Exhibit 10.4
CONFIDENTIALITY and MANUFACTURING AGREEMENT
This Confidentiality Agreement ("Agreement") is made effective retroactively to
October 1, 1997 by and between W.T. Sports, LTD, a NY corporation, FUA Safety
Equipment, AG, a Swedish corporation, and Electronik Apparatabau, GmbH, a German
Corporation, jointly referred to as ("Owner") and Tech Laboratories, Inc., a NJ
Corporation referred to as ("Recipient").
1. Confidential Information.
Owner proposes to disclose certain of its confidential and proprietary
information (the "Confidential Information") to Recipient. Confidential
Information shall include all data, materials, products, technology, computer
programs, specifications, manuals, business plans, software, marketing plans,
business plans, financial information, and other information disclosed or
submitted, orally, in writing, or by any other media, to Recipient by Owner.
Owner shall disclose so much of its Confidential Information as shall reasonably
be required for Recipient to manufacture the Owner's Products for marketing
pursuant to a certain Amended Joint Marketing Agreement executed simultaneously
herewith between Owner and Tech Logistics, Inc. (a wholly owned subsidiary of
Recipient).
2. Recipient's Obligations.
A. Recipient agrees that the Confidential Information is to be considered
confidential and proprietary to Owner and Recipient shall hold the same in
confidence, shall not use the Confidential Information other than for the
purposes of its business with Owner, and shall disclose it only to its officers,
directors, or employees with a specific need to know. Recipient will not
disclose, publish or otherwise reveal any of the Confidential Information
received from Owner to any other party whatsoever except with the specific prior
written authorization of Owner.
B. Confidential Information furnished in tangible form shall not be duplicated
by Recipient except for purposes of this Agreement. Upon the request of Owner,
Recipient shall return all Confidential Information received in written or
tangible form, including copies, or reproductions or other media containing such
Confidential Information, within ten (10) days of such request. At Recipient's
option, any documents or other media developed by the Recipient containing
Confidential Information may be destroyed by Recipient. Recipient shall provide
a written certificate to Owner regarding destruction within ten (10) days
thereafter.
C. If this Agreement or any subsequent Agreement between the parties or
extension hereof is terminated for any reason by either party, then and in that
event the Owner shall retain ownership to the Products, as well as to any and
all modifications, improvements and extensions of the Products or the related
technology whether such was created, implemented, designed, or paid for, by
Owner or Recipient. Upon such Termination, Recipient shall pay to Owner, Owner's
reasonable expenses in re-designing castings, if any, related to such
modifications, improvements and extensions of the Products or the related
technology.
3. Manufacturing.
Recipient shall have the exclusive rights to manufacture the Owner's Products
(as defined in the Amended Joint Marketing Agreement) for sale by Tech Logistics
pursuant to the said Agreement. Recipient shall pay to Owner monthly in arrears,
a sum equal to 5% of Recipient's Gross Profit on Sensors manufactured by Tech
Laboratories, Inc./Tech Logistics, Inc.
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
4. Term.
The obligations of Recipient herein shall be effective in perpetuity from the
date Owner last discloses any Confidential Information to Recipient pursuant to
this Agreement. Further, the obligation not to disclose shall not be affected by
bankruptcy, receivership, assignment, attachment or seizure procedures, whether
initiated by or against Recipient, nor by the rejection of any agreement between
Owner and Recipient, by a trustee of Recipient in bankruptcy, or by the
Recipient as a debtor-in-possession or the equivalent of any of the foregoing
under local law.
5. Other Information.
Recipient shall have no obligation under this Agreement with respect to
Confidential Information which is or becomes publicly available as a result of
public disclosure by Owner. Any developments of the Products, or modifications,
changes, deletions, or improvements of or upon the Products by Recipient its'
agents servants, or employees, shall belong to Owner and shall be protected by
Recipient hereunder as though same had been made by Owner.
6. License.
The Manufacturing rights of Recipient hereunder shall be an exclusive License to
Recipient to manufacture the Products as hereinabove provided (the License). It
is understood and agreed that neither party solicits any change in the
organization, business practice, service or products of the other party, and
that the disclosure of Confidential Information shall not be construed as
evidencing any intent by a party to purchase any products or services of the
other party except as provided herein, nor as an encouragement to expend funds
in development or research efforts. Confidential Information may pertain to
prospective or unannounced products. Recipient agrees not to use any
Confidential Information or the License as a basis upon which to develop or have
a third party develop a competing or similar product.
7. No Publicity.
Recipient agrees not to disclose its participation in this undertaking, the
existence or terms and conditions of the Agreement without the prior written
consent of Owner which consent shall not be unreasonably withheld.
8. Governing Law and Equitable Relief.
This Agreement shall be governed and construed in accordance with the laws of
the United States and the State of New Jersey and the parties hereto consent to
the exclusive jurisdiction of the state courts and U.S. federal courts located
there for any dispute arising out of this Agreement. Recipient agrees that in
the event of any breach or threatened breach by Recipient, Owner may obtain, in
addition to any other legal remedies which may be available, such equitable
relief as may be necessary to protect Owner against any such breach or
threatened breach.
9. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements
on the subject matter hereof. This Agreement may be modified only by a further
writing that is duly executed by both parties.
10. No Assignment.
Recipient may not assign this Agreement or any interest herein without Owner's
express prior written consent.
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
11. Severability.
If any term of this Agreement is held by a court of competent jurisdiction to be
invalid or unenforceable, then this Agreement, including all of the remaining
terms, will remain in full force and effect as if such invalid or unenforceable
term had never been included.
12. Notices.
Any notice required by this Agreement or given in connection with it, shall be
in writing and shall be given to the appropriate party by personal delivery or
by certified mail, postage prepaid, or recognized overnight delivery services.
If to Owner:
Xxxxxx Xxxxxxxxx, President, W.T. Sports, Ltd.
XX Xxx 00
Xxxxxxxxxx, Xxx Xxxx 00000
If to Recipient:
Tech Laboratories, Inc., Attention: Xxxxxxx X. Xxxxxxxx, President
000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, XX 00000
13. No Implied Waiver.
Either party's failure to insist in any one or more instances upon strict
performance by the other party of any of the terms of this Agreement shall not
be construed as a waiver of any continuing or subsequent failure to perform or
delay in performance of any term hereof.
14. Headings.
Headings used in this Agreement are provided for convenience only and shall not
be used to construe meaning or intent.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
W.T. Sports, Ltd. Tech Laboratories, Inc.
By: /s/ Xxxxxx Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------- -----------------------------
Xxxxxx Xxxxxxxxx, President Xxxxxxx X. Xxxxxxxx, President
FUA-Safety Equipment, AG Electronik Apparatabau, GmbH
By: /s/ Xxxxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------- -----------------------------
Xxxxxxx Xxxxxxxxx, President Xxxxxxx Xxxxxxxxx, President
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
