EXHIBIT 10.5
STRATEGIC ALLIANCE AGREEMENT
This STRATEGIC ALLIANCE AGREEMENT ("Agreement") is entered into as of
_______ __, 2002 ("Effective Date") by QUANTUM FUEL SYSTEMS TECHNOLOGIES
WORLDWIDE, INC., a Delaware corporation ("Quantum") and IMPCO TECHNOLOGIES,
INC., a Delaware corporation ("IMPCO"), each a "Party" and collectively the
"Parties."
RECITALS
A. Quantum designs, develops and manufactures advanced gaseous storage and
handling modules, electronic controls and software, fuel storage, metering,
regulating and delivery systems, and systems integration involving compressed
gaseous fuels and supplies the same to original equipment manufacturers ("OEMs")
for fuel cell applications and alternative fuel OEM vehicles.
B. IMPCO designs and develops, among other things, components and
sub-systems for internal combustion engines utilizing alternative fuels.
C. The Parties seek to cooperate with each other under this Agreement, on
the terms and conditions specified herein, (1) in performing joint development
activities funded by IMPCO, and (2) in participating in joint marketing
activities.
D. The Parties wish to set forth herein the terms and conditions upon which
Quantum agrees to sell to IMPCO the Quantum Products (defined below), for use in
the Designated Markets.
AGREEMENT
1 DEFINITIONS.
1.1 "Commercially Available" means that the relevant product is generally
made available to customers, regardless of whether such customer: (a) is an end
user of the product; (b) subsequently sells the product as a stand-alone item;
and/or (c) integrates the product as a component of the customer's or third
party's product.
1.2 "Confidential Information" has the meaning set forth in Section 9.1.
1.3 "Customer" means any third party that has entered into an agreement
with IMPCO to obtain an IMPCO Product that includes, incorporates or utilizes
any Quantum Product.
1.4 "Designated Markets" means the following: (a) the worldwide automotive
Aftermarket, consisting of Class 1 through Class 5 vehicles; (b) the worldwide
bus and truck Aftermarket, consisting of Class 6 through Class 8 vehicles; (c)
the worldwide industrial Aftermarket consisting of, without limitation, material
handling, small and stationary engines, generators, pumps and other products not
used for transportational purposes; (d) the worldwide diesel automotive
Aftermarket, consisting of Class 1 through 5 diesel vehicles; (e) the worldwide
diesel bus and truck Aftermarket, consisting of Class 6 through Class 8 diesel
vehicles; (f) the worldwide industrial diesel Aftermarket, consisting of,
without limitation, material handling, small and stationary engines, generators,
pumps and other diesel products not used for transportational purposes; (g) the
worldwide market for original equipment manufacturers of
Classes 6 through Class 8 vehicles; (h) the worldwide market for industrial
original equipment manufacturers, including, without limitation, original
equipment manufacturers of material handling engines, small and stationary
engines, generators, pumps and other products not used for transportational
purposes; and (i) the worldwide original equipment manufacturers of all types
and classes of diesel engines and products. As used herein, "Aftermarket" when
used with respect to systems, components, parts or other items, shall mean the
market for any such foregoing item after the title of which has been transferred
from the manufacturer of such item to any third party, including without
limitation wholesalers, consumers, dealers or any other third party.
1.5 "Development Program" means any activity that is funded and directed
by IMPCO under which Quantum shall perform research and development, either
individually by Quantum or jointly by the Parties, as determined by the
Strategic Alliance Committee and reflected in a Statement of Work.
1.6 "IMPCO Product(s)" shall mean any IMPCO products that are or become
Commercially Available during the term of this Agreement.
1.7 "Intellectual Property Rights" means, collectively, Patents, Trade
Secrets, Copyrights, Trademark Rights, moral rights, and all other intellectual
property rights and proprietary rights, including any rights relating to
trademarks, tradenames and logos, whether arising under the laws of the United
States or any other state, country or jurisdiction, including all rights or
causes of action for infringement or misappropriation of any of the foregoing,
in each case now existing or hereafter developed. For purposes of this
Agreement: (i) "Patents" mean all patent rights and all rights, title and
interests in all patent applications and patents to issue on them, all letters
patent or equivalent rights and applications, including any reissue, extension,
division, continuation, or continuation-in-part applications throughout the
world; (ii) "Trade Secrets" mean all rights, title and interests in and to all
trade secrets and trade secret rights arising under common law, state law,
federal law or laws of foreign countries, including, without limitation, all
know-how, trade secrets, other confidential information, customer lists,
software, technical information, data, process technology, plans, drawings, and
blue prints; (iii) "Copyrights" mean all copyrights, and all rights, title and
interests in and to all copyrights, copyright registrations and applications for
copyright registration, certificates of copyright and copyrighted interests
throughout the world, all rights in mask works, and all rights, title and
interests in related applications and registrations throughout the world; and
(iv) "Trademark Rights mean all trademarks, servicemarks, trade names, rights in
trade dress, and all trademark interests throughout the world, and all right,
title and interest in related applications and registrations throughout the
world, whether arising under the laws of the United States or any other state,
country or jurisdiction, including all rights or causes of action for
infringement or misappropriation of the foregoing, in each case now existing or
hereafter developed during the Term of this Agreement.
1.8 "Purchase Order" means a written purchase order between the Parties
pursuant to which Quantum will sell Quantum Products to IMPCO under the terms
and conditions set forth in Section 4.
1.9 "Quantum Product(s)" shall mean all of Quantum's fuel metering
products, fuel delivery products, fuel regulating products, fuel storage
products, electronic control products and
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any related products that are or become Commercially Available during the term
of this Agreement.
1.10 "Statement of Work" means a detailed plan to implement a Development
Program, as more fully defined in Section 3. A template Statement of Work,
mutually agreed to by the Parties, shall be attached hereto as Exhibit A after
execution hereof by the parties.
1.11 "Strategic Alliance Committee" or "SAC" means the combination of
representatives from each Party that will manage and coordinate the work under
this Agreement as described in Section 2.
2 STRATEGIC ALLIANCE COMMITTEE.
2.1 Within ten (10) business days after the Effective Date, each Party
shall assign two (2) qualified members (each a "Member") to the SAC to meet and
cooperate to define and manage the efforts of SAC under this Agreement. Either
Party may replace its Members in its sole discretion upon notice to the other
Party. Each Party shall bear its own costs and expenses related to the SAC. The
SAC shall meet once every six (6) months, at a minimum but more often if
mutually agreed by the Parties, to satisfy its responsibilities under this
Agreement. The responsibilities of the SAC shall include the following:
(a) In the event that IMPCO desires to purchase specific Quantum
products that do not meet the definition of a Quantum Product, IMPCO shall bring
this desire to the attention of the SAC, and the Members shall negotiate the
request in good faith. In the event that the SAC determines that such Products
should be sold by Quantum to IMPCO, (i) Quantum shall sell such products to
IMPCO, and (ii) such products shall be deemed Quantum Products for purposes of
this Agreement, and shall be treated as such, unless otherwise agreed to in
writing by the Parties.
(b) The SAC shall identify potential Development Programs and, if
mutually approved by both Parties, negotiate the terms and conditions of each
Development Program, which shall be set forth in a written Statement of Work (as
described in more detail in Section 3).
(c) The SAC shall modify and, if appropriate, expand the Designated
Markets as needed, whether in their entirety or on a Customer-specific basis.
Such a decision to modify the Designated Markets shall be based on all relevant
factors, including, but not limited to: (i) the location and particular needs of
the specific market or customer; (ii) individual customer requirements and
requests; (iii) regulatory requirements relevant to the specific market or
customer; and (d) specific capabilities of each Party with respect to any
particular market or customer.
(d) The SAC shall consider in good faith any joint marketing
opportunities presented by the Members, and allocate the responsibilities
between the Parties, including but not limited to: costs, schedules, and
participation of the Parties.
(e) The SAC shall perform such other responsibilities as may be
required from time to time for purposes of this Agreement.
2.2 At the first meeting of the SAC, to be held at a time and location as
mutually agreed by the Parties, the Members shall discuss and approve the
initial Development Programs and the amount of engineering resources to be
allocated to each program by the Parties (the "Project Roadmap"). At least the
first meeting of the SAC shall be face-to-face but all
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subsequent meetings may be held via conference call, videoconferencing or by
other telecommunicative means. The SAC shall revise and publish the Project
Roadmap as deemed necessary.
2.3 All decisions of the SAC must be made by a majority of the Members. If
the Members cannot reach a decision on a particular issue, senior managers of
Quantum and IMPCO will meet and negotiate in good faith to resolve the issue
within a reasonable period of time. If the issue is not resolved within thirty
(30) calendar days after the senior managers of Quantum and IMPCO have met, then
either Party may elect to cancel the applicable Development Program(s),
effective immediately, by providing written notice to the other Party.
3 DEVELOPMENT
3.1 Agreement and Statement(s) of Work. The Parties acknowledge that this
Agreement between Quantum and IMPCO relates to the terms and conditions that
will apply to any Statement(s) of Work executed hereunder. The Parties
understand that from time to time certain Development Programs may be proposed
to the SAC. Each proposed Development Program must be approved by a majority
vote of the SAC. If approved, the SAC shall undertake good faith negotiations to
reduce the Development Program to a written Statement of Work within a
reasonable period of time. If the SAC cannot agree on the terms and conditions
of the Statement of Work within thirty (30) calendar days following approval of
the underlying Development Program, senior managers of Quantum and IMPCO will
meet and negotiate in good faith the terms and conditions of the applicable
Statement of Work. If the terms and conditions of the applicable Statement of
Work is not agreed to and the Statement of Work is not executed within thirty
(30) calendar days following such escalation to the senior managers, either
Party may elect to remove the underlying Development Program from the Project
Roadmap by providing written notice to the other Party.
3.2 Each Statement of Work will set forth the timetable, performance,
payment, ownership rights, license rights (if any), obligations of each Party to
the other Party with respect to Jointly-Owned Technology, and delivery
obligations of the Parties, and will be executed by both IMPCO and Quantum in
order to be valid. Subject to the terms and conditions of this Agreement, the
Parties agree to use commercially reasonable efforts to perform their
obligations under each Statement of Work in accordance with the specifications
and schedule set forth in such Statement of Work. The SAC shall determine the
priority of different Statements of Work and the amount of engineering resources
to be allocated to each Development Project. Finally, the Parties agree that
there is no limit on the number of Statements of Work that may be executed
during the term of this Agreement.
3.3 Reporting Development Progress. Each Party shall appoint a project
manager who will coordinate and act as liaison with the other Party with respect
to each Statement of Work. The project managers shall participate in project
review meetings to be scheduled by mutual agreement of the respective project
managers. IMPCO personnel shall be entitled to visit Quantum's place of business
upon reasonable prior notice to Quantum to discuss and inspect the status of
progress under any Statement of Work. Quantum shall keep IMPCO reasonably
informed in writing of its progress under each Statement of Work.
3.4 Subcontractors. Either Party may use subcontractors to perform any
task assigned to such Party under a Statement of Work, provided that such
subcontractor (a) is approved in writing by the SAC to perform such task, (b)
agrees in writing to keep confidential
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all information and data received from the Parties or generated under the
subcontract or in performing any services, and (c) agrees in writing to assign
to IMPCO and/or Quantum (as determined by the Parties and set forth in the
applicable Statement of Work), before such subcontractor commences work, any and
all materials, inventions, improvements and any other item developed, designed
or created in connection with the services provided by such subcontractor or its
employees.
3.5 Plant Visits. Personnel of either Party visiting facilities of the
other Party will comply with all the then established and existing safety and
environmental rules and regulations of the facility visited, provided that such
rules and regulations are disclosed by the host Party to such personnel. The
host Party shall not be responsible for death, damage, injury or loss suffered
or incurred during visits to its facilities by any personnel in the employ of
the other Party, except for death, damage, injury or loss resulting from the
willful or negligent acts or omissions of the host Party, its agents, employees
or third parties under the host Party's supervision or control.
4 PURCHASE ORDERS
4.1 Sales of Quantum Products. IMPCO shall have the right to sell Quantum
Products only as incorporated components of IMPCO Products, not as stand-alone
components, and solely in the Designated Markets. Notwithstanding the foregoing,
IMPCO may sell stand-alone Quantum Products solely as replacement parts or spare
parts to Customers and users of IMPCO Products.
4.2 Terms and Conditions. During the term of this Agreement, IMPCO shall
have the right to purchase Quantum Products from Quantum pursuant to the
following:
(a) Purchases of Quantum Products shall be initiated by IMPCO via a
written or electronically-dispatched Purchase Order which shall reference (a)
the number of units of each type of the Quantum Products, (b) subject to Section
4.2(b), the applicable per-unit price as provided by Quantum, (c) a commercially
reasonable carrier or means of transportation or routing, including, the place
to which the Quantum Products are to be shipped, (d) packaging instructions, and
(e) the requested delivery date. Quantum is not required to accept, but shall
not unreasonably reject, any Purchase Order which specifies a delivery date
earlier than thirty (30) days after the date such Purchase Order is submitted by
IMPCO. Quantum shall be obligated to accept any Purchase Order which specifies a
delivery date that is later than forty-five (45) days after the date such
Purchase Order is submitted by IMPCO. Quantum shall respond to the proposed
Purchase Order within ten (10) business days after receipt, by either: (i)
rejecting the proposed Purchase Order and providing the good faith reasons in
writing for such rejection, (ii) accepting the proposed Purchase Order, or (iii)
accepting the proposed Purchase Order with modified terms, not inconsistent with
this Agreement, that will be subject to IMPCO's acceptance to be valid. Failure
of Quantum to reject or accept any proposed Purchase Order as set forth above
within such ten (10) business day period shall constitute acceptance of such
proposed Purchase Order. If a proposed Purchase Order is accepted by Quantum
with modified terms, IMPCO shall have the option of issuing a Purchase Order
that reflects the terms agreed to by Quantum in such response within ten (10)
business days after receipt of Quantum's response. If IMPCO so issues such a
Purchase Order reflecting the terms agreed to by Quantum, Quantum shall be
deemed to have accepted such terms and the Purchase Order as a whole. All
Purchase Orders placed by IMPCO hereunder shall be governed by the terms and
conditions of this Agreement. In the event of a conflict between the provisions
of this Agreement and the terms
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and conditions of one or more of IMPCO's Purchase Orders, or Quantum's
acknowledgment or other written communications, the provisions of this Agreement
shall prevail.
(b) The prices charged to IMPCO for the purchase of Quantum Products
shall be not exceed prices which are twenty-five percent (25%) greater than
Quantum's fully allocated manufacturing costs for such Quantum Products. As used
herein, "manufacturing costs" includes, but is not limited to (a) labor costs
directly associated with the manufacture of the Quantum Products, (b) supply
costs and raw material costs, (c) per-unit Quantum Product costs of equipment
directly used to manufacture the Quantum Products, and (d) overhead costs
directly associated with the manufacture of the Quantum Products.
(c) IMPCO may request to reschedule the delivery date for a Purchase
Order to a later date, and Quantum shall accommodate such rescheduled date if it
is reasonably able to do so, provided that IMPCO shall bear any additional
storage and other costs resulting from the delayed delivery. In the event that
IMPCO requests to expedite the delivery date, Quantum shall accommodate such
request if it is reasonably able to do so, provided that IMPCO shall bear any
additional reasonable shipping and other costs resulting from expedited
delivery. IMPCO shall have the right to cancel any Purchase Order, without any
liability, if it provides notice of cancellation at least thirty (30) days prior
to the scheduled delivery date of such Purchase Order. Quantum shall promptly
notify IMPCO in writing of any anticipated delay in meeting the delivery date
for any Purchase Order. IMPCO shall have the right to cancel any Purchase Order
within thirty (30) days of the scheduled delivery date, provided that IMPCO
shall be responsible for a cancellation fee equal to all reasonable, direct,
out-of-pocket costs actually incurred by Quantum in connection with such
cancellation.
(d) All shipments shall be F.O.B. Quantum's or Quantum's supplier's
dock ("Delivery Location"). Title and risk of loss shall pass to IMPCO upon
Quantum's delivery of the Quantum Products to IMPCO or its designated freight
forwarder at the Delivery Location. IMPCO shall be responsible for all shipping
and freight costs and expenses for delivering the Quantum Products from the
Delivery Location. Quantum may ship partial Purchase Orders provided it notifies
IMPCO in advance and IMPCO agrees in advance to such prior to shipment. If IMPCO
fails to specify a commercially reasonable carrier or means of transportation or
routing in its Purchase Order, Quantum shall select the best available carrier,
on a commercially reasonable basis.
(e) Each of the Quantum Products shall be packaged and prepared for
shipment in a manner which follows the reasonable specifications provided in the
applicable Purchase Order. The parties shall mutually agree on any changes to
such requirements. Each shipment shall be accompanied by a packing slip on the
outside of the box which will include the Purchase Order number and the number
of each type of the Quantum Products shipped.
(f) Invoices for shipped Quantum Products shall be due and payable net
thirty (30) days from the time IMPCO takes title of the units of the Quantum
Products. Payment shall not constitute acceptance of the Quantum Products by
IMPCO.
(g) All Quantum Products delivered hereunder shall fully comply with
all applicable safety and other regulations and import and export licenses
necessary to deliver the Quantum Products to the Delivery Location. The Quantum
Products delivered hereunder shall be free from defects in materials and
workmanship for a period of two (2) years after delivery to IMPCO. The Quantum
Products shall comply with all applicable specifications set forth in data
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sheets for such Products and other publications of Quantum relating to the
Quantum Products, and as otherwise agreed by the Parties, and shall not infringe
or misappropriate any Intellectual Property Right or other right of a third
party.
(h) Quantum shall indemnify and hold IMPCO harmless from and against
any liabilities, costs and expenses (including reasonable attorneys' fees)
arising out of a claim that any of the Quantum Products infringes or
misappropriates any third party's Intellectual Property Rights or other rights
or that the use of any of the Quantum Products has resulted in bodily harm or
death to any person, or damage to any physical property. IMPCO shall (i)
promptly notify Quantum in writing of the threats, claims or proceedings, (b)
give Quantum sole control over the defense and/or settlement of such suit or
proceeding or claim, and (c) reasonably cooperate with Quantum in the defense
and any settlement negotiations relating to such claim. Notwithstanding the
foregoing, Quantum shall not have any right, without IMPCO's prior written
consent, to settle any such claim if such settlement arises from or is part of
any criminal action, suit or proceeding or contains a stipulation to or
admission or acknowledgment of, any liability or wrongdoing (whether in
contract, tort or otherwise) on the part of IMPCO. IMPCO shall have the right,
in its absolute discretion and at its sole cost, to employ attorneys of its own
choice and to institute or defend any claim for which it has the right to seek
indemnification from Quantum.
5 PATENT PROSECUTION
5.1 Patents. The Parties acknowledge that during performance of
Statement(s) of Work, the Parties may develop technology that will be jointly
owned by the Parties as set forth on the applicable Statement of Work
("Jointly-Owned Technology"). Subject to the limitations set forth in this
Section 5.1, IMPCO shall have the right, but not the obligation, to prosecute
patents for the Jointly-Owned Technology, subject to the reasonable review of
Quantum's legal counsel. IMPCO and Quantum will each pay fifty percent (50%) of
the reasonable costs incurred by IMPCO to prosecute such patents as are approved
in writing by IMPCO for filing, including filings and attorney fees.
(a) The SAC will select (and if the SAC is unable to do so after
escalation to senior managers of Quantum and IMPCO pursuant to Section 2.3,
IMPCO shall have the right to select) patent counsel to evaluate patentability
of inventions arising under the Jointly-Owned Technology ("Jointly Developed
Inventions") and to diligently prepare, file, and prosecute such patent
applications ("Joint Applications") as are necessary or appropriate to obtain
patent protection with respect to any of the Jointly Developed Inventions in the
United States and any other country. In the event that IMPCO selects such patent
counsel, IMPCO agrees to obtain Quantum's written consent prior to the filing of
any Joint Applications in any country, it being agreed that any costs of such
Joint Applications made without Quantum's prior written consent shall be born by
IMPCO, alone. Quantum agrees that its consent shall not be unreasonably withheld
or delayed, and such consent will be deemed given if Quantum fails to notify
IMPCO in writing that it is withholding its consent and the reasonable basis for
withholding such consent, within thirty (30) days after receipt of a written
request for such written consent. IMPCO and its counsel shall diligently
prosecute Joint Applications approved by both Parties, but IMPCO shall not be
obligated to further pursue any Joint Application which has been twice rejected
or to appeal any final rejection of any Joint Application. IMPCO agrees to
provide to Quantum copies of the Joint Applications, official correspondence
relating thereto, and such other information with respect thereto as Quantum may
reasonably request.
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(b) IMPCO shall consult with Quantum and its counsel concerning the
preparation and prosecution of all Joint Applications and shall provide Quantum
with copies of all material documentation after receipt from, or prior to,
submission to any governmental agency with jurisdiction to issue patents, so
that Quantum may make reasonable comments with respect thereto which IMPCO shall
consider in good faith. Quantum shall execute, deliver and file, or cause to be
executed, delivered and filed, such documents, information and applications, and
take or cause to be taken all such other actions as IMPCO deems desirable or
necessary in connection with the prosecution of all Joint Applications, whether
or not Quantum has approved the filing of any such Joint Applications.
(c) Notwithstanding anything to the contrary in Section 9 below, the
patent counsel handling a Joint Application may incorporate in the Joint
Application any Confidential Information relating to the underlying Jointly
Developed Invention that he or she determines, in his or her best judgement, is
reasonably necessary to adequately support claims to the Jointly Developed
Invention. Such patent counsel shall also have the right to disclose to the U.S.
Patent and Trademark Office any such Confidential Information that he or she
determines, in his or her best judgement, should be disclosed to meet a duty of
disclosure in connection with a Joint Application. Prior to disclosing such
Confidential Information, such patent counsel shall afford the Party to whom
confidentiality obligations are owed an opportunity to comment on such
disclosure and consider in good faith any alternative course of action proposed
by such Party.
5.2 Disclosure of Inventions. All inventions or improvements relating to a
Development Project that are developed in whole or in part by IMPCO or Quantum
personnel while performing such Development Project shall be promptly disclosed
to IMPCO and Quantum for patent worthiness consideration, and each Party shall
execute, or obtain the execution of, any papers as may be necessary to perfect
ownership thereof in the appropriate Party or Parties as set forth above, or as
may be necessary in the obtainment, maintenance or enforcement of any patent,
trade secret, trademark, copyright or other proprietary right pertaining
thereto. All expenses incident to such obtainment, maintenance and/or
enforcement will be borne by the Party or Parties owning such
inventions/improvements.
6 SUPPORT.
6.1 Obligations. Each Party agrees that it shall obtain and maintain for
itself all necessary government licenses, permits, and approvals when necessary
or advisable for performing its obligations under this Agreement, and comply
with all applicable laws, statutes, and regulations in connection with its
obligations under this Agreement.
6.2 Rights in Data. Both Parties acknowledge that all software and
software related items licensed pursuant to this Agreement and any Statement of
Work are "Commercial Computer Software" or "Commercial Computer Software
Documentation" as defined in FAR 12.212 for civilian agencies and DFARS 227.7202
for military agencies, and that in the event that Quantum is permitted under
this Agreement to provide such items to the U.S. government, such items shall be
provided under terms at least as restrictive as the terms of this Agreement and
the applicable Statement of Work.
6.3 Customers. Both parties acknowledge that: (a) other than Quantum's
warranty obligations under Section 4.2(g), Quantum will have no obligation to
provide any support or maintenance to IMPCO's Customers, and that IMPCO shall
make no representations to its
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Customers that Quantum has an obligation to provide support or maintenance to
IMPCO's Customers; and (b) IMPCO will have no obligation to provide any support
or maintenance to Quantum's customers, and that Quantum shall make no
representations to its customers that IMPCO has an obligation to provide support
or maintenance to Quantum's customers.
6.4 Trademarks. No rights to use the other Party's trademarks are granted
under this Agreement. To the extent that the SAC agrees to undertake any joint
marketing activities under Section 2.1(d) of this Agreement, the terms and
conditions governing each Party's rights to use the other Party's trademarks (or
other Intellectual Property Rights) shall be determined by the SAC at that time
in writing.
7 WARRANTIES & DISCLAIMERS.
7.1 WARRANTIES. Each Party warrants and represents to the other that: (a)
it will perform all development and other services described in any Statement of
Work in a professional and workmanlike manner, using reasonable skill and care
in a manner consistent with the industry standards; and (b) it has the full
power and authority to enter into this Agreement and all Statements of Work.
7.2 DISCLAIMERS. EXCEPT AS PROVIDED IN SECTIONS 4.2 AND 7.1 AND ELSEWHERE
IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY REGARDING THE PRODUCTS,
INFORMATION, AND SERVICES PROVIDED, AND EXPRESSLY DISCLAIMS ALL IMPLIED OR
STATUTORY WARRANTIES WITH RESPECT TO ANY PRODUCTS, INFORMATION, OR SERVICES,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
8 LIMITATION OF LIABILITY AND REMEDY. EXCEPT FOR QUANTUM'S INDEMNIFICATION
OBLIGATION UNDER SECTION 4.2(H) AND BREACHES OF CONFIDENTIALITY OBLIGATIONS
UNDER SECTION 9, NEITHER PARTY WILL BE LIABLE FOR ANY LOST PROFITS OR OTHER
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES ARISING FROM OR RELATING
SOLELY TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
EVEN IF ANY EXCLUSIVE REMEDY STATED IN THIS AGREEMENT IS DEEMED TO FAIL OF ITS
ESSENTIAL PURPOSE.
9 CONFIDENTIALITY
9.1 Definition of Confidential Information. "Confidential Information"
shall mean any and all information and material, whether in writing, or in oral,
graphic, electronic or any other form, disclosed by or on behalf of the
disclosing Party (the "Discloser") to or for the benefit of the receiving Party
(the "Recipient") or obtained by the Recipient through inspection or observation
of the Discloser's property or facilities, that is marked as (or provided under
circumstances reasonably indicating it is) confidential and proprietary, or if
disclosed orally or in other intangible form or in any other form that is not so
marked, that is identified as confidential at the time of such disclosure or
within thirty (30) days thereafter. Confidential Information also includes any
information described above which the Discloser obtains from a third party,
whether or not owned by the Discloser. Confidential Information does not include
information or material (i) which becomes publicly known through no act or
omission of Recipient, (ii)
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which is later lawfully acquired from sources other than the Discloser who do
not owe a duty of confidentiality to the Discloser with respect to such
information and who did not learn of it, directly or indirectly, from Discloser,
or (iii) which is independently developed by the Recipient without the use of or
reference to the Confidential Information of the Discloser, as evidenced by the
Recipient's contemporaneous written records.
9.2 Confidentiality Obligations. During the term of and pursuant to this
Agreement, the Parties, to the extent of their right and willingness to do so,
may exchange Confidential Information relating to the purpose of the relevant
Development Program(s). For a period of five (5) years after each Recipient
receives or learns the Confidential Information of the Disclosure, each
Recipient shall not (a) use the Confidential Information of the Discloser other
than to perform its obligations under this Agreement or a Statement or Work, (b)
disclose the Confidential Information of the Discloser other than to its
employees and independent contractors who have a need to know such Confidential
Information in order for Recipient to exercise its rights and fulfill its
obligations under this Agreement or a Statement of Work, subject to the
provisions and exceptions of this Agreement, or (c) decompile, reverse engineer,
or disassemble any Confidential Information of the Discloser except as provided
in a Statement of Work or otherwise approved in advance in writing by the
Discloser. Recipient shall use commercially reasonable efforts to maintain the
confidentiality of the Discloser's Confidential Information, which in any event
shall not be less than those which the Recipient uses to protect its own
Confidential Information of a similar nature.
9.3 Return of Confidential Information. Confidential Information of the
Discloser shall remain the property of the Discloser and shall be returned, at
the request of the Discloser, upon completion of the relevant Development
Program or upon earlier request of the Discloser. Notwithstanding the above, the
results of Development Programs identified as deliverables in a Statement of
Work shall be deemed Confidential Information of both Parties until such time as
a patent application is filed under Section 5.1 of this Agreement or the Parties
agree in writing not to file any such patent application.
9.4 Confidentiality of Agreement. Each Party agrees that the terms and
conditions of this Agreement shall be treated as confidential and that neither
Party will disclose the terms or conditions of this Agreement to any third party
without the prior written consent of the other Party, provided, however, that
each Party may disclose the terms and conditions of this Agreement, to the
extent necessary: (a) as required by any court or other governmental body; (b)
required by law; (c) in confidence to legal counsel of the Parties, accountants,
and other professional advisors; (d) in confidence, to banks, investors and
other financing sources and their advisors; (e) in connection with the
enforcement of this Agreement or rights under this Agreement; or (f) in
confidence, in connection with an actual or prospective merger or acquisition or
similar transaction. With respect to disclosure required by a court or
governmental order, the disclosing Party shall provide prior notification of
such impending disclosure to the non-disclosing Party. All reasonable efforts to
preserve the confidentiality of the terms of this Agreement shall be expended by
the disclosing Party in complying with such an order, including obtaining a
protective order to the extent reasonably possible. Any SEC filings required by
law shall be made after any sensitive information in the Agreement has been
accorded confidential protection under applicable SEC rules and regulations.
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10 COMPENSATION. The payment obligations of IMPCO, if any, will be
described in the applicable Statement of Work and Purchase Order, if any.
11 TERMINATION
11.1 Term. The term of this Agreement shall commence as of the Effective
Date and will continue for a period of three (3) years unless earlier terminated
in accordance with Section 11.2. At the end of the initial term, the Agreement
will automatically expire unless the Parties mutually agree to extend the term
of this Agreement. The term of any Development Project will be specified in each
Statement of Work.
11.2 Termination.
(a) Material Breach. Either Party may terminate this Agreement, or an
individual Statement of Work, without liability if the other Party materially
breaches any of its obligations under this Agreement, or a Statement of Work,
respectively (a "Default"), which Default is not cured within thirty (30)
business days after the non-defaulting Party has given the defaulting Party
written notice sufficiently describing the nature of the Default. Both Parties
reserve the right to terminate this Agreement and other Statement(s) of Work
upon thirty (30) business days written notice to the other Party, if a Statement
of Work is breached by or on behalf of the other Party in such a manner that the
non-breaching Party reasonably and in good faith determines that it is
unfeasible for the non-breaching Party to continue its business relationship
with the other Party under this Agreement and Statement(s) of Work. Either Party
may also terminate this Agreement in the event of any of the following: (a) The
filing by or against the other Party of any other proceeding concerning the
bankruptcy, insolvency, dissolution, cessation of operations, reorganization of
indebtedness or the like of the other Party. If such proceeding is involuntary
and is contested in good faith, this Agreement shall terminate only after the
passage of one-hundred twenty (120) days without the dismissal of such
proceedings; (b) the appointment of a receiver, keeper, liquidator or custodian
of whatever sort of description, for all or a substantial portion of the other
Party's assets, provided that termination shall not be effective in the event of
an involuntary proceeding against such Party if such proceeding is dismissed
within one-hundred twenty (120) days after the filing thereof; or (c) the
termination, dissolution, insolvency or failure in business of the other Party,
the distribution of a substantial portion of its assets, or its cessation to
continue all or substantially all of its business affairs.
(b) Mutual Consent. This Agreement may be terminated at any time by
mutual written consent of the Parties.
(c) Rights on Termination. Upon any termination or expiration of this
Agreement for any reason, each Party shall promptly return to the other Party or
(at the other Party's option) destroy, all Confidential Information of the other
Party, as appropriate, delivered pursuant to this Agreement and the Statements
of Work hereunder. Statement(s) of Work pending as of the termination of this
Agreement shall remain in effect through the term of the applicable Statement(s)
of Work unless either Party terminates the applicable Statement(s) of Work
separately pursuant to this Agreement. Purchase Orders that have been accepted
but under which Quantum Products have not yet been delivered as of the
termination of this Agreement shall remain in effect. Confidential Information
pertaining to Statements of Work that survive termination of this Agreement
shall not be subject to return or destruction pursuant to this
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Section 11.2(c) until such time as the applicable Statement(s) of Work are
actually terminated or reach expiration.
11.3 Survival. The right to terminate this Agreement pursuant to Section
11.2(a) shall be in addition to any other remedy either Party may have at law or
in equity, which remedies shall survive any such termination. No termination or
expiration of this Agreement. The obligations in this Agreement which are
intended by their terms to survive the expiration or termination of this
Agreement shall so survive. In addition, without limiting the generality of the
foregoing, the provisions of Sections 1 ("Definitions"), 4 ("Purchase Orders"),
5 ("Patent Prosecution"), 6.2 ("Rights in Data"), 7 ("Warranties and
Disclaimers"), 8 ("Limitation of Liability and Remedy"), 9 ("Confidentiality"),
11.2(c) ("Rights on Termination"), 11.3 ("Survival"), and 12 ("General") shall
survive any termination, cancellation or expiration of this Agreement or
Statement(s) of Work.
12 GENERAL.
12.1 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given (a) on the date of service if served personally on the Party to whom
notice is to be given, (b) if sent by fax, upon confirmation of receipt by fax
by the receiving Party or the sender's facsimile machine receiving confirmation
of uninterrupted transmission by a transmission report, (c) one business day
after deposit with a reputable overnight carrier, prepaid for overnight delivery
and addressed as set forth in (d), or (d) two (2) business days after deposit in
the mail if mailed by first class mail, registered or certified, postage
prepaid, and properly addressed as follows:
If to Quantum: QUANTUM FUEL SYSTEMS TECHNOLOGIES With a Xxxxxxx Coie LLP
WORLDWIDE, INC. copy to: 0000 00xx Xxxxxx
00000 Xxxxxxxxxx Xxxx 0xx Xxxxx
Xxxxxx, XX 00000 Xxxxx Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000 Fax: (000) 000-0000
If to IMPCO: IMPCO Technologies, Inc. With a Xxxxxxxx & Xxxxxxxx, LLP
00000 Xxxxxxx Xxxxx copy to: 000 Xxxx 0xx Xxxxxx
Xxxxxxxx, XX 00000 35th Floor
Attention: Chief Financial Officer Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000 Attention: Xxxxxxxx Xxxxx
Fax: (000) 000-0000
Each Party may change its address by notice given in accordance with this
Section.
12.2 Export. Each Party agrees that it will not export, or attempt to
export, to any country any technical data received hereunder or the product
produced by use of such technical data, without first obtaining all necessary
licenses and consents under any applicable treaties, statutes and regulations,
including, without limitation, the Export Administration Act of 1979, as
amended, any successor legislation, and the Export Administration Regulations
issued by the
12
Department of Commerce, International Trade Administration, or Office of Export
Licensing. Each donor Party will notify the receiving Party of any technical
data or hardware that the donor Party supplies and knows to be controlled
data/hardware under any of the aforesaid treaties, statutes and regulations.
12.3 Governing Law and Forum Selection. This Agreement and all Purchase
Orders shall be governed by and construed in accordance with the laws of the
State of California applicable to contracts made and to be performed in the
State of California, without reference to the conflict of laws provisions
thereof. The Parties expressly disclaim the application of the United Nations
Convention on the International Sale of Goods to this Agreement. Any action
arising out of or relating to this Agreement or any Purchase Order shall be
brought solely in (a) the Superior Court of the State of California, Los Angeles
County, and (b) the United States District Court for the Central District of
California, except that either Party may seek and obtain injunctive, equitable
or similar relief from any court of competent jurisdiction. Each of the Parties
agrees to commence any action, suit or proceeding relating to this Agreement or
any Purchase Order either in the United States District Court for the Central
District of California or if such suit, action or other proceeding may not be
brought in such court for jurisdictional reasons, in the Superior Court of the
State of California, Los Angeles County. Each of the Parties further agrees that
service of any process, summons, notice or document by U.S. registered mail to
such Party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in California with respect to any
matters to which it has submitted to jurisdiction in this Section 12.3. Each of
the Parties irrevocably and unconditionally waives any objection to the laying
of venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby in (i) Superior Court of the State of
California, Los Angeles County, or (ii) the United States District Court for the
Central District of California, consents to the jurisdiction of such courts, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such action, suit or proceeding brought in any
such court has been brought in an inconvenient forum.
12.4 Attorneys' Fees. In the event of any action, suit or proceeding,
including arbitration, between the Parties hereto, initiated to enforce or
interpret any term or provision of this Agreement or a Purchase Order, or
otherwise arising out of this Agreement or a Purchase Order, the prevailing
Party in such action shall be entitled to recover all costs incurred in
connection therewith, including without limitation reasonable attorneys' fees.
12.5 Waiver. The delay or failure of a Party to exercise any right, power,
remedy, or privilege hereunder or failure to strictly enforce any breach,
violation, default, provision or condition shall not impair any such right,
power, remedy or privilege nor shall it constitute a waiver thereof or
acquiescence thereto. Any waiver, permit, consent, or approval of any kind
regarding any breach, violation, default, provision or condition of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. No partial waiver of any such right,
power, privilege, breach, violation, default, provision, or condition on any one
occasion shall preclude any other or further exercise thereof or constitute a
waiver thereof or acquiescence thereto on any subsequent occasion unless clear
and express notice thereof in writing is provided.
12.6 Assignment. This agreement shall not be assigned by either Party
without the prior written approval of the other Party except to the successor in
ownership by sale, merger, consolidation or divestiture of all or substantially
the whole of the relevant business of the Party
13
wishing to make the assignment. The Agreement will be binding upon and inure to
the benefit of each Party's authorized successors and permitted assigns.
12.7 Captions. All Section captions and headings are for reference only
and shall not be considered in interpreting or construing this Agreement.
12.8 Severability. If any provision of this Agreement is declared invalid,
illegal, or unenforceable by any tribunal, then such provision shall be deemed
automatically adjusted to conform to the requirements for validity as declared
at such time and, as so adjusted, shall be deemed a provision of this Agreement
as though originally included herein. In the event that the provision deemed
invalid, illegal or unenforceable is of such a nature that it cannot be so
adjusted, the provision shall be deemed deleted from this Agreement as though
the provision had never been included herein. If any provision or portion of
this Agreement is held to be unenforceable or invalid, the Parties agree to
negotiate, in good faith, a substitute valid provision which most nearly effects
the Parties' intent in entering into this Agreement. In either case, the
remaining provisions of this Agreement shall remain in full force and effect.
WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH
AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF
LIABILITY, DISCLAIMER OF WARRANTY OR EXCLUSION OF DAMAGES IS INTENDED BY THE
PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION. FURTHER, IN
THE EVENT THAT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SHALL
REMAIN IN EFFECT.
12.9 Independent Contractors. The Parties are each independent contractors
and neither Party shall be, nor represent itself to be, the franchiser, joint
venturer, franchisee, partner, broker, employee, servant, agent, or legal
representative of the other Party for any purpose whatsoever. Neither Party is
granted any right or authority to assume or create any obligation or
responsibility, express or implied, on behalf of or in the name of the other
Party, or bind the other Party in any matter or thing whatsoever, including but
not limited to, the right or authority to obligate the other Party to accept or
deliver any order, or to sell or refuse to sell to any potential customer.
12.10 Remedies Cumulative. All remedies, either under this Agreement or by
law or otherwise afforded to any Party, shall be cumulative and not exclusive or
alternative and shall be in addition to all remedies given hereunder or now or
thereafter existing, at law or in equity, by statute or otherwise. The election
of any one or more remedies by any Party shall not constitute a waiver of the
right to pursue other available remedies.
12.11 Injunctive Relief. The Parties acknowledge that any breach of the
provisions of this Agreement relating to proprietary rights of either Party may
cause irreparable harm and significant injury to an extent that may be difficult
to ascertain. Accordingly, each Party agrees that the other Party will have, in
addition to any other rights or remedies available to it at law or in equity,
the right to seek injunctive relief to enjoin any breach or violation of such
sections.
12.12 Force Majeure. Either Party shall not be responsible for any delay or
failure in performance hereunder, including the payment of monies, caused by
reason of any occurrence or contingency beyond its reasonable control, including
but not limited to, acts of nature, acts or terrorism, earthquake, floods,
lightning, labor disputes and strikes, other labor or industrial
14
disturbances, riots, war, acts of the public enemy, insurrections, embargoes,
blockages, regulations or orders of any government, agency or subdivision
thereof, shortages of materials, rationing, utility or communication failures,
casualty, novelty of product manufacture or other unanticipated product
development problems, and governmental requirements (each, a "Force Majeure").
Obligations shall in no event but excused but shall be suspended on a day-to-day
basis for the period of time equal to that of the underlying Force Majeure (and
the corresponding obligations of the other Party shall be similarly suspended).
The Party facing the force majeure shall notify the other Party immediately
after its occurrence and shall use reasonable efforts to remedy the situation as
well as to minimize its effects.
12.13 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, but taken together
shall constitute one and the same document.
12.14 Entire Agreement. This Agreement, the Purchase Orders and the other
Statements of Work, documents, Exhibits, and writings attached and/or delivered
pursuant hereto or concurrently herewith, contain and constitute the sole,
complete and entire agreement and understanding of the Parties concerning the
matters contained herein and therein and may not be altered, modified or changed
in any manner except by writing duly executed by the Parties. No statements,
promises or representations have been made by any Party to another, or are
relied upon, and no consideration has been or is offered promised, expected or
held out, other than as stated in this Agreement or the other agreements and
documents referenced herein. No Party is relying on any representations other
than those expressly set forth herein or therein. No conditions precedent to the
effectiveness of this Agreement exist, other than as may be expressly provided
herein.
IN WITNESS WHEREOF, the Parties, by their duly authorized representatives,
have executed this Strategic Alliance Agreement as of the Effective Date.
QUANTUM FUEL SYSTEMS IMPCO TECHNOLOGIES, INC.
TECHNOLOGIES, WORLDWIDE, INC.
By:___________________________________ By:___________________________________
Name:_________________________________ Name:_________________________________
Title:________________________________ Title:________________________________
EXHIBITS
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A TEMPLATE -- STATEMENT OF WORK
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EXHIBIT A
---------
TEMPLATE - STATEMENT OF WORK
