This Value Added Reseller Agreement ("AGREEMENT") dated May 14, 2004.
Between
Alternate Energy Corporation ("AEC") a Canadian corporation having its head
office at 0000 Xxxxx Xxxxxxx Xx. Xxxx # 000, Xxxxxxxxxx, Xxxxxxx, Xxxxxx
and
Astris Energi Inc. ("ASTRIS"), an Ontario corporation having its head office at
0000-0 Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx
Whereas:
1. ASTRIS is a world leader in the development and practice of Alkaline
Fuel Cell (AFC) technology with more than twenty years of
progressive experience, and produces a power generator (the "ASTRIS
AFC Power Generator") and related products, and
2. AEC has a hydrogen production technology (the "AEC Hydrogen
Generator"), and
3. AEC intends to act as a Value Added Reseller for ASTRIS AFC Power
Generator products, and
4. AEC and ASTRIS intend to build complete units that integrate both
AEC and ASTRIS technologies in a single form factor after ASTRIS can
deliver production of its ASTRIS AFC Power Generators in reasonable
quantities.
Therefore:
1. Cooperation. AEC and ASTRIS (the "Parties") intend to cooperate in
creating a single integrated unit based on technologies of both AEC
and ASTRIS. Such cooperation shall include, but not be limited to:
a. During the term of this agreement, AEC will:
i. Act as a Value Added Reseller for ASTRIS AFC Power
Generators, and
ii. Ensure that all products that include any part of ASTRIS
technology are appropriately identified with ASTRIS logo
and/or ASTRIS trademarks in accordance with the prior
written approval of ASTRIS, and
iii. Agree to submit to ASTRIS, in advance of any proposed
use, samples of its use of the ASTRIS logo and/or ASTRIS
trademarks for review in accordance with Section 7
below.
iv. Attend necessary training at ASTRIS facility.
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b. During the term of this agreement, ASTRIS will:
i. Provide current specification sheet(s) and publicity
material of relevant ASTRIS technology to AEC, and
ii. Sell to AEC at current market prices and current
delivery times ASTRIS AFC Power Generator(s), and
iii. Provide training to AEC representatives onsite at ASTRIS
head office, and
iv. As required by AEC, provide onsite and/or remote
support.
2. Compensation/Costs. The Parties agree as follows regarding the
compensation and costs related to this agreement:
a. AEC will be responsible for:
i. Costs related to purchase of ASTRIS AFC Power Generator
units, and
ii. Costs related to shipping of ASTRIS AFC Power Generator
units from the Mississauga, Ontario head office of
ASTRIS, and
iii. Direct costs of training or support provided by ASTRIS,
and
iv. Indirect costs of training or support incurred by ASTRIS
at cost, including but not limited to travel, lodging,
meals and sundry, and
v. All costs related to integration of AEC and ASTRIS
technologies; and
vi. All taxes payable on all such amounts.
All costs shall be pre-approved in writing by AEC which
approval shall not be unreasonably withheld or unduly delayed.
b. Terms of payment will be consistent with ASTRIS' current
market terms at the time of order of any products or services,
which are subject to change in ASTRIS' sole discretion at any
time, and presently require:
i. 40% deposit at time of order, and
ii. Complete payment at time of delivery.
c. Terms of delivery will be consistent with ASTRIS' current
market terms at the time of order of any products or services
and presently require a delivery time of 6 months from time of
order accompanied by deposit.
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3. Intellectual Property. It is the intention of the Parties that no
intellectual property shall be created as a result of this
agreement. In the event the Parties engage in activities that create
any intellectual property, unless otherwise set out in writing
between the Parties, the Parties agree as follows:
a. all intellectual property created or established as a result
of this agreement that relates primarily to the ASTRIS AFC
Power Generators shall be owned by, and be the exclusive
property of, ASTRIS alone;
b. all intellectual property created or established as a result
of this agreement that relates primarily to the AEC Hydrogen
Generators shall be owned by, and be the exclusive property
of, AEC alone; and
c. all other intellectual property created or established as a
result of this agreement shall be owned by the creator (ASTRIS
or AEC) of said intellectual property;
Each Party hereto agrees at all times, before and after the
termination of this agreement, to assist, and shall cause its
officers, directors, employees, representatives, agents and advisors
at all times to assist, upon request, a Party who has gained
ownership of any intellectual property in accordance with the
foregoing, or its designate, at the requesting Party's expense, to
secure the requesting Party's rights in such intellectual property
and any copyrights, patents, trademarks or other intellectual
property rights relating thereto in any and all countries. The
obligations of the Parties set out in this section shall survive
termination of this agreement indefinitely.
4. Terms/Conditions. The Parties agree as follows regarding the term of
this agreement and conditions associated with this agreement:
a. The term of this agreement is one year from its effective
date.
b. This agreement shall be extended for an additional one year
term unless otherwise terminated by either Party in accordance
with Section 11.
5. Confidentiality and Restricted Use of Confidential Information- AEC.
For the purposes of this agreement, "Confidential Information"
includes, without limitation, information concerning the customers
and accounts of the Parties, the purchase and sale prices or lists,
methods, techniques, processes and trade secrets of the Parties,
discoveries, concepts and ideas including, without limitation, the
nature and results of research and development activities, formulas,
inventions, technology, "know-how", designs, drawings and
specifications, and the marketing and selling strategies of the
Parties, in any medium whatsoever. AEC shall treat all Confidential
Information furnished, or to be furnished, to AEC in any medium
whatsoever in accordance with the provisions of this agreement, and
to take, or abstain from taking, the other actions as set forth in
this paragraph. The Confidential Information shall be used by AEC
solely for the purpose of performing AEC's obligations under this
agreement and absolutely for no other purpose whatsoever, and will
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be kept strictly confidential by AEC and its officers, directors,
employees, representatives, agents and advisors; provided that (i)
any of such Confidential Information may be disclosed to the AEC's
officers, directors, employees, representatives, agents and advisors
who need to know such Confidential Information for the purpose of
performing AEC's obligations under this agreement, (ii) such
Confidential Information may be otherwise disclosed to the extent
that ASTRIS may expressly consent in writing prior to such
disclosure, and (iii) such Confidential Information may be disclosed
to the extent required by law. Upon any termination of this
agreement in accordance with its terms, AEC and its officers,
directors, employees, representatives, agents and advisors shall
immediately return to ASTRIS all material containing or reflecting
the Confidential Information --- disclosed by ASTRIS in all mediums
and immediately cease any use of such Confidential Information,
ASTRIS logo and/or ASTRIS trademarks. The obligations set out in
this paragraph shall survive indefinitely.
6. Confidentiality and Restricted Use of Confidential Information-
ASTRIS. ASTRIS shall treat all Confidential Information furnished,
or to be furnished, to ASTRIS in any medium whatsoever in accordance
with the provisions of this agreement, and to take, or abstain from
taking, the other actions as set forth in this paragraph. The
Confidential Information shall be used by ASTRIS solely for the
purpose of performing ASTRIS's obligations under this agreement and
absolutely for no other purpose whatsoever, and will be kept
strictly confidential by ASTRIS and its officers, directors,
employees, representatives, agents and advisors; provided that (i)
any of such Confidential Information may be disclosed to ASTRIS's
officers, directors, employees, representatives, agents and advisors
who need to know such Confidential Information for the purpose of
performing ASTRIS's obligations under this agreement, (ii) such
Confidential Information may be otherwise disclosed to the extent
that AEC may expressly consent in writing prior to such disclosure,
and (iii) such Confidential Information may be disclosed to the
extent required by law. Upon any termination of this agreement in
accordance with its terms, ASTRIS and its officers, directors,
employees, representatives, agents and advisors shall immediately
return to AEC all --- material containing or reflecting the
Confidential Information disclosed by AEC in all mediums and
immediately cease any use of such Confidential Information, AEC logo
and/or AEC trademarks.. The obligations set out in this paragraph
shall survive indefinitely.
7. Trademarks.
a. Ownership. All trademarks, service marks, trade names, logos
or other words or symbols identifying the products or ASTRIS's
business (the "Marks") are and will remain the exclusive
property of ASTRIS. AEC will not take any action that
jeopardizes ASTRIS's proprietary rights or acquire any right
in the Marks, except the limited use rights specified in
paragraph 1a. above. AEC will not register, directly or
indirectly, any trademark, service xxxx, trade name,
copyright, company name or other proprietary or commercial
right which is identical or confusingly similar to the Marks
or which constitute translations thereof.
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b. Use. AEC will use the Marks exclusively in accordance with
paragraph 1a. above. All advertisements and promotional
materials will (i) clearly identify ASTRIS as the owner of the
Marks, (ii) conform to ASTRIS's then-current trademark and
logo guidelines and (iii) otherwise comply with any local
notice or marking requirement contemplated under the laws of
the territory in which any products are sold. Before
publishing or disseminating any advertisement or promotional
materials bearing a Xxxx, AEC will deliver a sample of the
advertisement or promotional materials to ASTRIS for prior
approval. If ASTRIS notifies AEC that the use of the Xxxx is
inappropriate, in ASTRIS's sole discretion, AEC will not
publish or otherwise disseminate the advertisement or
promotional material until they have been modified to ASTRIS's
satisfaction in writing.
8. Remedies. The Parties hereby agree that in the event of a breach of
the foregoing Sections 5 through 7 inclusive, the non-breaching
Party shall have the right to seek a court order to prevent any
further breach, including the ability to obtain injunctive relief
without the necessity of posting a bond. Each Party shall indemnify
and hold harmless the other from and against any and all loss,
liability, cost, attorneys' fees or expense based upon, arising out
of or otherwise in respect of any breach or violation of this
agreement.
9. Warranty and Disclaimer. ASTRIS gives no warranty with respect to
the workmanship, merchantability or fitness for a particular purpose
of the ASTRIS power generators where same have been incorporated
into any product produced by AEC. ALL WARRANTIES, CONDITIONS,
REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE
PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR
ORAL OR WRITTEN STATEMENTS BY ASTRIS OR OTHERWISE (INCLUDING, BUT
NOT LIMITED TO ANY WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR
FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN, EXCLUDED AND
DISCLAIMED. Except for payment obligations, a Party will not be
liable for any failure or delay in performing an obligation that is
due to causes beyond its reasonable control, so long as the party
gives prompt notice to the other party and makes all reasonable
efforts to perform. IN NO EVENT WILL A PARTY BE LIABLE FOR ANY
SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO, LOST
PROFIT.
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10. Public Announcements. The parties hereto agree that neither they nor
any of their respective subsidiaries, officers, directors, employees
or agents shall disclose to any third party or publicly announce the
proposed Agreement until such time as the parties hereto agree in
writing to make such disclosure or announcement or unless otherwise
required by law or regulation. Any public announcement concerning
the proposed Agreement shall be approved in advance by appropriate
officers of the parties hereto.
11. Termination. This agreement may be terminated at any time upon
delivery of not less than 30-day written notification of either of
the parties hereto. Sections 3, 5, 6, 7, 8 and 9 shall survive any
termination of this agreement. Upon any termination of this
agreement, AEC shall immediately pay ASTRIS all due and outstanding
amounts, and AEC will, at ASTRIS's option, destroy or deliver to
ASTRIS or its designee all items within AEC's possession or control
that contain any Confidential Information or bear a Xxxx and shall
cease using all Marks.
12. U.S. Export Restrictions. AEC acknowledges that the products
supplied by ASTRIS hereunder and all related technical information,
documents and materials may be subject to export controls under the
U.S. Export Administration Regulations. Where such products are
subject to such controls, AEC will (i) comply strictly with all
legal requirements established under these controls, and (ii)
cooperate fully with ASTRIS in any official or unofficial audit or
inspection that relates to these controls, and (iii) not export or
re-export any such products without the appropriate United States
and foreign governmental licenses or approval.
13. Status of Parties. The Parties acknowledge that they are independent
contracting parties, and this agreement shall not constitute any
such party as an agent, representative, partner, co-venturer,
employee, employer or franchisee of the other party, except as
expressly provided for herein. Neither party shall assume or create
any obligation or responsibility whatsoever on behalf of, or in the
name of, the other party except as otherwise provided for herein.
14. Assignment and Binding Effect. This agreement shall be binding upon
and enure to the benefit of the Parties and their respective
successors and permitted assigns, if any, as the case may be. This
agreement may not be assigned by either Party without the prior
written consent of all other parties.
15. Applicable Law. This agreement shall be governed by and interpreted
in accordance with the laws of the Province of Ontario and the laws
of Canada applicable therein. The Parties do hereby irrevocably
attorn to the jurisdiction of the courts of the Province of Ontario.
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16. Notice. Any notice or other communication required or permitted to
be given hereunder shall be in writing and, if mailed by prepaid
first-class mail at any time other than during a general
discontinuance of postal service due to strike, lockout or
otherwise, shall be sent to the other Party at the last known
address of the other Party and be deemed to have been received five
(5) business days after the post-marked date thereof, or if
telecopied, emailed or delivered by another form of recorded
communication, shall be deemed to have been received on the next
business day following dispatch and acknowledgement of receipt by
the recipient's telecopier machine or other form of recorded
communication, or if delivered by hand shall be deemed to have been
received at the time it is delivered. If either Party changes its
address during the term of this agreement, it shall immediately
notify the other Party of such change of address in the foregoing
manner.
The above constitutes the full and complete agreement between AEC and ASTRIS.
This agreement is subject to the approvals of the respective Boards of Directors
of the Parties if such is required.
Agreed and accepted this __14th_ day of _May_____, 2004 by:
Astris Energi Incorporated Alternate Energy Corporation
per: __/s/ Xxxx X. Nor__________ per: _/s/ Xxxxxx Froats____________
Xxxx X. Nor - President and CEO Xxxxxx Xxxxxx- Chairman and CEO
Astris Energi Inc. Alternate Energy Corp.
