MEMORANDUM OF UNDERSTANDING
THIS MEMORANDUM OF UNDERSTANDING (MOU) is made as of this ____ day of December,
2004, by and between AirGATE Technologies Inc., ("AGTI"), a Texas Corporation,
with offices at 000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx, Xxxxx 00000, and XXXXXX
Chemical Inc., ("XXXXXX") a New Jersey corporation, with offices at 00000 Xxxx
Xxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000.
BACKGROUND
AGTI is engaged in the development and sale of Wireless and Radio Frequency
Identification (RFID) technology, including software, hardware and professional
services. XXXXXX Chemical is engaged in the development and sale of commercial
adhesive and resin based products including oilfield products including resin
and coated sand manufacturing ("proppant"). Based on AGTI's experience in
wireless and RFID technology and services, XXXXXX desires to retain the services
of AGTI to render such services on the terms and conditions set forth below.
WHEREAS, AGTI has agreed to develop and test in phases detailed herein, a ***
via the use of *** and other applicable technologies, for use with Xxxxxx'x
products, including but not limited to oilfield products that are marketed for
use in a *** (the "Work Product"); and
IN CONSIDERATION of the mutual benefits to the respective parties, the parties
agree as follows:
1.0 SCOPE OF WORK
AGTI and XXXXXX shall work together, as appropriate, on the Work Product as
mutually agreed upon, including, but not limited to the following specific Work
Product activities:
1.1. Phase I -- Proof of Concept -- Milestones & Deliverables
XXXXXX and AGI will jointly agree upon the milestones and due
dates for Phase I, which will include the following:
- Creation of work plan
- ***
- ***
- ***
- ***
- ***
- ***
- ***
- ***
- ***
- ***
- ***
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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1.2. Phase II -- Milestones and Deliverables XXXXXX and AGI will
jointly agree upon the milestones and due dates for Phase II,
which will include the following:
- ***
- ***
- ***
- Lab testing of Prototypes
- Field Testing of Prototypes
1.3. Phase III -- Milestones and Deliverables XXXXXX and AGI will jointly
agree upon the milestones and due dates for Phase III, which will
include the following:
- Commercialization of Prototypes
1.4. Prior to the beginning of each phase, XXXXXX and AGTI will jointly
determine and agree upon the milestones and due dates, and, in the case
of Phase II and Phase III, the projected budget for each phase and the
due dates for final payment of the remaining balances.
1.5. The parties agree that the completion due dates for Phase I is six (6)
months from the agreed beginning of Phase I.
2.0 DUTIES
AGTI agrees to perform all services defined in the Scope of Work. Phase II and
Phase III will not begin until authorized by XXXXXX. Phase I will begin upon the
authorization of a purchase order from XXXXXX and receipt of payment.
AGTI agrees that at the close of business on the 4th Friday of each month, AGTI
will fax a signed weekly status report to XXXXXX or to such other
representatives as XXXXXX may designate, outlining the following items: list of
work items for the month then ending, deliverables and accomplishments for each
of the work items and an itemized list costs applied against the budget.
3.0 COMPENSATION
BUDGET. Unless otherwise agreed as part of part of the budget for each Phase,
the parties agree that XXXXXX shall bear the development cost for the Work
Product. Prior to the beginning of each Phase the parties shall jointly
establish the reasonable budget for that Phase and the timelines and milestones
within each Phase. As part of such discussions the parties will agree to what
extent and under what terms AGTI will contribute to or control the development
costs in exchange for a royalty of between 2% to 5% to be paid by XXXXXX on the
revenues XXXXXX realizes from the commercialization of the Work Product during
the first five years after commercialization. In the negotiations concerning the
amount of and terms for royalties the parties shall consider both AGTI's
contribution to the budget for those Phases and the scope of the work AGTI
performs under those Phases. If AGTI contributes 50% to the costs of Phases II
and III then the target royalty rate that the parties shall negotiate shall be
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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5%. If AGTI's contribution to the costs of Phases II and III is less than 50%
then the target royalty rate shall be equal to 2% plus the percentage of AGTI's
contribution times .06. Unless otherwise agreed, XXXXXX will contribute 100% of
the agreed budget in cash payable 50% at the beginning of the Phase and the
remainder payable by monthly installments over the term of the Phase, calculated
by dividing the remaining budget for the Phase by the number of months scheduled
to complete the Phase. It shall be AGTI's responsibility to complete the Scope
of Work within each Phase within the budget. AGTI shall be entitled to no
additional compensation unless agreed to in advance in writing by XXXXXX.
No royalty shall be payable by XXXXXX unless the parties proceed jointly to
Phase II and Phase III and the Work Product is successfully commercialized. If
AGTI successfully completes Phase I and XXXXXX fails to include AGTI in Phases
II and III, but nevertheless achieves successful commercialization of the Work
Product through other means or sources, then at the end of the first year
following successful commercialization XXXXXX shall pay AGTI an opportunity fee
of $180,000, to compensate AGTI for the loss of a royalty opportunity.
The parties agree that the budget for Phase I shall be $300,000, payable
$150,000 within 30 days after the date hereof and the remainder to be paid in 5
equal installments of $30,000 each on the last day of each month commencing with
month 2 of Phase I. AGTI shall prepare and maintain good and accurate records
demonstrating its actual costs for performing the Scope of Work in Phase I,
including but not limited to time sheets or logs, receipts, invoices, purchase
orders, vouchers and other books and records. Supplies, materials, rentals,
travel expenses and subcontracted employees shall be charged to the budget at
AGTI's actual out of pocket costs. AGTI labor shall be charged to the budget at
the hourly rates listed in Exhibit A. Overhead, such as telephone, postage,
electricity, accounting and clerical help and the general use of computers and
office machines shall be included in AGTI's hourly rate. AGTI shall give XXXXXX
an accounting of its total costs at the end of Phase I and access to all
supporting books and records. In the event that AGTI's total cost of performing
the Scope of Work for Phase I is less than $250,000 then the budget for Phase I
shall be adjusted so the total amount payable to AGTI is equal to AGTI's costs,
plus 20%, and any excess paid by Xxxxxx shall be refunded by Xxxxxx. There shall
be no adjustments for any increase in costs above $250,000.
4.0 TERM.
The term of this MOU shall commence on the date hereof and expire upon the
termination of this MOU in accordance with Section 5.
5.0 TERMINATION.
This MOU may be terminated as follows:
(a) By Xxxxxx upon thirty (30) days written notice;
(b) By either party upon the delivery to the other party (the "Breaching
Party") of written notice to such effect if (i) the Breaching Party has
breached any of its material obligations under this MOU and (ii) the
breach has not been cured within thirty (30) days after the receipt by
the Breaching Party of written notice to such effect;
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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(c) By Xxxxxx upon delivery of written notice to such effect if (i) AGTI
has failed to achieve any material mutually agreed milestone by the
agreed date, but with due allowance for unavoidable and unforeseen
delays and (ii) AGTI has not cured such failure within thirty (30) days
after its receipt of written notice of such failure;
(d) By either party upon the delivery to the other party (the "Bankrupt
Party") of written notice to such effect if (i) the Bankrupt Party has
filed, or consented by answer or otherwise to the filing against the
Bankrupt Party of, a petition for relief or reorganization or
liquidation (in connection with a bankruptcy or insolvency proceeding)
or taken advantage of any bankruptcy or insolvency law of any
jurisdiction, (ii) the Bankrupt Party has made a general assignment for
the benefit of its creditors, or consented to the appointment of a
custodian, receiver, trustee or other officer with similar powers for
the Bankrupt Party or for any material part of the Bankrupt Party's
properties, (iii) a court or governmental authority of competent
jurisdiction has, without the consent of the Bankrupt Party, appointed
a custodian, receiver, trustee or other officer with similar powers
with respect to the Bankrupt Party, (iv) an order for relief has been
entered against the Bankrupt Party in any case or proceeding for
liquidation or reorganization or otherwise to take advantage of any
bankruptcy or insolvency law of any jurisdiction, or ordering the
dissolution, winding-up or liquidation (in connection with a bankruptcy
or insolvency proceeding) of the Bankrupt Party or (v) any petition of
any such relief has been filed against the Bankrupt Party and the
petition has not been dismissed within 90 calendar days after the
filing;
(e) By XXXXXX upon the delivery to AGTI of written notice to such effect if
AGTI has acquired control of, or become controlled by or under common
control with, any competitor of XXXXXX.
6.0 EFFECT OF TERMINATION.
Upon termination of this MOU, neither party shall have any further rights or
obligations hereunder, except that (i) the provisions of Sections 7 and 8 shall
survive such termination, (ii) any equipment loaned by XXXXXX pursuant to
Section 10 shall be returned to XXXXXX, and (iii) if the termination is for
reasons other than a breach by AGTI pursuant to clause (b) or (c) of Section 5,
XXXXXX shall pay AGTI all installments of compensation earned to the date of
termination.
7.0 COVENANT OF NONDISCLOSURE.
AGTI shall not, at any time during or after the term of this MOU, in any manner,
either directly or indirectly, divulge, disclose, or communicate to any person,
firm, corporation or other entity, or use for his own benefit or for the benefit
of any other person, firm, corporation or other entity, and not for the benefit
of XXXXXX, any information acquired from Border or its affiliates, without the
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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express prior written consent of an authorized executive officer of XXXXXX, as
more fully set forth in a certain Non-disclosure Agreement between XXXXXX and
AGTI dated July 29, 2004.
8.0 RIGHTS TO WORK; LICENSE TO AGTI.
The parties acknowledge that the Work Product created by AGTI for XXXXXX
pursuant hereto is being created at the insistence of XXXXXX.
XXXXXX hereby owns and AGTI hereby grants, assigns and conveys to XXXXXX all
right, title and interest in and to all inventions, discoveries, prototypes,
programs, specifications, documentation and all other technical information
prepared by AGTI, either solely or jointly with XXXXXX and/or others, in
connection with this MOU, including but not limited to all Work Product, as well
as all works of authorship, trade secrets and other proprietary data and all
other materials (as well as the copyrights, patents, trade secrets and similar
rights attendant hereto) conceived, reduced to practice, authored or developed
by AGTI, either solely or jointly with XXXXXX and/or others, including but not
limited to XXXXXX, during and in connection with this MOU (collectively the
"XXXXXX Owned Technology").
AGTI agrees that it will not seek patent, copyright, trademark, registered
design or other protection for any rights in the XXXXXX Owned Technology,
including works of authorship, proprietary data or other materials related
thereto. AGTI shall have no right to disclose or use any such inventions, works
of authorship, trade secrets and proprietary data or other materials related to
the XXXXXX Owned Technology and shall not communicate to any third party the
nature of or details relating to the XXXXXX Owned Technology, works of
authorship, proprietary data or other materials. AGTI agrees that at XXXXXX'x
expense, AGTI shall do all things and execute all documents as XXXXXX may
reasonably require to vest in XXXXXX or its nominees the rights referred to
herein and to secure for XXXXXX or its nominees all patent, trademark, and trade
secret copyright protection related to the XXXXXX Owned Technology. AGTI's
obligations under this Section 8 shall survive expiration or termination of the
MOU and any amendments thereto. Furthermore, AGTI hereby irrevocably waives all
rights in and to the XXXXXX Owned Technology created or developed hereunder.
XXXXXX shall have the right to use the XXXXXX Owned Technology, any part or
parts thereof, or none of the XXXXXX Owned Technology, as it sees fit. XXXXXX
may alter the XXXXXX Owned Technology, add to it, or combine it with any other
work or works, at its sole discretion. Notwithstanding the foregoing, all
original material submitted by AGTI as part of the Work Product, including but
not limited to designs, prototypes, test results, programs, listings, printouts,
documentation, notes, flow charts, and programming aids, shall be the property
of XXXXXX whether or not XXXXXX uses such material.
Title to all material and documentation, including but not limited to, systems
specifications furnished by XXXXXX to AGTI or delivered by XXXXXX into AGTI's
possession shall remain with XXXXXX. AGTI shall immediately return all such
material or documentation within seven (7) days of any request or upon the
termination or conclusion of this engagement under this MOU, whichever shall
occur first.
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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Whenever an invention or discovery is made by AGTI either solely or in
collaboration with others, including employees of XXXXXX, under or relating, in
any manner, to this MOU, AGTI shall promptly give XXXXXX written notice thereof
and shall furnish XXXXXX with complete information thereon including, as a
minimum, (1) a complete written disclosure of each such invention and (2)
information concerning the date and identity of any public use, sale or
publication of such invention known to AGTI. As used herein, the terms (1)
"invention" or "invention or discovery" includes any art, machine, manufacture,
design or composition of matter or any new and useful improvement regarding the
Work Product where it is or may be patentable under the patent laws of the
United States or of any foreign country; and (2) "made," when used in relation
to any invention or discovery, means the conception of the first actual or
constructive reduction to practice of such invention.
Subject to the terms of this MOU, XXXXXX hereby grants, and AGTI hereby accepts,
a royalty bearing, exclusive right and license, to use the XXXXXX Owned
Technology to make, use, offer for sale and sell products or services in the
following RFID wireless applications (i) track and trace assets, especially
within buildings and underground enclosures, (ii) track and trace people,
especially within buildings and underground enclosures and (iii) track and trace
cattle (the "AGTI Field of Use"). Notwithstanding anything else to the contrary
in this MOU, and except for the rights and licenses granted to AGTI in the
previous sentence, XXXXXX retains all right, title and interest in and to the
XXXXXX Owned Technology. In the event AGTI recognizes an opportunity to employ
the XXXXXX Owned Technology for additional uses or applications outside of oil
field use or other uses then being practiced or contemplated by XXXXXX, AGTI and
XXXXXX will enter into good faith negotiations with respect to the expansion of
the AGTI Field of Use to such additional uses or applications.
AGTI shall pay to XXXXXX a royalty based on five percent (5%) of all Revenue
received by AGTI in the AGTI Field of Use. For purposes of this MOU, Revenue
includes the net sale price received by AGI for any products after deducting any
returns, allowances, taxes or transportation, and all royalties and fees
received by AGTI from the granting of any licenses. The royalty shall apply for
a period of ten years after first commercialization by AGTI in the AGTI Field of
Use (the "Royalty Period") after which the royalty shall be deemed fully paid
up. All such payments made by AGTI to XXXXXX will be due and payable annually,
simultaneously with the delivery of an annual report that AGTI shall furnish to
XXXXXX within thirty (30) days following the end of each fiscal year setting
forth the Revenues received by AGTI in the AGTI Field of Use during that year.
During the Royalty Period and for one year after the expiration or termination
of the Royalty Period, AGTI shall keep full and accurate books of account
sufficient to record its Revenue. During the term of the Royalty Period and for
one year thereafter, XXXXXX, upon twenty (20) calendar days prior written
notice, shall have the right, at its own expense and at reasonable times during
business hours, to have the aforesaid records of AGTI examined by a duly
accredited independent public accountant for the sole purpose of, and only to
the extent necessary for, verifying AGTI's Revenues. Such audits shall be
permitted no more than once each calendar year and said accountants shall hold
information learned in the course of any and all audits hereunder in strictest
confidence except to the extent necessary for XXXXXX to enforce its rights under
this MOU.
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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AGTI agrees it will not disclose to any third party, without prior written
consent of XXXXXX, any invention or discovery made under or relating to the
XXXXXX Owned Technology and this MOU or any proprietary or confidential
information acquired from XXXXXX under this MOU, including trade secrets,
business plans and confidential or other information which may be proprietary to
XXXXXX, all of which shall be subject to the Non-disclosure Agreement described
in Section 7 hereof.
9.0 STANDARD OF CARE.
AGTI shall perform its services in a good and workmanlike manner and otherwise
in accordance with the generally accepted standard of care applicable to the
performance of similar services. If the performance of any service does not
conform to such standard of care, then AGTI shall promptly re-perform the
service.
AGTI shall assign to the performance of its services individuals that AGTI
determines are sufficiently experienced and skilled and reasonably necessary to
permit AGTI to perform the services. AGTI shall control the day-to-day
activities of such individuals and otherwise ensure that no such individual is
deemed to be an employee of XXXXXX for any purpose.
AGTI will not knowingly create Work Product in any manner in which it or its
intended use infringes the patent or property rights of third parties.
10.0 LOANED EQUIPMENT.
XXXXXX shall loan to AGTI, and AGTI shall borrow from XXXXXX, the Loaned
Equipment. The initial Loaned Equipment, if any, is set forth on the Loaned
Equipment Schedule attached. If XXXXXX delivers to AGTI, on a loan basis, any
other assembly or test equipment, then the Loaned Equipment Schedule shall
automatically be amended to include the equipment, and XXXXXX shall promptly
deliver to AGTI a copy of the amended Schedule. All equipment loaned to AGTI, as
identified in the Loaned Equipment Schedule, will be fully insured by XXXXXX.
AGTI shall maintain the Loaned Equipment and upon the termination of this MOU
shall return the Loaned Equipment to XXXXXX in good order and condition,
reasonable wear and tear excepted.
11.0 LEGAL PROCEEDINGS.
Any controversy or claim arising between the parties with respect to disputes
relating to this MOU shall be resolved by binding arbitration. This agreement to
arbitrate shall continue in force and effect despite the rescission or
termination of this MOU. All arbitration shall be undertaken pursuant to the
Federal Arbitration act, and the decision of the arbitrator(s) shall be
enforceable in any court of competent jurisdiction. The parties knowingly and
voluntarily waive their rights to have their dispute tried and adjudicated by a
judge or jury. The arbitrator(s) shall apply the law of Texas and the
arbitration shall be held in or within twenty-five (25) miles of Dallas, Texas,
as determined by the parties, or if they do not agree, by the arbitrator(s).
(a) Any party may demand arbitration by sending written notice to
the other party. The arbitration and the selection of the
arbitrator(s) shall be conducted in accordance with such rules
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Securities and Exchange Commission pursuant to a confidential treatment request.
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as may be agreed upon by the parties, or, failing agreement
within 30 days after arbitration is demanded, under the
Commercial Arbitration Rules of the American Arbitration
Association, as such rules may be modified by this MOU. In any
dispute, which involves more than $100,000 in damages, three
arbitrators shall be used.
(b) The costs of arbitration, but not the costs and expenses of
the parties, shall be shared equally by the parties. If a
party fails to proceed with arbitration, unsuccessfully
challenges the arbitration award, or fails to comply with the
arbitration award, the other party is entitled to costs,
including reasonable attorney's fees, for having to compel
arbitration or defend or enforce the award. Except as
otherwise required by law, the parties and the arbitrator(s)
shall maintain as confidential all information or documents
obtained during the arbitration process, including resolution
of the dispute.
(c) Notwithstanding the above, the parties recognize that either
party may desire to seek emergency, provisional, or summary
relief (including temporary injunctive relief) to enforce the
provisions of this MOU relating to protection of confidential
information or other restrictions. Either party may seek such
relief, provided, however, that, immediately following the
issuance of any emergency, provisional, temporary injunctive
or summary relief, any judicial proceedings shall be stayed
(and each party shall consent to such stay) pending
arbitration of all underlying claims between the parties.
12.0 EXPORT REGULATIONS.
AGTI acknowledges its obligations to control access to technical data under the
U.S. Export Laws and Regulations and agrees to adhere to such laws and
regulations with regard to any technical data received or developed under this
MOU.
13.0 ADHERENCE TO LAWS.
AGTI agrees that in carrying out its duties and responsibilities under this MOU,
it will neither undertake nor cause, nor permit to be undertaken, any activity
which either (i) is illegal under any laws, decrees, rules, or regulations in
effect in either the United States or any other country in which XXXXXX has a
business interest; or (ii) would have the effect of causing XXXXXX to be in
violation of any laws, decrees, rules, or regulations in effect in either the
United States or any other country in which XXXXXX has a business interest.
AGTI agrees to notify XXXXXX immediately of any extortive solicitation, demand,
or other request for anything of value, by or on behalf of any entity or
individual, relating to the subject matter of this MOU.
14.0 PUBLICITY.
Except as otherwise required by applicable law or Security and Exchange
Commission rules, neither party shall issue or cause the issuance of any press
release or other publication of the existence of this MOU or the transactions
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Securities and Exchange Commission pursuant to a confidential treatment request.
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contemplated hereby, without the prior consent of the other party. Border and
AGTI agree that this consent will not be unreasonably withheld.
15.0 RELATIONSHIP OF THE PARTIES.
AGTI shall perform its obligations under this MOU as an independent contractor
of XXXXXX. Nothing contained in this MOU is intended or shall be construed to
create any partnership, joint venture or agency relationship between the
parties. Nothing contained in this MOU is intended or shall be construed to
confer upon or give any person or entity other than the parties any rights under
or by reason of this MOU.
16.0 INDEMNIFICATION.
AGTI shall defend, indemnify and hold harmless XXXXXX and its officers,
directors, employees, agents, parent, subsidiaries and other affiliates, from
and against any and all damages, costs, liability, and expense whatsoever
(including attorneys' fees and related disbursements) incurred by reason of (a)
any failure by AGTI to perform any covenant or agreement of AGTI set forth
herein; (b) injury to or death of any person or any damage to or loss of
property which is due to the negligence and/or willful acts of AGTI; or (c) any
breach by AGTI of any representation, warranty, covenant or agreement under this
MOU. XXXXXX shall have the right to offset against any fees or commissions due
AGTI under this MOU the amount of any indemnity to which XXXXXX is entitled
under this Section 16 for any damage, cost, liability, expense, fee or other
disbursement, incurred by XXXXXX pursuant to this Section 16.
17.0 MISCELLANEOUS
17.1. COOPERATION. AGTI agrees that at any time and from time to
time, upon the request of XXXXXX, to do, execute, acknowledge
and deliver, or cause to be done, executed, acknowledged and
delivered, all such further acts, documents and instruments as
may be required to effect any of the transactions contemplated
by this MOU.
17.2. AMENDMENTS. This MOU replaces and supersedes all prior
agreements, and any other agreements relating to the subject
matter hereof, between the parties to this MOU. No alteration,
modification, amendment or other change of this MOU shall be
binding on the parties unless in writing, approved and
executed by AGTI and an authorized executive officer of XXXXXX
whether by operation of law or otherwise.
17.3. ASSIGNMENT. This MOU is not assignable by AGTI, whether by
operation of law or otherwise, and all obligations of XXXXXX
hereunder, other than the obligation to pay previously
entitled compensation, shall terminate automatically upon the
termination of this MOU.
17.4. NOTICES. Any notice or other communication pursuant to this
Agreement shall be in writing and shall be deemed to have been
fully given or made upon the first to occur of the date
actually delivered or the expiration of five (5) days after
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Securities and Exchange Commission pursuant to a confidential treatment request.
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being mailed by United States registered or certified mail,
postage prepaid, to the following addresses or such other
addresses as the parties may provide in writing to the other
from time to time:
If to XXXXXX:
====================
====================
--------------------
If to AGTI:
Xx. Xxxxxxx X. Xxxxxxx t CEO AirGATE Technologies,
Inc. 000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxx, XX 00000
17.5. GOVERNING LAW. This MOU shall be governed by and interpreted,
construed and enforced in accordance with the laws of the
State of Texas, excluding conflicts of laws principles.
17.6. INVALIDITY. The terms of this MOU shall be severable so that
if any term, clause, or provision hereof shall be deemed
invalid or unenforceable for any reason by a court of
competent jurisdiction, such invalidity or unenforceability
shall not affect the remaining terms, clauses and provisions
hereof, the parties intending that if any such, term, clause
or provision were held to be invalid prior to the execution
hereof, they would have executed an agreement containing the
remaining terms, clauses and provisions of this MOU.
17.7. WAIVER OF BREACH. The waiver by either party hereto of any
breach of the terms and conditions hereof will not be
considered a modification of any provision, nor shall such a
waiver act to bar the enforcement of any subsequent breach.
17.8. BACKGROUND, ENUMERATIONS AND HEADINGS. The "Background,"
enumerations and headings contained in this MOU are for
convenience of reference only and are not intended to have any
substantive significance in interpreting this MOU.
17.9. COMPANY PROPERTY. All XXXXXX property in the possession or
control of AGTI including, but not limited to, specifications,
documentation, manuals, tools, and programs will be returned
by AGTI to XXXXXX on demand, or at the termination of this
MOU, whichever shall come first.
17.10. WARRANTY. As an inducement for XXXXXX to enter into this MOU,
AGTI represents and warrants to XXXXXX that all services, work
and deliverables to be performed hereunder shall be performed
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Securities and Exchange Commission pursuant to a confidential treatment request.
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by AGTI in a professional and workmanlike manner, in
accordance with the highest industry standards. AGTI shall,
and shall cause each of its subcontractors to, comply with all
industry standards applicable to the Work Product
17.11. SUCCESSORS AND ASSIGNS. This MOU shall inure to the benefit of
and be binding upon the parties and their successors and
assigns.
IN WITNESS WHEREOF, the parties have executed this MOU effective the date first
written above.
AirGATE Technologies, Inc. XXXXXX Chemical, Inc.
By:___________________________ By:_________________________
Name:_________________________ Name:_______________________
Title:________________________ Title:______________________
Date:_________________________ Date:_______________________
***Confidential Information has been omitted and filed separately with the
Securities and Exchange Commission pursuant to a confidential treatment request.
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