Exhibit 10.24
H Power/TechMatics Agreement
AGREEMENT
This Agreement, made and entered into this 15th day of February, 1995 by
and between H Power Corp., a corporation organized and existing under the laws
of the State of Delaware, United States of America, having its principal place
of business at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
called "H Power") and TechMatics Inc., a corporation organized and existing
under the laws of the State of Delaware, United States of America, having its
principal place of business at 000 Xxxxx Xxxxxxx, Xxxxxxxxx, Xxx Xxxx 00000
(hereinafter called "TechMatics").
Witnesseth:
RECITALS
WHEREAS, H Power had cultivated initial interest in a fuel cell system
that can provide electric power to operate laptop computers for extended periods
with several major laptop computer manufacturers and with IBM in particular; and
WHEREAS, H Power requires advice and assistance in developing, designing
and fabricating a fuel cell system that is capable of providing the electric
power to operate a laptop computer and meets the specifications and requirements
as provided by IBM ("Laptop System"); and
WHEREAS, H Power and TechMatics have reviewed the specifications as
provided by IBM; and
WHEREAS, the Parties desire to enter into this Agreement to set forth the
terms and conditions under which TechMatics has agreed to cooperate with H Power
in developing the required Laptop System and such other products and systems
that the Parties may hereafter agree to mutually develop; and
WHEREAS, the Parties also desire to enter into this Agreement to establish
an arrangement whereby TechMatics will manufacture for H Power fuel cell systems
that are capable of providing the electric power to operate laptop computers,
cellular telephones and video cameras and such other products and systems to
which the Parties may hereafter agree;
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth below, H Power and TechMatics agree as
follows:
1. Services. TechMatics shall cooperate with H Power to develop, design,
integrate, and test a fuel cell system that is capable of providing the electric
power to operate a laptop computer and, in particular, meets the specifications
and requirements as provided by IBM. TechMatics' efforts in this regard are
hereinafter referred to as "Services." In the event that the parties hereafter
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H Power/TechMatics Agreement
agree to mutually develop other products and systems, then TechMatics' efforts
with relation to those products and systems shall be deemed "Services."
2. Compensation for Services and Marketing. H Power shall pay TechMatics
fees based upon an approved hourly rate for its Services and marketing efforts
performed pursuant to this Agreement by TechMatics' employees. H Power shall
reimburse TechMatics for expenses incurred on H Power's behalf and approved by H
Power.
3. Payments, Invoicing and Statements of Services Performed. H Power shall
pay the amounts agreed to herein within thirty (30) days after receipt of
invoices which shall be furnished to H Power by TechMatics on a biweekly basis.
Said invoices shall detail the number of hours during the prior two weeks for
which Services were rendered as well as a description of the Services performed.
4. Confidential Information. The Parties hereby acknowledge that during
the performance of this Agreement one of the Parties may learn or receive
confidential information from the other Party. Each of the Parties hereby
confirms that all such information relating to the business of the other Party
will be kept confidential, except to the extent that such information is
required to be divulged to the other Party's clerical or support staff or
associates in order to enable the other Party to perform its obligations
hereunder. The Parties shall take appropriate measures to insure that their
staffs are competent and that they do not breach this Paragraph 4.
5. Independent Contractor. TechMatics is an independent contractor and
neither TechMatics nor TechMatics' staff is, or shall be deemed to be, employed
by H Power. H Power is hereby contracting with TechMatics for the Services
described herein. TechMatics is not required to perform the Services during a
fixed hourly or daily time. TechMatics hereby confirms to H Power that H Power
shall not be required to furnish or provide any training to TechMatics to enable
TechMatics to perform the Services hereunder. The Services shall be performed by
TechMatics or TechMatics' staff, and H Power shall not be required to hire,
supervise or pay any assistants to help TechMatics to perform the Services under
this Agreement. TechMatics shall not be required to devote TechMatics' full time
nor the full time of TechMatics' staff to the performance of the Services
required hereunder. It is acknowledged that TechMatics offers services to the
general public. Except to the extent that TechMatics' work must be performed on
or with H Power's computers or H Power's existing software, all materials used
in providing the Services shall be provided by TechMatics. H Power shall not
provide any insurance coverage of any kind for TechMatics or TechMatics' staff.
H Power shall not withhold any amount that would normally be withheld from an
employee's pay.
6. Termination of Services. TechMatics' Services hereunder cannot be
terminated or canceled by H Power short of completion of the Services agreed
upon, except for TechMatics' failure to perform its obligations as required
hereunder. Conversely, subject to H Power's obligation
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H Power/TechMatics Agreement
to make full and timely payment(s) for TechMatics' Services hereunder,
TechMatics shall be obligated to complete the Services agreed upon.
7. Rights to Patens and Technologies. H Power shall have all technology
and patent rights with respect to all designs, materials and technologies
developed by H Power under this Agreement. TechMatics shall have all technology
and patent rights with respect to all designs, materials and technologies
developed by TechMatics under this Agreement. As of this date the Parties have
designated specific ownership rights as set forth in Exhibit A appended hereto.
TechMatics hereby grants H Power a world-wide exclusive paid-up license to make
and use all designs, materials and technologies developed under this Agreement
and owned by TechMatics. Notwithstanding the foregoing sentence, TechMatics may
use the designs, materials and technologies developed by it under this Agreement
for products other than fuel cell systems, in which event H Power shall be
entitled to a royalty to be determined. On the other hand, if H Power uses the
designs, materials and technologies developed by TechMatics under this Agreement
for systems and products not manufactured by TechMatics then TechMatics shall be
entitled to a royalty to be determined. In the event that TechMatics fails to
file an application for a patent covering TechMatics' technology that H Power
deems essential, then H Power, at its own expense, shall have the option to
pursue such filing in the name of TechMatics. If such be the case, TechMatics
shall cooperate with H Power by providing H Power the necessary information for
such filing. H Power grants to TechMatics the license to utilize its
technologies for the manufacture of systems as set forth in Paragraph 8
hereinbelow.
8. Manufacture of Specific Systems. TechMatics shall design, develop and
establish a high rate manufacturing facility to manufacture, for and on behalf
of H Power, Laptop Systems, fuel cell systems for cellular telephones and
commercial video cameras, and such other products and systems to which the
Parties may hereafter agree. Subject to TechMatics' ability to deliver systems
of quality on a reasonable basis to H Power, TechMatics shall have exclusive
manufacturing rights in the United States for the aforementioned systems. The
Parties contemplate that the initial facility shall be situated in Long Island,
New York. Manufacturing profits earned by TechMatics shall be determined
hereafter by the Parties hereto. Loans and investments, if any, made by H Power
to finance the establishment and operation of the plant facility shall be a
consideration in determining the manufacturing profit earned by TechMatics. In
the event H Power arranges with others to establish manufacturing facilities to
produce the aforementioned systems outside the United States, then, as
compensation for its efforts in the design, development and establishment of the
initial manufacturing facility, TechMatics shall be entitled to royalties (to be
then determined by the Parties) from said foreign manufacturing facilities.
9. Marketing of Laptop Systems. TechMatics shall provide personnel to
market the Laptop System on behalf of H Power. Said personnel are hereby
authorized by H Power to act on behalf of H Power for said purpose. Marketing
shall include direct contact with H Power's customer at all levels and, if
mutually agreed by the Parties hereto, participation in industry trade shows and
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H Power/TechMatics Agreement
conferences. All Sales shall be in the name and for the benefit of H Power. Ho
Power shall provide TechMatics with technical sales support.
10. Parties' Representatives. Unless notified in writing to the contrary,
Xxxxxxx Xxxxxxxxx shall represent TechMatics and Xxxxxx Xxxxxxx shall represent
H Power during the performance of this Agreement with respect to the development
and design effort as defined herein.
11. Disputes. Any disputes that arise between the Parties with respect to
the performance of this Agreement shall be submitted to binding arbitration by
the American Arbitration Association, to be determined and resolved by said
association under its rules and procedures in effect at the time of submission
and the Parties hereby agree to share equally in the costs of said arbitration.
The final arbitration decision shall be enforceable through the courts of the
State of New Jersey. In the event that this arbitration provision is held
unenforceable by any court of competent jurisdiction, then this Agreement shall
be as binding and enforceable as if this Paragraph 11 were not a part hereof.
12. Taxes. Any and all taxes, except income taxes, imposed or assessed by
reason of this Agreement or its performance, including but not limited to sales
or use taxes, shall be paid by H Power. TechMatics shall be responsible for an
employee's share of any taxes or penalties assessed by reason of any claims that
TechMatics is an employee of H Power.
13. Liability. TechMatics warrants to H Power that the documentation,
analysis, data, programs and services to be delivered or rendered hereunder,
will be of the kind and quality designated and will be performed by qualified
personnel. In no event shall either Party be liable for special or consequential
damages, either by agreement or tort, whether or not the possibility of such
damages has been disclosed to the other Party in advance or could have been
reasonably foreseen by the other Party. Except for intentional malfeasance,
gross negligence or manufacturing defects, H Power shall indemnify and hold
TechMatics harmless from all claims by third parties arising out of the use of
any system in which TechMatics did not participate in the development.
14. Complete Agreement. This Agreement and any Schedules hereto constitute
the entire Agreement between Parties concerning the subject matter hereof. No
other agreements, representations, warranties or other matters, oral or written,
shall be deemed to bind the Parties hereto with respect to the subject matter
hereof. This Agreement may only be modified in writing signed by both Parties
hereto.
15. Applicable Law. TechMatics shall comply with all applicable laws in
performing Services but shall be held harmless for violation of any governmental
procurement regulation to which it may be subject but to which reference is not
made in Exhibit A. This Agreement shall be construed in accordance with the laws
of the State of New Jersey.
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H Power/TechMatics Agreement
16. Scope of Agreement. If the scope of any of the provisions of this
Agreement is too broad in any respect whatsoever to permit enforcement to its
full extent, then such provisions shall be enforced to the maximum extent
permitted by law, and the Parties hereto consent and agree that such scope may
be judicially modified accordingly and that the whole of such provisions of this
Agreement shall not thereby fail, but that the scope of such provisions shall be
curtailed only to the extent necessary to conform to law.
17. Additional Services. Additional Services may be added to this
Agreement but only if in writing signed by both the Parties hereto.
18. Notices. All notices, requests, and demands given to or made upon the
Parties shall be in writing and shall be mailed properly addressed, postage
prepaid, registered or certified, or personally delivered to either Party. Such
notice shall be deemed received by the close of business on the date shown on
the certified or registered mail receipt, or when it is actually received,
whichever is sooner.
(i) Notices to H Power should be sent to:
Xxxxxx Xxxxxxx, President
H Power Corp.
00 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(ii) Notices to TechMatics should be sent to:
Xxxxxxx Xxxxxxxxx, President
TechMatics Inc.
000 Xxxxx Xxxxxxx
Xxxxxxxxx, XX 00000
19. Waiver. No term or provision hereof shall be deemed waived and no
breach excused unless such waiver or consent shall be in writing and signed by
the Party claimed to have waived or consented.
20. Assignment. This Agreement may not be assigned by either Party without
the prior written consent of the other Party. Except for the prohibition on
assignment contained in the preceding sentence, this Agreement shall be binding
upon and inure to the benefit of the heirs, successors and assigns of the
Parties hereto.
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H Power/TechMatics Agreement
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first above written.
H Power Corp. TechMatics, Inc.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx, President Xxxxxxx Xxxxxxxxx, President
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H Power/TechMatics Agreement
Exhibit A
Technology and Patent Rights
Technology and Patent Rights Ownership
--------------------------------------
Fuel Cell H Power
Cartridge design for metal hydrides TechMatics
Pressure regulator for metal hydrides TechMatics
Bellows design for chemical hydrides TechMatics
Valve design for hydrogen generator TechMatics
Motherboard Plenum Packaging Design TechMatics
Fan design and its assembly TechMatics
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