Exhibit 10.15
TECHNOLOGY TRANSFER AND PRODUCT
DISTRIBUTION AGREEMENT
THIS TECHNOLOGY TRANSFER AND PRODUCT DISTRIBUTION AGREEMENT (the
"Agreement"), is made effective this 30th day of September, 2003, and is by and
between Solartech, Inc., a Michigan corporation having it principal place of
business at 00000 Xxxxxxx Xxxxx Xxxxx Xxxxx, Xxxxxxxx Xxxxxxxx, Xxxxxxxx 00000,
("Solartech") and PocketSpec Technologies Inc., a Colorado corporation having it
principal place of business at 0000 Xxxx 0xx Xxxxxx, Xxxxxx, Xxxxxxxx 00000
("PocketSpec").
RECITALS
WHEREAS, Solartech is engaged in design, development and sale of portable
hand held solar meters. Each of the current solar meters can be viewed on
Solartech's web site xxx.xxxxxxxxxx.xxx . (the "Solartech Meters") Solartech
also is in the practice of branding all of its meters with its distinctive xxxx
"Solarmeter(R)", which is a trademark owned by Solartech. Certain non-exclusive
rights to use the said trademark has been granted to PocketSpec by a trademark
license agreement of even effective date herewith.
WHEREAS, PocketSpec is in the business of, among other things,
manufacturing and sales of electronic color analyzer devices, including by way
of example, a tanning industry product line described as a) an handheld color
measurement device that electronically generates a TanTone(TM) number. branded
as Bronz(check). In connection this tanning industry product, PocketSpec is in
development of software packages for marketing to the tanning industry. One of
the software applications contemplated by PocketSpec is the creation of solar
devices that work on the principals and with all or part of the technology
embodied in the Solartech Meters. PocketSpec has requested from Solartech that
it have certain exclusive rights to further develop and use as its own,
differing applications of the technology developed and embodies in the Solartech
Meters. In addition, and due to the close relationship between Solartech and
PocketSpec, contemplated, PocketSpec has also requested that it be granted a
non-exclusive distribution right to buy and sell the Solartech Meters in the
United States of America and Worldwide, Except in the United Kingdom, where
PocketSpec has requested an exclusive distribution agreement.
WHEREAS, Solartech has granted to PocketSpec the exclusive limited use of
the technology embodied in the Solartech Meters, subject to the terms,
conditions and royalty rights of Solartech contained in this Agreement.
WHEREAS, Solartech has granted to PocketSpec the non-exclusive distribution
rights to buy and sell the Solartech Meters in the United States of America and
Worldwide, Except in the United Kingdom, where PocketSpec will the exclusive
right to distribute the Solartech Meters, all subject to the pricing and
purchase terms set forth in this Agreement.
AGREEMENT
NOW, THEREFORE, Solartech and PocketSpec agree as follows:
1. DEFINITIONS As used in this Agreement, the following terms shall have the
meanings indicated:
1.1. "Technology" shall mean all rights owned or otherwise controlled by
Solartech in, to or under technical information, know-how, process,
procedure, composition, device, method, formula, protocol, technique,
software, design, drawing or data relating to the Solartech Meters
which are not covered by Intellectual Property Rights, but which are
necessary for the practice and full utilization of inventions at any
time disclosed or claimed by Solartech. The development rights granted
to PocketSpec in this Agreement relate only to: the Technology
embodied in the Solartech Meters, (excluding the Version 8.0 UVC and
future UVC Versions), but limited to Non-Portable Applications of the
Technology. The rights to distribute, buy and sell granted to
PocketSpec in this Agreement relate to the Solartech Meters which are
Portable Applications. Technology also includes: all tangible and
intangible results and items arising out of, developed in connection
with or constituting the Results of each party's respective
development, including all ideas, Inventions, discoveries, designs,
know-how, notes, memoranda, Documentation, and copyrighted materials,
and all intellectual Property rights constituting, embodied in, or
pertaining to any of the foregoing.
1.2. "Portable Applications" shall mean the current Solartech Meters and
future meters, which are battery powered and complete all functions
within the device(s), but have no ability to export the data generated
from their use, such as the Med/Hr number in the case of the
Solarmeter(R) Version 7.0, other than visual.
1.3. "Non-Portable Applications" shall mean any number of possible
configurations, including: a) the current Solartech Meters and future
meters, which are battery powered and complete all functions within
the device(s) including internal (on-board) display of data, but also
have electronic means to export the data generated from their use,
such as the Med/Hr number in the case of the Solarmeter(R)Version 7.0,
which could be wireless, connected wire, any means of transmission of
the data without wired connection; b) any built device or assembly of
devices the embody all or part of the Technology embodied in the
current Solartech Meters and future meters, using a battery, wired, or
wireless power source, which may all or part of the Technology
functions within the device(s) including internal (on-board) display
of data, but also have electronic means to export the data generated
from their use, such as the Med/Hr number in the case of the
Solarmeter(R)Version 7.0, which could be wireless, connected wire, any
means of transmission of the data without wired connection; c) any
other technology designed and built that gathers data similar to the
Solartech Meters, but relays the data by electronic means to export
the data generated from their use, such as the Med/Hr number in the
case of the Solarmeter(R)Version 7.0, which could be wireless,
connected wire, any means of transmission of the data without wired
connection;
1.4. "Device" means products built by PocketSpec which embody all or parts
of the Technology described above.
1.5. "Effective Date" shall mean the date of transfer by PocketSpec to
Solartech of the PocketSpec's common stock, which is January 30, 2003.
1.6. "Rules of Construction". As used in this Agreement, all terms defined
in the singular shall include the plural, and vice versa, as the
context may require. The words "hereof," "herein," and "hereunder" and
other words of similar import refer to this Agreement as a whole. The
word "including" when used herein is intended to be exclusive and is
not intended to mean "including, without limitation." The headings of
the several sections of this Agreement are intended for convenience of
Reference only and are not intended to be a part of or to affect the
Meaning or interpretation of this Agreement. This Agreement has been
negotiated and drafted by the parties with assistance by counsel and
Shall be fairly interpreted in accordance with its terms and without
any rules of construction relating to which party drafted the
Agreement being applied in favor or against either party.
2. GRANT OF TECHNOLOGY (LICENSE)
2.1. Grant. Subject to the terms and conditions stated herein, Solartech
hereby grants to PocketSpec an exclusive, royalty-bearing right and
license to the Non-Portable Technology, as defined, for use by
PocketSpec in the United States of America and Worldwide with use
including by way of example, but not limited to: manufacture, have
manufactured, use, offer to sell, sell and import and export products
designed by PocketSpec, using the Non-Portable Applications of the
Technology, as Defined.
2.2. Ownership. PocketSpec acknowledges and agrees that Solartech is and
shall remain the sole and exclusive owner of the Technology, subject
to the rights of PocketSpec.
2.2.1. Technology License Fee.
2.2.1.1. Equity in PocketSpec. In consideration for the rights
and licenses granted hereunder have been approved by the
board of directors of PocketSpec, PocketSpec shall deliver
to Solartech 200,000 shares of its restricted common stock
in one certificate of 200,000 shares. The valuation is $.12
per share or $24,000.00, and Solartech agrees that proceeds
received from the sale of the stock will be 100% taxable to
Solartech. Solartech agrees it will not sell more than
50,000 shares every 3 months commencing February 1, 2004,
under SEC Rule 144.
2.2.1.2. Royalty. For the life of this Agreement, PocketSpec
shall pay to Solartech a royalty in the amount of $10.00 for
every Device sold by PocketSpec, with the following
exception: In lieu of Royalty, PocketSpec may purchase from
Solartech the Erythemal Detector used in the Solarmeter(R)
Version 7.0 for $45.00 each, plus shipping. Each of these
purchased will satisfy $10.00 of Royalty obligation. The
said dedectors would be intended to be used in the devices
built by PocketSpec using Solartech's technology.
3. Document and Product Delivery. As part of this Agreement, and to the extent
possible, Solartech shall make available to PocketSpec existing
documentation relating to design and manufacturing of the Solartech Meters
and the following materials as part of this Agreement, except for the
Erythemal Detector componentry :
3.1. One of the Version 5.0 Solarmeter(R)and two of the complete component
parts to the same Version 5.0
3.2. Four of the Version 7.0 Solarmeter(R)and eight of the complete
component parts to the same Version 8.0
3.3. Design Documents. Solartech shall make available documents relating to
hardware and software for Solartech's Device, including without
limitation the following documents: mechanical drawings, xxxx of
materials, source code for all software related to the Solartech
Meters, and schematics, Except for the Erythemal Subassembly Detector
componentry :
3.4. Manufacturing Documents. Solartech shall make available documents
relating to the manufacture of the Solartech Meters to the extent such
documents exist, including without limitation: documents of materials,
suppliers, all phases of manufacturing, Except for the Erythemal
subassembly Detector componentry.
4. Records, Reports and Payment of Royalties. During the term of this
Agreement and for five (5) years thereafter, PocketSpec shall keep complete
and accurate records of the sale of the in sufficient detail to enable the
royalties payable to Solartech under Section 2.2.1.2 of this Agreement to
be determined. Within thirty (30) days after the end of each fiscal
quarter, which end on the last day of January, April, July and October,
during which units using the technology granted under this Agreement have
been sold, PocketSpec shall furnish to Solartech a written report setting
forth the number of such Devices sold in such just-ended fiscal quarter,
together with royalties payable to Solartech pursuant to Section 2.2.1.2.
5. Audit Rights. PocketSpec shall permit Solartech, or representatives of
Solartech which are reasonably acceptable to PocketSpec, at Solartech's
expense, to periodically examine PocketSpec's books, ledgers, and records
during regular business hours for the sole purpose of, and only to the
extent necessary, to verify reports furnished to Solartech pursuant to
Section 2.2.1.2; provided that Solartech delivers to PocketSpec a written
notice of Solartech's intention to conduct an inspection not less than ten
(10) business days before the intended date of such inspection; and
provided further that only one (1) such inspection may be conducted during
any calendar six (6) month period. In the event that amounts due Solartech
are determined to have been underpaid by an amount greater than ten percent
(10%) of the amount actually due, PocketSpec shall pay the cost of such
examination. Any royalty payment not paid on or before the date
corresponding to thirty (30) days after the end of the calendar quarter for
which such royalties are due and payable hereunder shall accrue interest at
a rate equal to one percent (1%) per calendar month or, if less, the
maximum rate permitted under applicable law. Notwithstanding the above,
each report delivered by PocketSpec to Solartech pursuant to Section 14.7,
shall be deemed correct and accurate, and Solartech shall have no right to
inspection records relating thereto, or otherwise challenge the accuracy of
either such report or the records relating thereto, after the third
anniversary of the date of delivery of such report to Solartech.
6. DEVELOPMENT
6.1. Trademark Branding. PocketSpec agrees to place appropriate
Solarmeter(R) trademark on all of the Devices.
7. Ownership and Rights in Technology.
7.1. PocketSpec shall own all right, title and interest in Technology
developed (Devices) using the Technology, subject only to the Royalty
obligations, and it may apply for any patent protection, at its
expense.
7.2. All Technology shall be deemed to be Confidential Information of the
party (or parties) whose employee(s) and consultant(s) developed, made
or otherwise created such Technology and shall be subject to the
restrictions set forth in Article 9. below.
7.3. Use of Third Party Developers. Due to the confidential nature of the
Subject Matter, in the event PocketSpec uses a third party developer
or manufacturer, PocketSpec shall require such third party developer
or manufacturer to execute confidentiality agreements.
7.4. Regulatory Approvals and Testing. PocketSpec shall be responsible for
obtaining necessary regulatory approvals and authorizations for the
Device(s) developed as a result of this Agreement, if needed.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1. Representations, Warranties and Covenants of Solartech. Solartech
Represents, warrants and covenants that: (I) Solartech is the sole and
exclusive owner of all right, title and interest in the Technology;
(ii) the Technology is free and clear of any lien, encumbrance,
security interest and restriction on license; (iii) Solartech has not
previously granted, and will not grant during the term of this
Agreement, any right, license or interest in, to or under the
Technology, or any portion thereof, which is inconsistent with the
rights granted to PocketSpec herein; (iv) to the best of Solartech'
knowledge as of the Effective Date, the Solarmeter(R)does not infringe
any intellectual property right of any third party; (v) there are no
actions, suits, investigations, claims or proceedings pending or
threatened in any way relating to the Technology; (vi) Solartech is a
Corporation, duly organized validly existing and in good standing
under the laws of the State of Michigan; and (vii) the execution,
Delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of Solartech.
8.2. Representations, Warranties and Covenants of PocketSpec. PocketSpec
represents, warrants and covenants that: (i) PocketSpec is a
corporation, duly organized validly existing and in good standing
under the laws of the State of Colorado; and (ii) the execution,
delivery and performance of this Agreement have been duly authorized
by all necessary corporate action on the part of PocketSpec.
9. CONFIDENTIAL INFORMATION
9.1. General. PocketSpec and Solartech shall keep confidential the methods,
processes and techniques and all information, knowledge, know-how,
trade practices, and trade secrets divulged, disclosed, or in any way
communicated between themselves.
9.2. Nondisclosure. Solartech and PocketSpec each agree that all
information contained in documents marked "confidential" which are
received by one party from the other party, and all information
indicated to be Confidential Information in Section 9. (collectively,
"Confidential Information") shall be received in strict confidence,
use only for the express purposes set forth in this Agreement, and not
disclosed by the recipient party (except as required by law or court
order), its agents or employees without the prior written consent of
the other party, unless such Confidential Information: (i) was in the
public domain at the time of disclosure, (ii) later became part of the
public domain through no act or omission of the recipient party, its
employees, agents, or permitted successors or assigns, (iii) was
lawfully disclosed to the recipient party by a third party having no
obligation to the disclosing party, (iv) was already known by the
recipient party at the time of disclosure, (v) was independently
developed by the recipient without use of or access to such
Confidential Information or (vi) is required to be disclosed to a
government agency.
9.3. Protection of Confidential Information. Each party's obligations of
confidentiality, non-use and nondisclosure set forth in this Section
shall be fulfilled by using at least the same degree of care with the
other party's Confidential Information as it uses to protect its own
confidential information. This obligation shall continue in full force
and effect during the term of this Agreement and thereafter for a
period of three (3) years.
10. INFRINGEMENT BY THIRD PARTIES
10.1.General. PocketSpec shall notify Solartech if it learns of any
possible infringement by any third party of the Technology. In the
event that Solartech does not file suit against a substantial
infringer of such patents or other rights granted herein within six
(6) months after receipt of such notification from PocketSpec,
PocketSpec shall have a right, but no obligation, to enforce any
patent licensed hereunder on behalf of itself and Solartech. Solartech
shall provide all reasonable assistance requested by PocketSpec in
connection with any action taken by PocketSpec to enforce the
Technology and Trademark, including without limitation joining legal
action initiated by PocketSpec as a party. In the event that
PocketSpec takes such, PocketSpec shall retain for its own benefit all
recoveries obtained from such action, after reimbursement of Solartech
for its costs and expenses, if any, incurred. Such to the extent
Solartech joins any legal action initiated by PocketSpec, Solartech
and PocketSpec shall split equally all costs, expenses and recoveries.
Cooperation. In any suit or dispute involving an infringer, the
parties shall cooperate fully, and upon the request and at the expense
of the party bringing suit, the other party shall make available to
the party bringing suit, at reasonable times and under appropriate
conditions all relevant personnel, records, papers, information,
samples, specimens, and the like in its possession.
11. INDEMNIFICATION
11.1.General. PocketSpec shall hold harmless and indemnify Solartech, its
officers, employees and agents from and against any claims, demands or
causes of action whatsoever, including without limitation those
arising on account of any injury or death of persons or damage to
property caused by, or arising out of, or resulting from, the exercise
or practice of the rights and licenses granted hereunder by
PocketSpec, its Affiliates or their officers, employees, agents or
representatives, except to the extent that any such claims, demands or
causes of action arise as a result of Solartech's negligence or
misconduct.
11.2.PocketSpec agrees that no product or software bearing the
Solarmeter(R) shall in any way be used to encourage or endorse the
exceeding of manufacture's suggested maximum operating time for
tanning beds. Use of the Solarmeter(R) may be used in PocketSpec's web
sites, its literature and other written documentation and promotional
materials.
12. TERM AND TERMINATION
12.1.Term. The term of this Agreement shall commence on the Effective Date
and continue in full force and effect for a period of ten (10) years,
and shall be extended for an additional ten (10) years if the Devices
are still being built. This Agreement may be terminated by mutual
agreement of the parties at any time.
12.2.Termination of Royalty Payment: Should Solartech no longer wish to
build the Erythemal Detector used in the Solarmeter(R) Version 7.0
that can be bought for $45.00 in lieu of Royalty, the inconvenience
could be significant and consequently, the Royalty payments would be
suspended forever, unless another source for the same is provided at
the $45.00 price in the same quality, within thirty (30) days the
decision to no longer build and provide to PocketSpec the Erythemal
Detector used in the Solarmeter(R) Version 7.0. In the event of such a
decision, all documents and confidential materials that Solartech used
to have the Erythemal Subassembly Detector Componentry made shall be
immediately provided to PocketSpec.
12.3.Accrued Rights. Expiration or termination of this Agreement shall not
release either party from any obligation theretofore accrued.
13. DISTRIBUTION AGREEMENT:
13.1.Solartech has granted to PocketSpec the non-exclusive distribution
rights to buy and sell the Solartech Meters in the United States of
America and Worldwide, Except in the United Kingdom, where PocketSpec
will the exclusive right to distribute the Solartech Meters, all
subject to the following pricing and purchase terms:
13.1.1. PocketSpec may purchase any of the Solartech Meters now shown
on the web site of xxx.xxxxxxxxxx.xxx, or hereafter shown, for a
per device cost of $58.00, plus the actual component costs of
Solartech, which shall be adjusted every six months during the
term of this Agreement, with the first adjustment on August 1,
2003, and on the 1st day of every sixth month thereafter.
Solartech shall notify PocketSpec of any cost adjustments within
ten (10) days after each adjustment date or no adjustment will be
possible until the next six month period. The current component
costs for each of the Solartech products are 5.0 $18.96; 6.0
$36.22; 6.5 $43.80; 7.0 $43.80; 8.0 $46.67.
13.1.2. PocketSpec shall pay for shipping costs to Solartech.
13.1.3. PocketSpec shall be responsible for any sales taxes.
13.1.4. PocketSpec is an authorized reseller for any warranty
coverage.
13.1.5. PocketSpec may deposit money with Solartech if it wishes, in
$500 denominations, and then instruct Solartech who and where to
ship the products to. In this event, Solartech shall xxxx the
cost for the product , plus shipping from the deposit amount and
fax a statement to 303.393.1700 with the shipping information.
PocketSpec shall issue a check to Solartech for the billing
amount in order to maintain the deposit amount.
13.1.6. Solartech shall periodically provide and update its retail and
wholesale price list to PocketSpec.
13.1.7. PocketSpec may promote in any way its distribution agreement.
13.1.8. Solartech shall provide to PocketSpec its customer list when
PocketSpec has its software and non-portable devices for sale.
14. MISCELLANEOUS
14.1.Governing Law. This Agreement shall be governed by, and construed and
interpreted, in accordance with the laws of the State of Michigan
without reference to principles of conflicts of laws.
14.2.Compliance with Laws. Each party shall perform this Agreement in
compliance with all applicable federal, national, state and local
laws, rules and regulations and shall indemnify the other party and
its customers for loss or damage sustained because of such party's
noncompliance with any such law, rule or regulation. Each party shall
furnish to the other party any information requested or required by
that party during the term of this Agreement or any extensions hereof
to enable that party to comply with the requirements of any U.S. or
foreign federal, state, and/or governmental agency.
14.3.Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES OF THE OTHER
PARTY ARISING OUT OF THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY.
14.4.Force Majeure. Neither party shall be held responsible for any delay
or failure in performance hereunder caused by strikes, embargoes,
unexpected government requirements, civil or military authorities,
acts of God, earthquake, or by the public enemy or other causes
reasonably beyond such party's control and without such party's fault
or negligence.
14.5.Independent Contractors. The relationship of Solartech and PocketSpec
established by this Agreement is that of independent contractors.
Nothing in this Agreement shall be constructed to create any other
relationship between Solartech and PocketSpec. Neither party shall
have any right, power or authority to assume, create or incur any
expense, liability or obligation, express or implied, on behalf of the
other.
14.6.Assignment. This Agreement shall inure to the benefit of the parties
successor and assigns. Assignment does not relieve assignor its
respective obligations, without written agreement of the non assigning
party.
14.7.Notices. Any required notices hereunder shall be given in writing by
certified mail or overnight express delivery service (such as FedEx)
at the address of each party at the above addresses, or to such other
address or as either party may substitute by written notice. Notice
shall be deemed served when delivered or, if delivery is not
accomplished by reason or some fault of the addressee, when tendered.
14.8.Modification; Waiver. This Agreement may not be altered, amended or
modified in any way except by a writing signed by both parties. The
failure of a party to enforce any provision of the Agreement shall not
be construed to be a waiver of the right of such party to thereafter
enforce that provision or any other provision or right.
14.9.Severability. If any provision of any provision of this Agreement
shall be found by a court to be void, invalid or unenforceable, the
same shall be reformed to comply with applicable law or stricken if
not so conformable, so as not to affect the validity or enforceability
of this Agreement.
14.10. Entire Agreement. The parties hereto acknowledge that this Agreement
sets forth the entire Agreement and understanding of the parties
hereto as to the subject matter hereof, and supersedes all prior
discussions, agreements, and writings in respect hereto.
14.11. Facsimile Signatures: This Agreement shall be binding if signed by
one part and sent to the other party by facsimile.
IN WITNESS WHEREOF, each party hereto has had this Agreement executed by
there duly authorized representative.
Solartech, Inc., a Michigan corporation
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, its President
PocketSpec Technologies Inc.
By: /s/ F. Xxxxxxx Xxxxxx
---------------------------
F. Xxxxxxx Xxxxxx, its President
