EXHIBIT 10.71
JOINT DEVELOPMENT AGREEMENT
BETWEEN
ELECTROSOURCE, INC.
AND
BLACK & XXXXXX (U.S.) INC.
JOINT DEVELOPMENT
ARTICLE I - DEFINITIONS
1.1 "BATTERY" 1
1.2 "BATTERY TECHNOLOGY 1
1.3 "EPRI TECHNOLOGY" 1
1.4 "MOWER" 1
1.5 "OUTDOOR PRODUCTS" 1
1.6 "POWER TOOL" 2
1.7 "PROJECT" 2
ARTICLE II - JOINT DEVELOPMENT 2
2.1 Scope of PROJECT 2
2.2 Prototypes 2
2.3 Production Volumes 2
ARTICLE III - EXCLUSIVITY; CONFIDENTIALITY AND
OTHER INTELLECTUAL PROPERTY 2
3.1 Duration 2
3.2 Exclusivity Extinguished 3
3.3 Intellectual Property 3
ARTICLE IV - TERM, TERMINATION AND SURVIVAL OF RIGHTS
4.1 Term 3
4.2 Termination 3
4.3 Survival of Rights 3
ARTICLE V - PUBLICITY 3
ARTICLE VI - NOTICES 4
ARTICLE VII - REPRESENTATIONS AND WARRANTIES 4
ARTICLE VIII - GENERAL 4
8.1 Vicarious Performance 4
8.2 Assignment 4
8.3 Applicable Law 5
8.4 Force Majeure 5
8.5 No Obligation to Third Parties 5
8.6 Supplemental Documentation 5
8.7 Negation of Implications 5
8.8 Parties Are Independent Contractors 5
8.9. Sublicenses 6
8.10 Integration, Modification, No Waiver 6
APPENDICES
Appendix A - Specifications
Appendix B - Test Plan
Appendix C - Intellectual Property
JOINT DEVELOPMENT AGREEMENT
Effective ________________ ("AGREEMENT DATE") ELECTROSOURCE,
INC., having an office at 0000-X Xxxxxxxx Xxxxx, Xxxxxx, Xxxxx
00000-0000 ("XXXX") and BLACK & XXXXXX (U.S.) INC., having an
office at 000 X. Xxxxx Xxxx, Xxxxxx, Xxxxxxxx 00000 ("B&D") agree
as follows:
ARTICLE I - DEFINITIONS
Terms in this Agreement (other than the names of parites and
article headings) which are set forth entirely in uppercase
letters shall have the meanings attributed to such terms below
and in Appendix "C." The following definitions are for the
purposes of this Agreement, only:
1.1 "BATTERY" means an XXXX rechargeable lead-acid battery
for use on a MOWER or other POWER TOOL.
1.2 "BATTERY TECHNOLOGY" means all technology of any kind,
and all intellectual property rights therein, covering or
embodied in BATTERIES or the manufacture, use or sale of
BATTERIES.
1.3 "EPRI TECHNOLOGY" means all technology of any kind that
may have been owned or controlled by the Electric Power Research
Institute ("EPRI") and its successors, and all intellectual
property rights therein, covering or embodied in BATTERIES or the
manufacture, use or sale of BATTERIES.
1.4 "MOWER" means a B&D cordless electric walk-behind
lawnmower having a power rating in the range of from 400 xxxxx to
5000 xxxxx and designed to be powered by an on-board rechargeable
battery, together with the entire battery charger system and all
mechanical and electrical interfaces with the battery, which
battery, charger system and interfaces may exist apart, or be
removable, from the mower deck.
1.5 "OUTDOOR PRODUCTS" means products for use outdoors,
including without limitation walk-behind mowers, string trimmers,
hedge trimmers, lights, shredders, blowers and stand-alone power
units comprising at least a battery, electric motor and output
shaft, having a power rating of 7HP or less, for connection to a
working implement.
1.6 "POWER TOOLS" means any OUTDOOR PRODUCT (excluding
riding mowers) and any other powered tool or appliance and any
accessory therefor (i) that is used for cutting, including but
not limited to construction material, food or vegetation;
drilling; hammering; planing, measuring; soldering; grinding;
sanding; sawing; spraying; fastening; polishing; screwdriving;
nutdriving; compressing; vacuum cleaning; grass cutting; hedge
trimming; pruning; mowing; blowing; cooking, hearing, gluing; can
opening; knife sharpening; ironing; food preparation including
but not limited to juicing, chopping and mixing; or lighting; and
(ii) that can be, in use, portable, bench top, countertop,
stationary (ground or floor-supported) or wheeled.
1.7 "PROJECT" means the development project between B&D and
XXXX to jointly develop commercially acceptable BATTERIES and
POWER TOOLS, beginning with MOWERS.
ARTICLE II - JOINT DEVELOPMENT
2.1 Scope of PROJECT. Initially, B&D and XXXX desire to
develop commercially acceptable BATTERIES and MOWERS, where the
BATTERIES meet the Specifications attached as Appendix "A" and
made a part hereof, and pass the Test Plan attached as Appendix
"B" and made a part hereof, as such Specifications and Test Plan
may be modified from time to time. The parties will negotiate
their respective roles and obligations and timetables. It is
also the intent of the parties to explore additional
opportunities to apply XXXX technology to other B&D POWER TOOLS,
including additional types of OUTDOOR PRODUCTS.
2.2 Prototypes. It is the intent of the parties for B&D to
purchase prototype BATTERIES from XXXX meeting the requirements
of Appendices "A" and "B", on mutually agreeable terms inclduing
without limitation quantity, price, qualify and delivery. Aside
from such prototype BATTERIES, each party will bear its own
expenses inclurred during the PROJECT.
2.3 Production Volumes. In the event that it can be
demonstrated to B&D's sole satisfaction that XXXX can
successfully manufacture production volumes of BATTERIES meeting
B&D's cost, delivery and quality requirements, it is the intent
of the parties that B&D and XXXX will negotiate an agreement for
the purchase, under mutually acceptable terms including without
limitation price, delivery and quality, of production volumes of
BATTERIES from XXXX for use on MOWERS.
ARTICLE III - EXCLUSIVITY;
CONFIDENTIALITY AND OTHER INTELLECTUAL PROPERTY
3.1 Duration. Beginning with the AGREEMENT DATE and
continuing for the duration of this Agreement and any extension
hereof, and any agreement to purchase production volumes of
BATTERIES pursuant to Section 2.3, XXXX will not sell BATTERIES
or license BATTERY TECHNOLOGY to third parties in the field of
POWER TOOLS.
3.2 Exclusivity Extinguished. In the event this Agreement
expires or is terminated, and no purchase agreement of production
volumes made pursuant to Section 2.3 above, exists, ELSI's
obligations under Section 3.1 above shall be extinguished,
subject to B&D's patent, trademark, copyright and trade dress
rights, under which no license is granted herein.
3.3 Intellectucal Property. Confidentiality and other
intellectual property topics are addressed in Appendix "C" to
this Agreement, attached hereto and made a part hereof.
ARTICLE IV - TERM, TERMINATION
AND SURVIVAL OF RIGHTS
4.1 Term - The term of this Agreement shall be for three
(3) years from the AGREEMENT DATE unless sooner terminated
pursuant to Paragraph 4.2, below.
4.2 Termination - Either party may terminate this Agreement
at any time for any reason by giving one (1) month's prior
written notice to the other party.
4.3 Survival of Rights - The following rights and
obligations shall survive the termination or expiration of this
Agreement for any reason:
4.31 B&D's obligation to pay XXXX for prototype
BATTERIES, if any, purchased from XXXX pursuant to Section 2.2 of
this Agreement.
4.32 The parties' respective rights and obligations
regarding INVENTIONS and MUTUAL CONFIDENTIALLY pursuant to
Appendix "C" to this Agreement, and exclusivity pursuant to
Article III of this Agreement.
ARTICLE V - PUBLICITY
The parties may independently, or if mutually agreeable,
jointly, issue press releases and other publicity upon the
complete execution of this Joint Development Agreement concerning
this Agreement's content, except that XXXX may not disclose any
information regarding quantities or pricing of MOWERS or
BATTERIES except as required by law or regulation. Each party
warrants that all such publicity it issues will be accurate.
Except for permissible publicity under this Article V, nothing in
this Agreement shall be construed as conferring upon a party a
right to use in advertising, other publicity, or otherwise, any
trademark or tradename of the other party's.
ARTICLE VI - NOTICES
6.1 The parties shall serve notice to one another to their
respective addresses set forth above, as follows:
President, for XXXX, and
Product Manager for MOWERS, for B&D, with a copy to
Patent Department (Outdoor Products) - TW199
6.2 All notices shall be sent via FAX with a confirmation
copy by overnight courier or U.S. overnight Express Mail. The
notices shall be effective as of the date of transmission. Each
party may change its address for notice by written notice to the
other party.
ARTICLE VII - REPRESENTATIONS AND WARRANTIES
7.1 Each of the parties represents and warrants that as of
the AGREEMENT DATE it is solvent; that no petitions for relief
under the U.S. Bakruptcy Code or any similar Federal or State
statute has been filed against it; that no application for the
appointment of a receiver for or the making of a general
assignment for the benefit of creditors by it has been made; and
that it is contemplating no such application or assignment.
7.2 Each of the parties represents and warrants that it has
not entered into and will not enter into any agreement with any
third party in conflict with the provisions of this Agreement.
7.3 XXXX represents and warrants that it has the full,
entire and exclusive right and power to enter into this
Agreement, to grant licenses under all BATTERY TECHNOLOGY,
including without limitation EPRI TECHNOLOGY, and to make, use
and sell BATTERIES.
ARTICLE VIII - GENERAL
8.1 Vicarious Performance. The parties may perform any of
their duties and obligations herein through their respective
parents, wholly-owned subsidiaries and wholly-owned subsidiaries
and affiliates of either. Performance by a party's parent,
wholly-owned subsidiary or wholly-owned subsidiary or parent of
either shall be deemed to be performance by such party. Any
rights granted in this Agreement to the parties shall extend to
their respective parents, wholly-owned subsidiaries and indirect
wholly-owned subsidiaries or either, and its successors and
assigns.
8.2 Assignment. B&D may freely assign this Agreement to
any of its parents, wholly-owned subsidiaries and subsidiaries
and affiliates of either. This Agreement may be freely assigned
by a party to any entity which acquires all or a portion of the
business of such party pertaining to the subject matter of this
Agreement. This Agreement may otherwise not be assigned by a
party without the prior written consent of the other party, which
consent shall not unreasonably be withheld.
8.3 Applicable Law. This Agreement shall be construed,
interpreted and applied in accordance with the applicable laws of
the State of Maryland.
8.4 Force Majeure. No party hereto shall be considered to
be in breach of its obligations hereunder if it shall fail to
fulfill the same for reasons arising wholly or principally from
acts of God, war, riot, civil commotion, tempest, flood, fire,
strike, lockout or any other circumstances beyond the control of
the party or sublicensee which would, but for the provisions of
this Paragraph 8.4, be in default of its obligation.
8.5 No Obligation to Third Parties. The execution and
delivery of this Agreement shall not be deemed to confer any
rights upon, nor obligate any of the parties hereto, to any
person or entity other than each other, unless specifically
described in this Agreement.
8.6 Supplemental Documentation. Each party agrees to
execute and deliver any and all further agreements, documents or
instruments necessary to effectuate this Agreement and the
transactions contemplated hereby or reasonably requested by the
other party to perfect or evidence such party's rights hereunder.
8.7 Negation of Implications. Nothing herein shall be
construed as:
(a) Creating any obligation of either of the parties to
introduce or maintain any produce on the market;
(b) Subject to the mutual confidentiality provisions of
this Agreement, preventing a party from making, using or selling
any product except to the extent that such product is covered by
the valid trademarks, copyrights or issued patents of the other
party; or
(c) Except for publicity under Article V of this Agreement,
conferring a right to use in advertising, publicity, or otherwise
any trademark or tradename of the party from which a license is
received under this Agreement
8.8 Parties Are Independent Contractors. Each party is
acting as an independent contractor and not as an agent for,
partner of, or joint venture with, the other party.
8.9 Sublicenses. No non-exclusive licensee established
under any provision of this Agreement may grant sublicenses to
any other entity, except to its customers as implied licensees,
to its partents or wholly-owned subsidiaries or wholly-owned
direct or indirect subsidiaries of either, and to any entity
which acquires all or a portion of its business pertaining to the
subject matter of this Agreement. Exclusive licensees
established under this Agreement may freely grant sublicenses.
8.10 Integration, Modification, No Waiver. This document
contains the entire and only agreement between the parties and
supersedes all preexisting agreements between them respecting its
subject matter. No modification or amendment of this Agreement
may be made except by a written agreement signed by all of the
parties to this Agreement then existing. Any of the terms or
provisions this Agreement may be waived, but only in writing by
the party which such waiver is sought to be enforced. The
failure to any party hereto to insist upon strict performance of
any of the provisions of this Agreement will not consitute a
waiver of any right of such party hereunder.
The parties hereto, intending to be legally bound hereby, have
respectively executed this Agreement in duplicate as of the
AGREEMENT DATE.
BLACK & XXXXXX (U.S.) INC. ELECTROSOURCE INCORPORATED
BY: /S/ BY: /S/
NAME: Xxxxxxx X. Xxxxxx NAME: Xxxxxxx X. Xxxxxxx
TITLE: Vice President and TITLE: CEO & President
Assistant Secretary
DATE: March 8, 1996 DATE: March 11, 1996
