related coverage with the Manufacturer, Principal, and Distributor as
named insured on the policy within the
Market.
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20.4.
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The
Principal shall indemnify the Distributor in the event the Distributor is
sued for patent infringement, product liability, warranty, negligence or
any other reason related to the
Products.
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21.
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21.1.
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Neither
the Principal nor the Distributor and shall be liable for delay of
delivery of the Products or any of its components in the order due to
force majeure, including natural disasters, fire, damage, military
occupation, energy crisis, legal restriction, war, civil unrest, national
prohibition, and other events which cannot be foreseen by the
Parties.
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13
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22.
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22.1.
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In
addition to the right of the Principal to terminate this Distribution
Agreement as set forth above, either Party have the right to terminate
this Distribution Agreement by written notification to such Party in cases
of insolvency, liquidation or bankruptcy of the other
Party.
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23.
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23.1.
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Alterations
or amendments to the Distribution and Marketing Agreement will be
effective only if all named Parties agree and they are in written
form.
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24.
|
|
24.1.
|
This
Distribution and Marketing Agreement, combined with the Supplemental
Agreements, Appendices and any Exhibits referenced herein, constitutes the
entire agreement between the Parties in connection with the subject matter
of the Distribution and Marketing Agreement, and it incorporates, replaces
and supersedes all prior agreements, promises, proposals, representations,
understandings and negotiations, written or
not.
|
|
25.1.
|
The
Principal and the Distributor shall agree about the measures which should
be taken in the Market against imitation of the Products or against bona
fide competition.
|
|
25.2.
|
The
Principal reserves the right, in its sole and absolute discretion, to make
decisions about pursuing any claims and protecting its right against any
third party that may infringe on its rights, and the responsibility and
costs thereof shall be the Principal’s. The Distributor retains its rights
to take measures to protect its interests at its own
cost.
|
|
25.3.
|
Any
dispute or claim hereunder between the named Parties shall be resolved by
binding arbitration before the American Arbitration Association in San
Diego, California under the laws of the State of California. This shall be
the exclusive remedy between the Parties, and both parties hereby give up
any rights to trial by jury, court, appeal, or any other judicial
mechanism for resolving disputes.
|
|
26.
|
|
26.1.
|
All
notices under this Distribution and Marketing Agreement should be
delivered by email or sent by fax to the following
addresses:
|
Distributor:
MechTech,
LLC
Address:
P.O. Box 7103, Rancho Santa Fe, CA 92067
Email:
xxxxxxxx@xxxxx.xxx
Fax:
(000) 000-0000
14
Principal:
Address:
000 X. Xxxx Xx Xxxxx Xxxx, Xxxxxxxxx, XX 00000
Email:
xxxxxxxx@xxxx.xx
Fax:
|
26.2.
|
The
Parties shall exchange corporate addresses and bank information (bank
name, address, account number and wiring information) as requested in
Section 29 below. If addresses and or banking details are altered, Parties
shall officially inform each other in a timely
manner.
|
|
27.
|
Final
provisions
|
|
27.1.
|
Each
Party shall execute two identical copies of this Distribution and
Marketing Agreement in English (one for each
Party).
|
|
27.2.
|
Each
party may make copies and translations of the Distribution and Marketing
Agreement for its needs but only the copies of the Distribution and
Marketing Agreement which have been signed by the Parties’ own hand are
considered authentic.
|
|
27.3.
|
This
Distribution Agreement may be executed in one or more counterparts, each
of which shall be deemed an original but all of which together will
constitute one and the same
instrument.
|
|
28.
|
Banking
Information
|
|
28.1.
|
The
Parties will provide up-to-date bank information (bank name, address,
account number and wiring information) necessary to do business with each
other.
|
[Signature
page to follow]
15
Signature
Page
IN
WITNESS WHEREOF, the parties have executed or caused this Distribution Agreement
to be executed as of the Effective Date set forth above.
|
Distributor:
|
Principal:
|
|
|
MechTech,
LLC
|
||
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
||
|
/s/ Xxxxx Xxxxxxx
|
||
|
Xxxxx
Xxxxxxx, individually
|
List
of Supplemental Agreement Exhibits:
|
Exhibit
A:
|
Licensing
Agreement
|
|
Exhibit
B:
|
Product
Listing, Pricing and Minimum Sales Requirement
Agreement
|
|
Exhibit
C:
|
Product
Design and Supporting Documents Specifications
Agreement
|
|
Exhibit
D:
|
Technical
Support and Warranty Agreement
|
|
Exhibit
E:
|
Non-Disclosure
Agreement
|
|
Exhibit
F:
|
Shipping
Agreement
|
16
EXHIBIT
A
LICENSING
AGREEMENT
This
Licensing Agreement is made and entered into as of August 6, 2010 (the
“Effective Date”), by and between MechTech, LLC, A California
limited liability company and Innovative Wireless Technologies,
Inc. (formerly known as “Bayrock Ventures, Inc.”) a Delaware corporation
(together with the MechTech, hereinafter referred to as the
“Parties”).
The
purpose of this document is to supplement the Exclusive Distribution and
Marketing Agreement between MechTech, LLC and Innovative Wireless Technologies,
Inc., in which exclusive Market Rights for the Products were granted to
MechTech, LLC.
The
Parties agree to add licensing terms for third parties to this agreement over
time and as needed. Not as limitation but for example, the Parties will agree on
end-user licensing terms, OEM licensing terms, developer licensing terms,
etc.
MechTech,
LLC, shall not give any right to third parties that exceeds the licensing terms
set forth in this Licensing Agreement.
In Witness
Whereof, the parties hereto have executed this Licensing Agreement as
of the date set forth in the first paragraph hereof.
|
MechTech,
LLC
|
||
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
17
EXHIBIT
B
PRODUCT
LISTING, PRICING AND MINIMUM SALES REQUIREMENT AGREEMENT
This
Product Listing, Pricing and Minimum Sales Requirement Agreement is made and
entered into as of August 6, 2010 (the “Effective Date”), by and between MechTech, LLC, A California
limited liability company and Innovative Wireless Technologies,
Inc. (formerly known as “Bayrock Ventures, Inc.”) a Delaware corporation
(together with the MechTech, hereinafter referred to as the
“Parties”).
The
purpose of this document is to supplement the Exclusive Distribution and
Marketing Agreement between MechTech, LLC and Innovative Wireless Technologies,
Inc., in which exclusive Market Rights for the Products were granted to
MechTech, LLC.
This
Product Listing, Pricing and Minimum Sales Requirement Agreement shall be
regularly updated to include the Principal's full range of
Products.
Any
changes to the pricing of Products or to minimum sales requirements for third
parties under this agreement shall require the written consent of both Parties.
The parties agree to review Product pricing levels and also fix minimum
sales requirements for third parties seeking exclusive rights after a
period of research.
In Witness
Whereof, the parties hereto have executed this Product Listing, Pricing
and Minimum Sales Requirement Agreement as of the date set forth in the first
paragraph hereof.
|
MechTech,
LLC
|
Innovative
Wireless Technologies, Inc.
|
|
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
18
Product Listing, Pricing and
Minimum Sales Requirement Agreement Exhibit B.A1
IP
Listing
Below is
a list of current IP. Whenever the Principal acquires further IP, it will be
added to this agreement.
|
PATENTS
|
Application No.
|
Filing Date
|
||
|
[**********]4
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
[**********]
|
[**********]
|
[**********]
|
||
|
TRADEMARKS
|
||||
|
“IWT”
|
85/006,796
|
April
5, 2010
|
||
|
“IWT”
(stylized and/or with design)
|
85/006,806
|
April
5, 2010
|
||
|
“INNOVATIVE
WIRELESS TECHNOLOGIES”
|
|
85/006,807
|
|
April
5, 2010
|
4
Confidential Treatment has been requested with respect to the information
contained in the [***] marking. Such portions have been omitted from
the filing and have been filed separately with the Securities and Exchange
Commisison.
19
Product Listing, Pricing and
Minimum Sales Requirement Agreement Exhibit B.A2
Current
Product Listing
Below is
a list of Products currently available for sale. Whenever the Principal finishes
development of another Product, it will be added to this agreement.
|
PRODUCTS
|
|
Smart Tactical Light Products
ST
WML
Wireless
Retrofit End-Cap for Incandescent and Xenon Tactical Lights
Smart Battery
Products
Smart
Battery Wireless Remote Retrofit System (SB WRRS) for Night Vision
Scopes
|
20
Product Listing, Pricing and
Minimum Sales Requirement Agreement Exhibit B.A3
Product
Pricing
Pricing
below is for reference and the Distributor will not sell Products for less than
[***]5 of the retail
pricing or [***] of the Dealer pricing below without notification to Principal.
The initial cost of the product to the Distributor will be [***] of the sale
price and may be subject to change during the course of the Term according to
the terms of Section 11.4 of the Distribution and Marketing
Agreement.
|
Product Name
|
Retail
|
Dealer
|
||
|
ST
WML
(without
Throw Lever Mount or IR head)
|
[***]
|
[***]
|
||
|
ST
WML Throw Lever
(without
IR head)
|
[***]
|
[***]
|
||
|
ST
WML Throw Lever with IR
|
[***]
|
[***]
|
||
|
ST
WML Propack
|
[***]
|
[***]
|
||
|
Wireless
Retrofit End Cap (Lights)
|
[***]
|
[***]
|
||
|
SB
WRRS
|
|
[***]
|
|
[***]
|
5
Confidential Treatment has been requested with respect to the information
contained in the [***] marking. Such portions have been omitted from
the filing and have been filed separately with the Securities and Exchange
Commisison.
21
EXHIBIT
C
PRODUCT
DESIGN AND SUPPORTING DOCUMENTS SPECIFICATIONS AGREEMENT
This
Product Design and Supporting Documents Specifications Agreement is made and
entered into as of August 6, 2010 (the “Effective Date”), by and between MechTech, LLC, A California
limited liability company and Innovative Wireless Technologies,
Inc. (formerly known as “Bayrock Ventures, Inc.”) a Delaware corporation
(together with the MechTech, hereinafter referred to as the
“Parties”).
The
purpose of this document is to supplement the Exclusive Distribution and
Marketing Agreement between MechTech, LLC and Innovative Wireless Technologies,
Inc., in which exclusive Market Rights for the Products were granted to
MechTech, LLC.
This Product Design and
Supporting Documents Specifications Agreement shall be updated regularly
to include documentation for all available Products.
In Witness
Whereof, the parties hereto have executed this Product Design and
Supporting Documents Specifications Agreement as of the
date set forth in the first paragraph hereof.
|
MechTech,
LLC
|
Innovative
Wireless Technologies, Inc.
|
|
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
22
Product Design And
Supporting Documents Specifications Agreement Exhibit C.A1
SMART TACTICAL WEAPON
MOUNTED LIGHT (ST WML)
The ST
WML gives Soldiers the capability to employ a white light that is small and
lightweight and can be weapon-mounted or hand-held. When
weapon-mounted, the ST WML provides Soldiers the capability to identify targets
accurately when using the weapon during periods of darkness or limited
visibility, even underwater.
The ST
WML works with the following weapons: M16A4 modular weapons, M4/M4A1, M249, and
M240B. It can also be mounted on a U.S. Army Standard Rail
(MIL-STD-1913) using an interface device.
The ST
WML currently has a fixed beam with 8 brightness levels to choose from that
allows illumination of a 20x30x8 foot darkened room or enclosure and has a
facial recognition range of at least 20 meters, 25 meters inside a darkened room
or enclosure. The system has the ability to accept different light heads which
we have manufactured including narrow or wide beam white light, IR, UV or
colored LED.
The ST
WML itself weighs 3 oz. With batteries, mounting mechanism and remote capability
it weighs less than 10 oz. (remote is wireless). The ST WML is compatible with
(does not interfere with) appropriate day/night optics, aiming lights and other
weapon accessories.
The ST
WML has dual activation controls, i.e. an on/off switch located on the device
housing and a wireless remote control switch. The system has both constant
on/off and momentary light capabilities which includes a remote momentary
capability. A full-off control is also provided on the device housing which will
prevent activation controls from functioning.
The
system operates on two replaceable CR123A batteries. The remote-control device
uses an internal CR2032 battery that lasts through 5,000 uses. Battery
performance with the light constantly on at maximum brightness is 3 hours. At
the lowest brightness setting, the battery will last for up to 200 hours. When
the system is remote controlled some battery performance is discharged even if
the light is off. In this mode the light will remain ready to activate for at
least 20 days. The operational temperature range for the ST WML is -40o F to
+185o
F.
The ST
WML includes a detachable lens cover/dust cover, protecting the lens from
particulate matter, scratches and the body from accidental damage.
The ST
WML has infrared (IR) capability and can be easily mounted and dismounted by the
individual Soldier without special tools.
The ST
WML should be capable of being used when Soldiers are wearing the Army issued
black leather glove with wool insert and is compatible with NBC operations and
with the full ensemble of Mission Oriented Protective Posture (MOPP) 4 gear when
worn by the Soldier in any NBC environment. The ST WML provides for one-handed,
ambidextrous operation.
The ST
WML has a blast-proof hermetic frame with anodized exterior (aerospace aluminum)
and is capable of being dropped from 5 feet, without impacting operational
capability. The ST WML is capable of being immersed in 100 feet (30 meters) of
water and will operate in 5-100% relative humidity without degradation of
capability.
23
Product Design And
Supporting Documents Specifications Agreement Exhibit C.A1
SMART TACTICAL WEAPON
MOUNTED LIGHT (ST WML)
Package
Contents
|
ST
WML Tactical light
ST
WML Remote Switch
ST
WML IR Head
Mounting
Sleeve
Dust
Cover
|
Picatinny
Rail Mount
Two
CR123 Batteries
Velcro
Remote Mounting Strips
Alcohol
Prep-pad
|
Tactical Light
Specifications
|
Levels
of Brightness:
|
8
levels
|
|
Lumen
Range (White Light):
|
3
lumens (lowest setting) to 120 lumens (highest setting)
|
|
Battery
life at lowest brightness setting:
|
200
hours
|
|
Battery
life at highest brightness setting:
|
3
hours
|
|
Battery
life when RF receiver is active and light is off:
|
20
days
|
|
Alternate
Light Heads
|
Quick-changeable
infrared light head included;
ultraviolet
and other light heads available on request
|
|
Waterproof:
|
Fully
functional 100 ft (30 meters) underwater
|
|
Remote
control range (above water):
|
20
ft between controller and light
|
|
Remote
control range (under water):
|
6
ft between controller and light
|
|
Operational
temperature range:
|
From
-40° F to +185° F
|
|
Construction
|
Blast-proof
hermetic frame with anodized exterior;
aerospace
aluminum
|
|
Device
weight (without batteries)
|
3
ounces
|
|
Battery
type:
|
CR123A
|
|
Number
of Batteries:
|
2
batteries
|
|
Operating
frequency:
|
2400
mhz
|
|
Battery
life:
|
Battery
lasts through 5,000 uses
|
|
Battery
type:
|
CR2032
|
|
Number
of Batteries:
|
1
battery
|
With the
tactical light off unscrew the LED Head. Insert CR123 batteries with the +
visible and facing up. Screw on the LED or IR head.
On/off and light
levels
To turn
on or off the tactical light press and release the end-cap button once. For
adjustment of the tactical light’s intensity (start from the off position) press
and hold down the end-cap button until the tactical light beam adjusts to the
desired level then release. After changing the intensity of the light
you can still use the remote switch to turn on or off the tactical light. To
reset the light’s intensity level press the end-cap button twice quickly and
release.
With the
tactical light on and the remote nearby, press and hold the end-cap button until
it flashes once. The uniquely paired remote should now be activated and
you can operate the light remotely with it up to twenty feet. To
deactivate the remote you perform the same action starting with the tactical
light on, holding until it flashes two times.
Prep the
installation location with alcohol. Affix the soft Velcro strip to the body of
the weapon in the location of your choice. Attach the hook side of
the Velcro to the remote switch. Fix the remote switch to the Velcro that you
have place on the weapon.
Deactivate
the remote control and turn off the tactical light. Unscrew the white LED head
and replace it with the IR head. Once the IR head is secured on the tactical
light you can use the device by end-cap button or (after activation) the remote
switch.
To
activate the “full off control” (first turn on the tactical light) press and the
end-cap button for 8-10 seconds until the flashlight flashes once.
To return
the light to normal function press and hold the end-cap button and hold for 8-10
seconds until it flashes once.
24
WARNINGS
- Do not use the full off control while replacing batteries. Do not remove the
end-cap while the remote is activated.
25
Wireless
Retrofit End-Cap
The Wireless Retrofit End-Cap will
add Smart Tactical Light functionality to your current tactical light. The
Wireless Retrofit End-Cap works with virtually all Xenon/Incandescent Tactical
Lights, as well as many LED tactical lights. Simply replace the
end-cap of your tactical light with our Wireless Retrofit End-Cap to make the
upgrade.
The
Wireless Retrofit End-Cap adds these features to your tactical
light:
· Wireless
remote control of the tactical light, as well as standard, manual
control
· Adjustable
Brightness Controls with 8 levels of brightness to choose
from
Wireless Remote
Control
The
Wireless Retrofit End-Cap enables wireless remote
activation/deactivation of your tactical light by means of a small
remote-control device which can be conveniently attached to any location on your
weapon. The remote-control
device can be positioned at a distance of up to 6 feet (2 meters) away; and is
uniquely paired with the Wireless Retrofit End-Cap, so that shared use of
components from different packages is impossible. All of our electronics
have been rigorously field-tested, and our wireless remote-control system is so
reliable, it will even function under water. Also the Wireless Retrofit End-Cap
is designed to be very energy-efficient in all modes of operation, and allows
remote control features to be switched on or off as desired, for additional
energy savings.
Our
Wireless Retrofit End-Cap allows you to upgrade existing tactical lights you may
own, saving you the cost of a new tactical light.
At the
touch of a button on the end-cap, you can adjust the brightness of your
tactical light to save power or reduce your
visibility.
In order
to operate, the Wireless Retrofit End-Cap uses power from the batteries inside
your tactical light. Therefore, when the Wireless Retrofit End-Cap is in
remote-control mode, some power will be discharged even if the light is off. In
this mode, your light will remain ready to activate for approximately 20
days.
The
remote-control device uses a lithium battery- CR1632. Battery lasts through 1500
uses.
The
intense, bright white light from a good quality tactical light can blinding to
the direct beholder, and can be very useful in tactical situations. Add a disorienting strobing effect to this
powerful white light and it becomes an even more effective tactical
device.
Or, if
you are using an infrared tactical light, by adding the strobe feature, you gain the advantage of having
an infrared strobe
light. With night vision goggles you can quickly and discreetly identify team
members and their locations using an infrared strobe, and the strobe is
also effective as an emergency
locator beacon.
26
Product Design And
Supporting Documents Specifications Agreement Exhibit C.A2
Smart
Battery Wireless Remote Retrofit System (SB WRRS)
The SB WRRS is a first-of-its-kind
innovation, enabling wireless remote activation/deactivation of any night vision
scope that uses AA batteries.
Unique
features and advantages of the SB WRRS:
|
·
|
The
only battery available that offers remote control
functionality
|
|
·
|
Transform
any night vision scope that uses AA batteries into a remote-control
enabled device
|
|
·
|
Intelligent,
energy-saving feature allows automatic deactivation after 10
mins
|
|
·
|
Fail-safe
design protects your ability to manually activate/deactivate the
device
|
Modernize Your Favorite
Night Vision Scope
Frequent
manual activation/deactivation of a night vision scope can be complicated and
tedious when operating in the dark. The SB WRRS allows you to turn your night
vision scope on and off easily, without shifting your hands out of firing
position. Any available night
vision scope that uses AA batteries can be equipped with remote-control
features, thanks to the SB WRRS.
The
system consists of a SB WRRS battery unit and a small remote control unit. The small, remote control unit can be
mounted in any convenient location. The remote-control unit can be
positioned at a distance of up to 20 feet (7 meters) away; and is uniquely
paired with the Tactical Smart Battery, so shared use of components from
different packages is impossible. The remote control unit is powered by
CR2032 lithium battery. One battery lasts through 5000 uses.
The SB
WRRS has been rigorously field-tested, and is extremely dependable, but in case of remote-control failure,
the SB WRRS is designed to switch control back to manual mode, so you will still
be able to switch your device on or off as needed.
In remote
control mode, the SB WRRS battery unit will discharge some energy, whether or
not your night vision scope is active, so you will want to manually switch off
the power when you are finished using the scope, but if you forget to do this,
the SB WRRS will help you save power, by automatically switching off power to
the night vision scope after 10 minutes of inactivity. This feature will
help ensure maximum battery life for your night vision scope.
The SB
WRRS replaces one of the batteries inside your night vision scope. The other
battery must be replaced with a lithium battery
(ER14505M).
27
EXHIBIT
D
TECHNICAL
SUPPORT AND WARRANTY AGREEMENT
This
Technical Support and Warranty Agreement is made and entered into as of August
6, 2010 (the “Effective Date”), by and between MechTech, LLC, A California
limited liability company and Innovative Wireless Technologies,
Inc. (formerly known as “Bayrock Ventures, Inc.”) a Delaware corporation
(together with the MechTech, hereinafter referred to as the
“Parties”).
The
purpose of this document is to supplement the Exclusive Distribution and
Marketing Agreement between MechTech, LLC and Innovative Wireless Technologies,
Inc., in which exclusive Market Rights for the Products were granted to
MechTech, LLC.
The
Parties agree to add warranty terms to this agreement over time and as needed.
Not as limitation but for example, the Parties will agree on short-term
warranties, extended warranties, lifetime warranties, etc.
MechTech,
LLC, shall not grant any warranty to third parties that exceeds the warranty
terms set forth in this Technical Support and Warranty Agreement.
In Witness
Whereof, the parties hereto have executed this Technical Support and
Warranty Agreement as of the
date set forth in the first paragraph hereof.
|
MechTech,
LLC
|
Innovative
Wireless Technologies, Inc.
|
|
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
28
EXHIBIT
E
NON-DISCLOSURE
AGREEMENT
This
Mutual Non-Disclosure Agreement (the “NDA”)
is made and entered effective as of August 6, 2010, by and between MechTech LLC,
a California limited liability company, and INNOVATIVE WIRELESS TECHNOLOGY, a
Delaware corporation, to assure the protection and preservation of the
confidential and/or proprietary nature of information to be disclosed or made
available to each other in connection with the Distribution and Marketing
Agreement.
In reliance upon and in consideration
of the following undertakings, the parties agree as follows:
1. Subject
to the limitations set forth in paragraph 2, all information disclosed to the
other party, whether marked confidential or not, shall be deemed to be “Proprietary
Information.” In
particular, Proprietary Information shall be deemed to include any technology,
content, trade secret, information, process, technique, training manual,
workbook, algorithm, computer program (source and object code), design, drawing,
formula, business plan or test data relating to any research project, work in
process, future development, engineering, manufacturing, marketing, servicing,
financing, strategic partnership or personnel matter relating to the disclosing
party, its present or future products, services, sales, suppliers, clients,
customers, employees, investors, business plans, business strategies, cost of
operations, and strategic relationships, whether in oral, written, graphic or
electronic form. If Proprietary Information is disclosed in oral
form, the disclosing party shall thereafter summarize it in writing and transmit
it to the other party within thirty (30) days of the oral
disclosure.
2. The
term “Proprietary
Information”
shall not be deemed to include information which: (a) is now, or
hereafter becomes, through no act or failure to act on the part of the receiving
party, generally known or available; (b) is known by the receiving party at
the time of receiving such information as evidenced by its records; (c) is
hereafter furnished to the receiving party by a third party, as a matter of
right and without restriction on disclosure; (d) is independently developed
by the receiving party without any breach of this NDA; or (e) is the
subject of a written permission to disclose provided by the disclosing
party.
3. Each
party shall maintain all Proprietary Information in trust and confidence and,
except as expressly set forth herein, shall not disclose to any third party or
use any Proprietary Information for any unauthorized purpose. Each
party may use such Proprietary Information only to the extent required to
accomplish the purposes of this NDA as set forth on Exhibit
E.A1 hereto. Proprietary Information shall not be used for any
purpose or in any manner that would constitute a violation of any laws or
regulations, including without limitation, the export control laws of the United
States. No rights or licenses to trademarks, inventions, copyrights
or patents are implied or granted under this NDA.
4. Proprietary
Information shall not be reproduced in any form except as required to accomplish
the intent of this NDA.
29
5. Each
party under this NDA shall advise its employees who might have access to
Proprietary Information of the confidential nature thereof and agrees that its
employees shall be bound by the terms of this NDA. No Proprietary
Information shall be disclosed to any employee who does not have a need for such
information. The receiving party shall not disclose any Proprietary
Information to any third party without the disclosing party's express, written
consent.
6. All
Proprietary Information (including all copies thereof) shall remain the property
of the disclosing party and shall be returned to the disclosing party after the
receiving party's need for it has expired, or upon request of the disclosing
party, and in any event, upon completion or termination of this
NDA.
7. Notwithstanding
any other provision of this NDA, disclosure of Proprietary Information shall not
be precluded if such disclosure:
(a) is
in response to a valid order of a court or other governmental body of the United
States or any political subdivision thereof; provided, however, that the
responding party shall first have given notice to the other party hereto and
shall have made a reasonable effort to obtain a protective order requiring that
the Proprietary Information so disclosed be used only for the purposes for which
the order was issued;
(b) is
otherwise required by law; or
(c) is
otherwise necessary to establish rights or enforce obligations under this NDA,
but only to the extent that any such disclosure is necessary.
8. This
NDA shall continue in full force and effect for so long as the parties continue
to exchange Proprietary Information. This NDA may be terminated by
either party at any time upon thirty (30) days written notice to the other
party. The termination of this NDA shall not relieve either party of
the obligations imposed by Paragraphs 3, 4, 5, 6 and 11 of this NDA with respect
to Proprietary Information disclosed prior to the effective date of such
termination and the provisions of those Paragraphs shall survive the termination
of this NDA for a period of five (5) years from the date of such
termination.
9. Any
dispute or claim hereunder between the named Parties, shall be resolved by
binding arbitration before the American Arbitration Association in San Diego,
California under the laws of the State of California. This shall be the
exclusive remedy between the Parties, and both parties hereby give up any rights
to trial by jury, court, appeal, or any other judicial mechanism for resolving
disputes.
10. This
NDA and Exhibit
E.A1 attached hereto and hereby incorporated herein, contain the final,
complete and exclusive NDA of the parties relative to the subject matter hereof
and supersedes all prior and contemporaneous understandings and NDAs relating to
its subject matter. This NDA may not be changed, modified, amended or
supplemented except by a written instrument signed by both parties.
11. Each
party hereby acknowledges and agrees that in the event of any breach of this NDA
by the other party, including, without limitation, the actual or threatened
disclosure or unauthorized use of a disclosing party's Proprietary Information
without the prior express written consent of the disclosing party, the
disclosing party will suffer an irreparable injury, such that no remedy at law
will afford it adequate protection against, xx appropriate compensation for,
such injury. Accordingly, each party hereby agrees that the other
party shall be entitled to specific performance of the receiving party's
obligations under this NDA, as well as such further relief as may be granted
through binding arbitration.
30
12. The
parties’ rights and obligations under this NDA will bind and inure to the
benefit of their respective successors, heirs, executors and administrators and
permitted assigns.
13. If
any provision of this NDA is found by a proper authority to be unenforceable,
that provision shall be severed and the remainder of this NDA will continue in
full force and effect.
14. Any
notices required or permitted hereunder shall be given to the appropriate party
at the address specified below or at such other address as the party shall
specify in writing. Such notice shall be deemed given upon the personal
delivery, or sent by certified or registered mail, postage prepaid, three (3)
days after the date of mailing.
In Witness
Whereof, the parties hereto have executed this NDA as
of the date set forth in the
first section hereof.
|
MechTech,
LLC
|
Innovative
Wireless Technologies, Inc.
|
|
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
31
Non-Disclosure Agreement
Exhibit E.A1
Purpose
for which Proprietary Information is to be disclosed: To enter into a
business relationship.
32
EXHIBIT
F
SHIPPING
AGREEMENT
This
Shipping Agreement is made and entered into as of August 6, 2010 (the “Effective
Date”), by and between MechTech, LLC, A California
limited liability company and Innovative Wireless Technologies,
Inc. (formerly known as “Bayrock Ventures, Inc.”) a Delaware corporation
(together with the MechTech, hereinafter referred to as the
“Parties”).
The
purpose of this document is to supplement the Shipping Agreement between
MechTech, LLC and Innovative Wireless Technologies, Inc., in which exclusive
Market Rights for the Products were granted to MechTech, LLC.
The
Parties agree to add standard shipping terms to this agreement over time and as
needed. MechTech, LLC, shall not grant any shipping terms to third
parties that exceeds the shipping terms set forth in this Shipping
Agreement.
In Witness
Whereof, the parties hereto have executed this Shipping Agreement as of the
date set forth in the first paragraph hereof.
|
MechTech,
LLC
|
Innovative
Wireless Technologies, Inc.
|
|
|
By:
|
By:
|
|
|
/s/ Xxxxxxxx X. Xxxxxxxx
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxxxxx
X. Xxxxxxxx,
|
Xxxxx
Xxxxxxx
|
|
|
Chief
Executive Officer
|
Chief
Executive Officer
|
|
|
And:
|
||
|
/s/ Xxxxxxxxxxx X. Xxxxxxxx
|
||
|
Xxxxxxxxxxx
X. Xxxxxxxx,
|
||
|
Chief
Operating Officer
|
33
Shipping Agreement Exhibit
F.A1
|
Innovative
Wireless Technology
Address:
Phone: Fax:
Email:
|
PURCHASE
ORDER
|
|
The
following number must appear on all related
correspondence,
shipping papers, and invoices:
P.O.
NUMBER:
|
|
|
To:
[Name]
MECHTECH
LLC
[Street
Address]
[City, ST ZIP
Code]
[Phone]
|
Ship
To:
[Name]
[Company
Name]
[Street
Address]
[City, ST ZIP
Code]
[Phone]
|
|
P.O. DATE
|
REQUISITIONER
|
SHIPPED VIA
|
F.O.B. POINT
|
TERMS
|
||||
|
|
|
|
|
|
QTY
|
UNIT
|
DESCRIPTION
|
UNIT
PRICE
|
TOTAL
|
||||
|
SUBTOTAL
|
||||||||
|
DELIVERY
DUTY PAYABLE
|
||||||||
|
SALES
TAX
|
||||||||
|
SHIPPING
& HANDLING
|
||||||||
|
OTHER
|
||||||||
|
TOTAL
|
||||||||
|
1. This
order will be entered in accordance with the prices, terms, delivery
method, and specifications listed above and the terms of the MECHTECH/IWT
Exclusive Distribution and Marketing Agreement.
2. All
products will be shipped Delivered Duty Paid.
3. Send
all correspondence to the addresses set forth above.
|
|||
|
Authorized
by
|
Date
|
||
34