BETA TEST SITE AGREEMENT
This
Agreement (“Agreement”) is made this ____ day of July,
2006,
by and between Axial Vector Engine Corporation (“Axial”) and Dynamics Engines
Limited (collectively
referred to as “DEL”).
(Axial
and DEL
may be
referred to collectively as the “Parties”
and
individually as a “Party”.)
RECITALS
WHEREAS,
Axial is a U.S. publicly traded company and desires to explore a relationship
with DEL whereby a DEL facility shall serve as a Beta Test Site for the Axial
Flux Generator (AFG); and
WHEREAS,
in the normal course of business that the Pparties
propose to undertake, Axial and DEL may from time to time require access to
each
others business sensitive information and other Confidential Information, as
such term is defined herein, in connection with any such transactions of Axial
with DEL; and
WHEREAS,
the Parties desire to address their respective rights and obligations under
this
Agreement;
WHEREAS,
Axial and GBPC are willing to provide access to each others business contacts
and other confidential information, provided that both parties, including their
respective agents, officers, affiliates, employees and representatives
(collectively “Representatives”) agree to restrict disclosure and use of all
such Confidential Information according to the terms of this
Agreement.
AGREEMENT
NOW
THEREFORE, in consideration of the promises and mutual covenants contained
herein, it is agreed as follows:
The
DEL
facility will serve as a Beta Test Site for the AFG, which testing will run
for
a period of not less than three months,
unless
this Agreement is earlier terminated.
Axial
will be responsible,
at
Axial’s sole cost and expense,
for
delivering the AFG to the DEL facility.
At
the
end of the test period, Axial will be responsible,
at
Axial’s sole cost and expense,
for
removing the AFG and returning it to the lab for analysis.
DEL
will
be responsible for providing the fuel to run the AFG for the duration of the
testing period, in return for which DEL will have the benefit of the power
generation at no additional cost. DEL
shall
use its reasonable best efforts to provide such fuel but shall have no liability
whatsoever for the failure to so provide such fuel.
An
Oversight Group or Work Team (the “Team”)
will be
appointed consisting of members from Axial and DEL. The Team will, in large
part, establish their mandate for approval by DEL and Axial. Typically the
Team
shall be responsible for a number of activities such as establishing proper
and
safe operation of the Beta Site and Gen Set; ensure safe and effective interface
between the Beta Site and the DEL generation site; provide operator control
over
the Gen Set in cases such as emergencies or planned shut
downs
-
standard operation procedures; provide appropriate operator training and
briefing; ensure that appropriate procedures and protocols are established
and
enforced; Team sign-offs as appropriate; and ensure a smooth interface and
flow
of information between the two Team members from DEL and Axial.
Axial
will be responsible for all external costs associated with connection of the
AFG
to DEL’s distribution system via an exiting step up transformer and the fuel
line connection, and for ensuring the AFG functions according to DEL’s norms and
standards of operation (attached hereto as Annex A.)
Axial
will be responsible for training DEL personnel on the basic requirements for
operation of the AFG.
Axial
will ensure that the AFG conforms to DEL’s standards of operation, performance,
and safety to be defined by DEL.
In the
event that DEL
determines, in its sole discretion, that the AFG fails to comply with such
standards, DEL
shall
have the right to shut down the AFG, suspend or remove fuel from the AFG, or
take any other actions that DEL
deems
necessary.
Del
will
be responsible to obtain any licenses, permits or other governmental required
steps to operation of the AFG.
DEL
will be
responsible to provide only routine maintenance on the AFG. Any maintenance
other than routine maintenance will be to the account of Axial. DEL
shall
not be liable to Axial for the actions or inactions of its personnel relating
to
any type of work or maintenance performed by such personnel on the
AFG.
DEL
shall
use its reasonable best efforts to assure that tThe
DEL
provided facility will be ready to accept the AFG no later than December 1
,
2006;
provided, however, that DEL
shall
have no liability to Axial for the failure to accept the AFG on such
date.
CONFIDENTIALITY
AND NON-CIRCUMVENTION:
| 1. |
“Confidential
Information” means all information relating to each Pparty’s
trade secrets, pending or granted patent applications, invention
disclosures, drawings, documents, specifications, models, plans and
all
other technical product, business and/or financial information which
either Pparty
holds confidential and/or proprietary in nature. The term “Confidential
Information” excludes any information that (i) is already in the public
domain and/or otherwise known to the Pparty
or
its Representatives
prior to disclosure by the opposite Pparty
hereto; (ii) becomes generally available to the public other than
as a
result of disclosure by the Pparty
or
its Representatives;
or
(iii) becomes lawfully available to the Pparty
or
its Representatives
on
a non-confidential basis from a source (other than the opposite
|
Party
hereto) that is not bound by a confidential relationship concerning the
Confidential Information,
or (iv)
is
or was
developed by or for a Party independently of and without reference to any
information disclosed by the opposite Party.
| 2. |
During
the term of this Agreement and for one
(1)
year after the expiration or termination of this Agreement (the
“Confidential Period”), tThe
Pparties
will not at any time, or in any fashion, form or manner, either directly
or indirectly, divulge, disclose or communicate to any person, firm
or
corporation in any manner whatsoever, any information of any kind,
nature
or description concerning those items in paragraph
1.
|
| 3. |
During
the
term of this Agreement, and
after the term of this Agreementthe
Parties agree not
to take, without the written consent of the other Pparty,
any notes, reports, calculations, plans, models, trade secrets, research
data, product specifications, or blueprints belonging to the other
Pparty
or in its possession. Upon termination of this Agreement, each
Pparty
shall
within ten
(10)
days
deliver all the materials described in this paragraph to the other
Pparty.
|
| 4. |
This
non-disclosure and confidentiality covenant shall not affect Axial
or DEL
or their assigns from making normal-course disclosures pursuant to
SEC
regulations or from issuing press releases or from providing such
information as may be necessary to carry out the terms and conditions
of
this Agreement and the obligations and duties contemplated thereunder.
|
| 5. |
During
the Confidential Period, tThe
Pparties
agree to hold, keep and maintain all Confidential Information disclosed
by
the opposite Pparty
hereto as strictly confidential and agree,
and shall cause or direct their Representatives to
agree, to:
(a) hold in confidence and not deliver, show, summarize or otherwise
make
available the Confidential Information to any person (except to the
extent
that they may have a need to know the Confidential Information in
connection with any transaction or as required by law or court order),
without the prior written consent of the opposite Pparty
hereto; (b) not to use the Confidential Information in any fashion,
except
solely for the proposes of completing a review of the other Pparty’s
information in connection with such
Party'’s
obligations hereundery'any
proposed transaction of the Pparties;
(c) exercise due care to avoid unauthorized publication or disclosure
of
the Confidential Information by either Pparty,
its Representatives, and/or GBPC;
(d) upon the request of either Pparty,
to return all written Confidential Information, if any, provided
to the
other Pparty
and/or its Representatives,
and not to retain any copies or other reproductions, summaries, or
abstracts thereof. Each Pparty
hereto shall take all reasonable measures to protect the confidentiality
and avoid the unauthorized use, disclosure, publication, or dissemination
of details of any business transaction contemplated by the Pparties
or any Confidential Information
acquired.
|
| 6. |
The
Pparties
acknowledge that a breach of this Agreement would immediately result
in
irreparable harm to the other Pparty
for which the Pparties
acknowledge that it would be extremely difficult (if not impossible)
to
ascertain the damages to the breaching Pparty,
and that there would be no adequate remedy at law. Therefore, the
Pparties
hereto agree that, in the event of any breach or threatened breach
or
violation of the terms of this Agreement, each respective Pparty
shall have the right, in addition to any other rights or remedies
available at law or in equity (and not in lieu of, including damages),
to
obtain specific performance and injunctive relief enjoining the other
Pparty
in any court of competent jurisdiction. If a Pparty
or
any of its Representatives
is
required in any civil or criminal legal proceeding or any regulatory
proceeding or pursuant to any form of legal process to disclose any
part
of the Confidential Information, the Pparty
shall, if possible, give the other Pparty
prompt notice thereof so that Pparty
may seek an appropriate protective order or waive in writing compliance
with the provisions of the Agreement.
|
| 7. |
IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OPPOSITE PARTY FOR INDIRECT,
INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT
OF THIS
SECTION ENTITLED “CONFIDENTIALITY AND NON-CIRCUMVENTION” IN AN AMOUNT IN
EXCESS OF TWO HUNDRED FIFTY THOUSAND DOLLARS
($250,000.00).
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Each
party hereto covenants with the other party that during the term of this
Agreement, neither they nor their Representatives will deal directly with any
of
the other party’s business contacts or clients in trade without the other
party’s prior knowledge and written consent. In the event that either party
hereto breaches this provision, the opposite party shall be entitled to
immediate compensation from the breaching party in an amount equal to their
customary fee in business transactions of a similar nature. For purposes of
this
Agreement, each party’s respective business contacts or clients in trade shall
be deemed Confidential Information and shall be further defined an any third
party entity with who the party has a verifiable business relationship with,
or
is cultivating such relationship with, in anticipation of deriving a financial
benefit.
| 1. |
Each
party hereto covenants to the other party that neither they nor their
Representatives will in any way circumvent, avoid, bypass, or in
any way
harm or diminish the economic interest of the opposite party hereto
(or
make, assist, authorize, or permit any effort to do so), either directly
or indirectly, in connection with any business transactions contemplated
by the parties as it relates to the provisions of any transactions
in
which either party hereto will, or can reasonably be expected to
derive
financial benefit.
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GOVERNING
LAW:
Any
disputes under or relating to this Agreement shall be resolved by final and
binding arbitration under the laws of NevadaState
of
Nevada and under the commercial rules of The American Arbitration
Association;
provided that either Pparty
hereto shall nevertheless have the right to institute a lawsuit to pursue
interim, equitable remedies. In the event any Pparty
hereto institutes any lawsuit, arbitration, or other proceeding to construe
or
enforce any agreement, the prevailing Pparty
will
be entitled to recover its costs and expenses, including reasonable attorney
fees and costs, incurred in doing so.
This
Agreement shall be governed by the laws of Nevada
State of
Nevada applicable to contracts entered into, and to be fully performed, in
said
state.
This
Agreement may be executed in counterparts, which when taken together, shall
constitute on and the same instrument. Faxed signatures shall be deemed
effective as originals for all purposes.
If,
in
any judicial proceeding, a court shall refuse to enforce all the provisions
of
this agreement, any unenforceable provision shall be deemed eliminated from
the
agreement for the purpose of such proceeding as is necessary to permit the
remainder of the agreement to be enforced in such proceeding.
SAFETY
STANDARDS:
Visitors
to the DEL site, including employees of Axial, their agents and members of
the
Team, will (a)
follow
all safety standards set by DEL, (b)
give
appropriate notice of visitation to the site for observation, testing or other
required business practices, (c)
and
accept
DEL’s prohibitions on visiting the site, if problems unrelated to the Beta Test
Site requiring Axial’s involvement are occurring..
NON-DISRUPTION:
Performance
under this Agreement will be undertaken in such a way as to minimize and avoid
any disruption of DEL’s other operation at the Beta Test Site.
PRESS
RELEASES AND OTHER PUBLIC ANNOUNCEMENTS:
Axial
and
DEL will only make future public disclosure of the Beta Test Site operation
and
results after concurrence of the other Pparty
to
this Agreement and acceptance of the disclosure, so long as any objections
are
reasonable and justifiable. Axial and DEL will be sent a draft copy for approval
of any public statement that mentions DEL or Axial by the other Pparty.
VISA
AND
CUSTOM REQUIREMENTS:
This
Agreement is subject to compliance to any visa and/or customs requirements
involving the AFG and/or personnel involved in the Beta Test Site.
SPECIFIC
PERFORMANCE:
BINDING
EFFECT:
Except
as
otherwise expressly provided in this Agreement, this Agreement shall be binding
upon and shall inure to the benefit of the Pparties
to
this Agreement and their heirs, personal representatives, successors and
assigns. Each Pparty
to
this Agreement covenants that he will execute such reasonable documents and
perform such reasonable acts as may be required from time to time to carry
out
the terms and conditions of this Agreement.
NOTICES:
All
notices provided for by this Agreement shall be made in writing by delivering
personally or by mailing of such notice to the Pparties
hereon, registered or certified mail, postage prepaid, at the following
addresses or at such other addresses designated in writing by one Pparty
to
the other:
DEL:
Racewell,
Ltd.
00
Xxxx
Xxxxxx
Xx
Xxxx
Xxx
Xxxxxxx
Axial:
One
World
Trade Center
000
XX
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx,
XX 00000
and
Xxxxxxx
X. Xxxxxx
Attorney
at Law
0000
XX
00xx
Xxxxxx
Xxxxxxxx,
XX 00000
ENTIRE
AGREEMENT:
This
Agreement constitutes the entire agreement and supersedes any prior agreements
or understandings between the Pparties
hereto and no amendment, alteration or waiver of this Agreement shall be valid
or binding unless made in writing and signed by all Pparties
hereto.
TERMINATION:
This
Agreement may be terminated by either Party for convenience at any time upon
thirty (30) days prior written notice of such termination to the other Party.
Upon the termination of this Agreement, Axial shall remove the AFG from the
DEL
facility
within ten (10) business days following the effective date of the
termination.
INDEMNIFICATION:
Axial
shall and does hereby expressly agree to indemnify and hold harmless
DEL,
its
officers, directors, shareholders, employees, parent and affiliates against
any
and all suits, actions, judgments, costs (including, without limitation, all
court costs and attorneys’ fees), losses, damages, or claims of whatever nature
arising out of or related to (a) the operation of the AFG, (b) any actions
brought against DEL
by the
agents, employees or subcontractors of Axial while on the DEL
site,
(c) the acts or omissions of Axial, its agents, employees or subcontractors,
including, but not limited to, any injuries to or deaths of persons or any
damage to property or equipment, while on the DEL
site.
Axial further agrees to defend any and all such actions in any court or in
arbitration.
RELATIONSHIP:
The
Parties acknowledge and intend that their relationship hereunder shall be that
of independent contractors. Neither Party nor its employees or agents shall
have, nor represent themselves as having, any authority to approve or accept
any
proposal on behalf of the opposite Party, or make any promise, representation,
contract or other commitment binding upon the opposite Party.
COMPLIANCE
WITH LAWS:
Axial
shall comply with (a) all laws, statutes, regulations, and public ordinances
governing its actions hereunder and (b) the standards of conduct required by
the
provisions of the U.S. Foreign Corrupt Practices Act of 1977 (U.S. Public Law
95-213) and any amendments thereto, and shall indemnify, defend and hold
DEL
harmless
from any and all liability, damage, cost, fine, penalty, fee and expense arising
from Axial’s failure to do so.
PERMITS:
Axial
shall obtain, pay for and maintain in effect, all permits, licenses or other
approvals required under applicable laws to be obtained by Axial to perform
its
obligations hereunder.
INSURANCE:
During
the time that the AFG shall be located on the DEL
site,
Axial shall maintain in full force and effect, commercial general liability
insurance covering its actions hereunder and shall name DEL
as an
additional insured party on such insurance. Such insurance (i) shall
include coverage for any accident resulting in bodily injury to or death of
any
person and consequential damages arising therefrom; (ii) shall include
comprehensive property damage insurance; (iii) shall be in an amount of not
less than $2,000,000.00 per occurrence; and (iv) shall be issued by an
insurance company or companies with a Best’s rating of no less than A: VII or
equivalent. Axial shall furnish to DEL,
upon
request, certificates of insurance evidencing that the same is in full force
and
effect.
NO
WAIVER:
No
waiver
of any provision of this agreement shall be deemed, or shall constitute, a
waiver of any other provision, whether or not similar, nor shall any waiver
constitute a continuing waiver. No waiver shall be binding unless executed
in
writing by the Pparty
making the waiver.
IN
WITNESS WHEREOF, the Pparties
have caused this Agreement to be executed as of the date first written
above.
| AXIAL VECTOR ENGINE CORPORATION |
DYNAMIC
ENGINES LIMITED
|
|
/s/
Xxxxxxx
Xxxxxxx
|
/s/
Xxxxx
Xxxxx
|
|
By:
Xxxxxxx Xxxxxxx
|
By:
Xxxxx Xxxxx
|
|
Its:
President
|
Its:
Director
|
