Product Design Agreement
EXHIBIT
10.12
This
Agreement (“Agreement”) is entered into May 1st, 2007 (‘late “Effective Date”)
by and between PocketFinder LLC, a corporation residing at 0000 X. Xx Xxxxx
Xxxxxx Xxxxxxx, XX., 00000 (“The Company”), and Aero Technology UK Ltd (“The
Contractor”) organized under the laws of Great Britain having a registered
address as 0X Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxx.
RECITALS
A. The
Company is the owner of certain patents, patent applications, technology and
intellectual property relating to personal apparatus for receiving and
transmitting radiotelephone communications and location based
services.
B. The
Contractor is undertaking to design for the Company the required circuitry,
software, mechanics and radio frequency generation and reception functions
required to realize the production of a cellular device for receiving and
transmitting radio telephone signals and location signals which incorporates
such patents, patent applications, technology and other intellectual property
and in accordance with the terms and conditions of this agreement.
AGREEMENT
NOW,
THEREFORE, in consideration of the following mutual covenants and agreements
and
promises, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties hereto,
the
parties agree as follows.
1. Definitions.
1.1 “Product”
- refers to a fully functional two way cellular terminal as described but not
limited to the subject matter contained in but not limited to Appendix I of
this
Agreement and as described to the Contractor by the Company.
1.2 “Effective
Delivery Date” - means the date on which the design and all of the required
elements of the design are in a complete state where they can be handed over
to
the Company’s chosen manufacturer ready for immediate mass
production.
1.3 “Third
Party Supplier” - refers to any person, Company, or organization engaged by the
Company or the Contractor to undertake any work in connection with the design
of
the product.
1.4 “Improvement”
- means any modification or revision relating to the use of the product
described in Appendix I of this Agreement whether discovered or conceived or
invented by the Company or Contractor or co-conceived, co-invented or
co-discovered by the Company and the Contractor, or by the Company and a third
party supplier or third party suppliers or by the Contractor and any third
party
supplier or third party suppliers.
1
1.5 “Technology”
shall mean inventions (as defined in Section 1.7 below) and other know how
and
other intellectual property related to the Company or otherwise incorporated
in
or used in connection with the design or manufacture of the
product.
1.6 “Confidential
Information” shall mean the terms of this Agreement and information related to
the Company’s business disclosed to the Contractor by the Company as a
consequence of or through performance of services for the Company, its
subsidiaries or affiliates, whether or not related to the Contractor’s specific
work for the Company. Confidential Information includes all
information related to any aspects of the Company’s business which is either
information not know by actual or potential competitors of the Company or is
proprietary information of the Company, whether of a technical nature or
otherwise. Confidential Information includes Inventions (as defined
in Section 1.7 below); know how, data, financial information and forecasts,
product plans, marketing plans and strategies, and customer
lists. Information shall be considered, for purposes of this
Agreement, to be Confidential Information if not known by the trade generally,
even though such information has been disclosed to one or more third parties
pursuant to license or distribution agreements, joint development agreements,
or
agreements entered into by the Company or any of its affiliates. For
purposes of this Agreement, information shall not be considered confidential
to
the extent that such information is or becomes, through no fault of the
Contractor, part of the public domain, or such information is lawfully furnished
to the Contractor by a third party without restriction or
disclosure.
1.7 “Inventions”
shall mean any and all inventions, data, drawings, specifications, processes,
methods, concepts, ideas, designs, circuits, schematics, formulas, algorithms,
trade secrets, trademarks, patents, copyrights, works of authorship, mask works,
developmental or experimental work, processes, techniques, and
improvements.
2. Products
& Services.
2.1 The
Contractor agrees to design the Product for the Company.
2.2 The
design shall include all of the required elements to realize a fully functional
Product, including but not limited to, the MMi, baseband, protocol stack, radio
frequency generation, GPS integration and reception circuitry, printed circuit
board(s), battery, battery management software, drivers, controllers,
outer-casing, logic programming key, required filtering devices.
2.3 The
Contractor shall carry out the design ensuring the Product performs to as a
minimum the specifications as set out in Appendix I of this
Agreement.
2.4 The
Contractor shall design the Product, and then have the Product successfully
approved to the standards of’, and certificated by, the regulatory bodies of the
FCC, CE, IC and CCC.
2
2.5 Key
to the design shall be the xxxx of materials far the Product, the xxxx of
materials as set out in Appendix I attached hereto, is the target cost for
the
xxxx of materials required to produce the Product. The Contractor
shall provide a full xxxx of materials within sixty days from the start of
this
Agreement, which shall be updated monthly. The Contractor shall
notify the Company immediately in writing if the estimated xxxx of materials
goes outside the upper limit as shown in Appendix I hereto.
2.6 Throughout
the design of the Product, the Contractor shall provide the Company with copies
of all drawings designs and other material as relates to the
Product.
2.7 The
physical dimensions of the Product and the physical appearance of the Product
shall be exactly as shown on the selected illustration contained in Appendix
IV
hereto.
2.8 Improvements
to the Product additional to those features described in Appendix I hereto
may
be agreed between the parties from time to time for inclusion into the design
of
the Product; all such improvements must be approved by the Company in writing
to
the Contractor.
2.9 The
Contractor also undertakes if requested, to supply such other services as will
be required for the pre and mass production of the finished Product, including
without limitation, further design and improvement of the Product, examples
of
such further products and services which may be required by the Company are
set
out in Appendix III hereto.
2.10 In
the course of the Product design, the Contractor shall not make the Company
liable for any royalty or licensing or other on going charges for the use of
any
third party technology, components or other products or services, within or
related to the Product. The use of such third party technology
products or services is strictly prohibited without the prior and clear written
instruction and authorization of the Company, failure to obtain such authority
shall render the Contractor solely liable for all such on going royalty,
licensing payments as may be levied against the Product by any third
party. Contractor further agrees to defend, indemnify, and hold
harmless the Company against such claims from third persons.
3. Quality
Standards.
3.1 The
Contractor shall complete all work associated with the design of the Product
to
ISO 9001 : 2000 procedures, a quality manual will be maintained by the Supplier
and Manufacturer.
3.2 The
Contractor will provide the finished design in line with the specifications
as
set out in Appendix I hereto; these specifications shall be the minimum
acceptable to the Company with the Contractor constantly aiming to improve
on
the specifications set out in Appendix I hereto.
3.3 The
Contractor shall carry out sufficient oil air testing of the Product in the
USA/Canada and Europe as is required to establish the satisfactory performance
and stability of the Product. The results of such on air testing must
be submitted to the Company for acceptance in writing.
3
3.4 The
Contractor warrants to the Company that the Product is not subject to any design
or intellectual property infringements resulting from design of the
Product. The Contractor further agrees to defend, indemnify and hold
the Company harmless against any such claims.
3.5 If
a chosen manufacturer reasonably refuses to manufacture the Product as a result
of design defect or deficiencies the Contractor shall immediately and fully
rectify such design defect at its own cost.
3.6 Within
30 days of this Agreement being signed by the parties, the Company and the
Contractor shall complete a project document file to be updated on an ongoing
basis as a history of the design by the Contractor, the format for the document
shall be agreed between the Company and the Contractor as shall the frequency
of
updates.
3.7 If
the Product develops a fault after manufacture resulting in a Product recall
or
failure rate in the field in excess of 3%. the Company shall have the right
to
die following:
a. Examination
by an independent body of the Product to determine if such fault is a defect
in
manufacturing, component quality or design.
b. Where
such fault is determined to be as a result of the design of the Product the
Contractor shall, at its own cost, rectify such faults in the design and also
cover all costs associated with the re-working of die existing Product in the
field, in manufacture, in transit, or with the Company to rectify such faults
and defects.
3.8 At
each of the milestones as set out in Appendix II attached hereto, the Company
shall receive a sample of the work carried out to date and have the right to
accept or reject such work in writing.
3.9 In
addition to the written milestone sign-offs it is the responsibility of the
Contractor to get the Company’s written acceptance at all stages of the design
effecting the final performance of the product, including but not limited to,
final MMI (man machine interface), battery performance, physical design form
etc. Any element of the design rejected by the Company where the
Contractor did not gain written sign-off from the Company shall be rectified
to
the Company’s satisfaction at Contractor’s cost. The acceptance of the design
stages and the sign-off letters shall form part of the project document as
described in paragraph 35 herein.
4. Contractor’s
Representations.
4.1 Contractor
represents and warrants to the Company as follows:
(i) The
Work will not infringe any copyright or other proprietary right of any third
party;
(ii) No
portion of the Work has been created or commenced prior to the date of this
Agreement; and
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(iii) Contractor
will not transfer or assign, directly or indirectly, any right, title, or
interest in or to the Work to any third party.
5. Payments.
5.1 The
Company agrees to pay the Contractor the amounts shown in Appendix II
hereto.
5.2 From
time to time, the Company may purchase from the Contractor, in conjunction
with
the Contractor, through the Contractor, or for the Contractor, such items as
are
set out in Appendix III attached hereto. The purchase of such
additional product,; or services shall be at the Company’s
discretion. The Contractor shall not make the Company liable in any
way for further cost than listed in Appendix II attached hereto, without the
prior -written consent of the Company in the form of an official purchase order
duly signed and Authorized by a Company Officer issued to the Contractor or
third party as requested by the Contractor.
5.3 The
Company agrees to pay for the FCC approval of the Product in accordance with
the
payments set out in Appendix II, should the Product fail either of these
approvals or any other approval for which it is submitted at the first
examination by the approving body the Contractor shall pay for all subsequent
re
submissions for approval until approval is granted by the approving
body.
5.4 All
payments from the Company to the Contractor shall be made by wired transfer;
payments shall be made on or as close as practibly possible to the dates shown
in Appendix II attached hereto.
6. Timescales.
6.1 Time
shall be of the essence as set out in Appendix II of this
contract. Failure of the Contractor to achieve the effective delivery
date as set out in Appendix II attached hereto, for the design of the Product,
shall render the Contractor liable to credit the Company the amount of 1% of
the
Payments as set out in Appendix II hereto, such credits shall become due on
the
first of each calendar month after the effective delivery date and be repeated
thereafter until the supplier delivers the finished Product ready for main
production.
6.2 Any
delay in payments from the Company to the Contractor after the agreed milestone
date other than for rejection of work submitted shall be considered as an
extension to the effective delivery date without penalty to the
Contractor.
7. Title.
7.1 Immediately
upon execution of this Agreement, and through the design of the Product by
the
Contractor, title to the design shall be in the Company, this shall include
but
not be limited to all documentation, drawings, software and any equipment or
tools purchased, procured, or prepared by the Contractor or the Company and
held
by the Contractor specifically for use in the design of the
Product.
5
7.2 All
approvals documentation shall be supplied in the name of the
Company.
7.3 If
the Contractor becomes insolvent or ceases to trade, or is unable to perform
under this Agreement for any other reason, all material including documentation,
drawings, designs, software, tools and other items procured or prepared specific
to the fulfillment of this Agreement shall be immediately delivered to
Company. Contractor shall not declare any items, tools or other
material procured specifically for the fulfillment of this Agreement as assets
of the Contractor’s business -- all such items, tools and other material being
property of the Company on loan to the Contractor.
7.4 If
any of the events mentioned in Sections 7.3 or 10.2 occurs, Contractor shall
hand over the design in as complete a manner as possible where an alternative
supplier could reasonably be expected to carry on the design of the
Product.
7.5 The
Contractor hereby assigns and agrees to assign to the Company or its designee,
without further consideration, the Contractor’s entire right, title, and
interest in and to all Inventions (as defined in Section 1.7 above) made,
conceived, or completed by the Contractor, individually or in conjunction with
others, resulting Exam work or consulting services performed by the Contractor
on behalf of the Company or from access to the Confidential Information or
property, whether or not patentable, copyrightable, or qualified for mask work
protection. This assignment includes all rights to obtain, register,
enforce trade secrets, patents, copyrights, and trademark, fights, and other
intellectual property protection for such Inventions. No rights are
reserved by the Contractor, and the Contractor irrevocably waives its moral
rights in any Invention.
7.6 The
Contractor shall without royalty or further consideration disclose to the
Company all information with respect to any Inventions.
7.7 The
Contractor when requested to do so by the Company, promptly execute and assign
any and all applications, assignments and other instruments which die Company
shall deem necessary to apply for and obtain patents, trademarks, copyrights,
trade secrets, mask work rights in the United States and in foreign countries,
for the Inventions, and convey to the Company or to the Company nominee the
sole
and exclusive right, title and interest in and to the Inventions or the patents,
trademarks, copyrights, trade secrets, mask work or applications of any of
the
foregoing.
7.8 The
Contractor shall when requested to do so by the Company, deliver promptly to
the
Company evidence for infringement or infringement purposes or other legal
proceedings and testify in any interference or other legal proceedings which
relates to any matters on which the Contractor has provided services to the
Company.
7.9 The
Contractor and the Company expressly agree that the Product is a “work made for
hire,” and the Contractor expressly waives and relinquishes any and all
authorship, copyright, ownership, or other statutory or common law claims to
the
Product, or any interest or rights in the Product, except only the right to
be
paid in accordance with the Agreement. The Contractor further agrees
that in the event it is subsequently determined in a legal proceeding that
notwithstanding the foregoing language, the Contractor retains any right, title,
or interest in or to the Product, the Contractor irrevocably agrees to sell,
transfer, and assign any and all such right, title, or interest to the Company,
immediately upon the Company’s request, for the sum of One Dollar
($1).
6
8. Procurement
From Third Parties.
8.1 In
respect of the Company making purchases from third parties where the Contractor
has specified the third party and the product or service required as part of
the
design or production of the Product, the liability for the suitability of the
product or service shall rest with the Contractor who shall pay for the purchase
of subsequent replacement products or services as required directly as a result
of the unsuitability of product: purchased by the Company under the
direction of the Contractor. This shall apply to all purchases from
third parties where the Company has been instructed by the Contractor and in
particular to, but not limited to the procurement of plastic molding tools,
software, reference designs, components test equipment and the
like.
8.2 The
Contractor will notify the Company within 60 days from the commencement of
this
Agreement of all additional products and services that will be required to
put
the Product in mass production on the effective delivery date, this shall
include but not be limited to plastics tooling, jigs, software, components
list
etc. The Contractor will liaise directly with the Company’s chosen
manufacturer to ensure the suitability and compatibility of all such additional
products and service.
9. Confidentiality.
9.1 The
Contractor shall hold all Technology (as defined in Section 1.6) and
Confidential Information (as defined in Section 1.7 above) in strict confidence
and shall not disclosure confidentiality regarding all aspects of the product’s
design, including without limitation, the Technology (as defined in Section
1.6
above), and shall not disclose such information to any third persons absent
prior written authorization by the Company. Except as required in the
Contractor’s duties for the Company, the Contractor will never directly or
indirectly use, disseminate, disclose, lecture upon, or publish articles
concerning Technology or Confidential Information.
9.2 The
Contractor shall ensure that all sub-contractors and third party suppliers
to
the Contractor complete and sign a non-disclosure agreement (see Appendix V
“Non-Disclosure Agreement”).
10. Competitive
Activities.
10.1 The
Contractor shall not utilize any of the Company’s technology or designed
hardware or software in any other product for any third party product the
Contractor may design in the future.
10.2 Contractor
acknowledges and agrees that its breach of any of the terms set forth in this
Agreement, including Sections 7, 8, 9, 10, 11, 12.3 and 13.19 would cause
irreparable and permanent injury to the Company, which injuries could not be
adequately compensated by any monetary award. Contractor further agrees that
if
such breach occurs, the Company shall have the right, in addition to monetary
remedies, to seek immediate and permanent injunctive relief against
Contractor.
7
11. Indemnity.
11.1 The
Contractor shall indemnify and hold the Company and its officers and employees
harmless from any and all claims, causes of action, expenses, damages, and
liabilities which may incur arising from Contractor’s or its personnel’s
unauthorized acts.
12. Term
& Termination.
12.1 This
Agreement shall conic into effect upon the date of the first payments being
received by the Contractor or on the date of signature whichever is
sooner. This Agreement and all of Contractors obligations hereinafter
shall remain in force for the life of the products designed by the Contractor
as
described in Appendix I hereto.
12.2 The
Company reserves thee right to terminate this Agreement at any time without
reason by giving not less than 3 months written notice to the Contractor and
by
paying all monies due to the Contractor up to and including the next due
milestone payment.
12.3 Such
termination shall not release the Contractor from any of the agreed terms and
conditions regarding title (see Section 7 “Title”), confidentiality (see Section
9 “Confidentiality”), competitive activity (see Section 10 “Competitive
Activities”), indemnity (see Section II “Indemnity”), and power (see Section
13.19 “Limitation of Powers”) contained in this Agreement.
12.4 The
Contractor accepts this Agreement in whole for the completion of the Product’s
design; the Contractor shall not have the option to terminate this Agreement
other than in the event of the Company becoming bankrupt or
insolvent.
13. Miscellaneous.
13.1 Binding
Effect. This Agreement will be binding upon and will inure to the
benefit of each party and, if applicable, their respective successors and
assigns; provided, however, that, absent prior written authorization by
Company, Contractor may not assign any of its rights or delegate any of its
obligations tinder this Agreement and any purported assignment or delegation
will be void.
13.2 Assignment. Contractor
expressly acknowledges and agrees that (1) Company has the absolute right to
assign its rights under this Agreement to PocketFinder, LLC; and (2) Company,
or
its assignee, PocketFinder, LLC, may assign its rights under this Agreement
to
such other persons upon the written consent of Contractor, which consent shall
not be unreasonably withheld.
13.3 Notices
and Demands. All demands or notices under or related to this
Agreement will be in writing and mailed or hand-delivered to the respective
party hereto at the address specified below or such other address as will have
been specified in a written notice. Any demand or notice mailed will
be mailed first-class mail, postage-prepaid, return receipt-requested and ,will
be effective upon the earlier of (a) actual receipt by the addressee, and (b)
the date shown on the return-receipt. Any demand or notice not mailed will
be
effective upon actual receipt by the addressee.
8
|
|
Company:
|
PocketFinder,
LLC
|
|
|
0000
X. Xx Xxxxx Xxx., Xxxxxxx, XX.
00000
|
|
|
Attn: Xxxxxx
Xxxxxxx
|
|
|
Contractor:
|
Aero
Technology UK Ltd.
|
|
|
0X
Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx,
Xxxxxxx
|
|
|
Attn: Xxxxx
Xxxxxx
|
13.4 Jurisdiction;
Choice; of Law. The parties agree and acknowledge that this
Agreement has been entered into in the County of Orange, California and that
such county shall be the exclusive venue for any litigation related to or
arising from this Agreement. Further, the Contractor expressly
acknowledges and agrees that it has sufficient contacts with California to
make
it subject to personal jurisdiction within California with respect to any
dispute between the Company and the Contractor, and the Contractor expressly
consents to such jurisdiction. The parties further acknowledge and
agree that this Agreement and the rights and obligations of the parties
hereunder will be construed in accordance with and governed by the laws of
California, without giving effect to the choice of law rules of
California.
13.5 Arbitration. The
parties agree that upon the written demand of any party, whether made before
or
after the institution of any legal proceedings, but prior to the rendering
of
any judgment in that proceeding, all disputes, claims and controversies between
them, whether individual, joint, or class in nature, arising from this Agreement
or otherwise, including, without limitation, contract disputes and tort claims,
shall be resolved by binding arbitration pursuant to the Commercial Rules of
the
American Arbitration Association. Any arbitration proceeding held
pursuant to this arbitration provision shall be conducted in the city nearest
Company’s address having an AAA regional office, or at any other place selected
by mutual agreement of the parties. This arbitration provision shall
not limit the right of either party during any dispute, claim or controversy
to
seek, use, and employ ancillary or preliminary rights and/or remedies, judicial
or otherwise, for the purposes of realizing upon, preserving, protecting, and
its rights under this Agreement,, and any such action shall not be deemed an
election of remedies. Such remedies include, without limitation,
obtaining injunctive relief or a temporary restraining
order. Judgment upon any award rendered by any arbitrator may be
entered in any court having jurisdiction. Nothing in this arbitration
provision shall preclude any party from seeking equitable relief from a court
of
competent jurisdiction. The statute of limitations, estoppel, waiver,
lathes and similar doctrines which would otherwise be applicable in an action
brought by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement
of
any action for these purposes, The Federal Arbitration Act (Title 9 of the
United States Code) shall apply to the construction, interpretation, and
enforcement of this arbitration provision.
13.6 JURY
WAIVER. THE PARTIES HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY
AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY
DISPUTE (WHETHER BASED UPON CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG THEM
ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR ANY OTHER RELATED
DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO EACH PARTY TO ENTER INTO
THE AGREEMENT.
9
13.7 Due
Authorization. Each of the parties represents warrants and
covenants to the other that it has the full right, power and authority to enter
into this Agreement and there is nothing that would prevent it from performing
its obligations under the terms and conditions imposed on it by this
Agreement. The execution, delivery and performance of this Agreement
have been duly authorized by all of its necessary corporate and stockholder
action and constitutes a valid and binding obligation of it, enforceable against
it in accordance with the terms hereof and any and all consents required to
be
obtained have been obtained.
13.8 Duty
to Act in Good Faith. Each of the parties to this Agreement
agrees to act in good faith with respect to all of its rights, privileges,
duties and obligations under this Agreement.
13.9 Time
of Essence; Time for Performance. Time is of the essence with
regard to each provision of this Agreement as to which time is a
factor. Whenever any performance under this Agreement is stated to be
due on a day other than a business day or whenever the time for taking any
action under this Agreement would fall on a day other than a business day,
then
unless otherwise specifically provided in this Agreement, the due date for
such
performance or the time for taking such action, as the case may be, will be
extended to the next succeeding business day.
13.10 Severability. If
any provision or any part of any provision of this Agreement is unenforceable,
the enforceability of the other provisions and the remainder of the subject
provision, respectively, will not be affected and they will remain in full
force
and effect.
13.11
Entire Agreement. This Agreement embodies the entire
agreement, and understanding between the parties relating to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, whether written or oral, between the parties relating to the
Subject matter hereof.
13.12
Headings; References. The headings at the beginning of each
section of this Agreement, appendices, attachments. and/or exhibits, are solely
for convenience and are not part of the Agreement.
13.13
Number and Gender. In this Agreement, the singular will
include the plural and vice versa and each gender will include the
other.
l3.14
Construction. This Agreement is the product of negotiation and
preparation by and among the parties hereto and their respective
attorneys. The parties expressly acknowledge and agree that this
Agreement shall not be deemed prepared or drafted by any one party and will
be
construed accordingly,
13.15
Representation. Each party is represented by independent legal
counsel or has been advised to seek the advice of independent legal counsel
and
executes this Agreement acting upon their independent judgment and/or upon
the
advice of their respective independent legal counsel, without any
representation, express or implied, of any kind or nature, except as only
specifically set forth herein.
13.16
Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original but all of which
shall constitute one and the same agreement.
13.17
Modification. This Agreement may be modified or amended only
by mutual written consent of the parties.
13.18 Legal
Relationship. The Contractor shall be an independent contractor
with respect to the Company and shall not be an employee or agent of the
Company. The Contractor shall not be entitled to benefits, compensation, or
shares of stock from the Company except as set forth in this Agreement and
shall
in no event to any fringe benefits payable to employees of the
Company.
13.19
Limitation of Powers. Neither the Contractor nor its personnel
shall have the authority to act as an agent or representative of the Company
in
dealing with third parties. The Contractor and its employees are
independent contractors, and not employees, agents or representatives of the
Company. The Contractor mid its personnel shall have no authority to
bind the Company to contracts or incur any other legal obligation on the
Company’s behalf, and any such contracts or obligations so incurred by the
Contractor or its personnel shall be void. The Contractor shall at
all times represent and disclose to third parties that it is an independent
contractor of the Company, and not all agent or representative of the
Company.
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized representatives.
| POCKETFINDER, LLC | AERO TECHNOLOGY UK LTD | |||
| (The Company) | (The Contractor) | |||
|
/s/
Xxxxxx
Xxxxxxx
|
/s/
Xxxxx
Xxxxxx
|
|||
|
Title: President
|
Title:
Managing
Director
|
|||
|
Date: May
1,
2007
|
Date:
_________________________
|
10
Appendix
I
The
Product - PocketFinder
The
PocketFinder shall be a personal cellular device capable of receiving incoming
data messages from a remote party and responding to such messages with a data
message containing the devices current location information obtained using
GPS
technology as discussed with and described to the Contractor.
Initial
Specification Target
X XXX/XXXX/XXX
- Xxxxxxxxx Xx 000/0000 & 000/0000
X On
Board GPS
Ÿ Approx
Dimensions: 35mm DIA x 15 min Width
X Xxxxxx: 00
xxxxxx
X Stand
by / in use time: 200 hrs
X Xxxxxxx: 0.0X
Xx-xxx, 000xXx
X Charger
Input: DC5.2V, 600mA Output: DC 4.2V, 400mA
Ÿ V-SIM
or Permanent Mini SIM (3/1.8V)
X Xxxxxxx
Xxxx Xxxxx - 00 degrees to + 200 degrees
Ÿ Water
Proof
Ÿ Extreme
Shock Resistant
Ÿ Inductive
Charge System
Ÿ FCC,
CE, IC, CCC and PTCRB approvals
11
Appendix
II
Payment
&Timescales
The
Company shall pay to the Contractor the total of $1,200,000 USD and 250,000
common shares of company stock in the following manner:
|
1)
|
$25,000
USD Start of project (Stage 1) Black
box testing unit: Due date - Aug 00 0000 -0 50,000
shares
|
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2)
|
$250,000
USD on completion of 250 Enfora GPRS devices + 50,000 shares (Stage
2)
|
|
3)
|
$250,000
USD on completion of pre-production run + 50,000 shares (Stage 3)
Pilot
run(l): Due date - Oct 31st,
2007
|
|
4)
|
$250,000
USD on completion of 1000 unit initial production run + 50,000 shares
(Stage 4) Pilot run for Gov approvals: Due date - Nov 30th
2007
|
|
5)
|
$200,000
USD on completion of initial PO manufacturing + 50,000 shares (Stage
5) :
Due date - Jan 4th 2008
|
Further
Payments may include the following:
ADDITIONAL
GSM LICENSING COSTS / IPR COSTS
ADDITIONAL
FCC/CE/Cl APPROVALS
ADDITIONAL
SAMPLES OR PRODUCTION UNITS
ADDITIONAL
WORK NOT COVERED IN INITIAL SPECIFICATION
12
Appendix
III
Procurement
of Additional Products & Services
The
Company may from time to time procure additional products and services required
to see the product into mass production additional to those set out in Appendix
II.
13
Appendix
IV
PRODUCT
IMAGES
14
Appendix
V
All
third
party suppliers of the Contractor actively involved in the design of the product
shall duly execute a copy of the following NON-DISCLOSURE
AGREEMENT:
15
NON-DISCLOSURE
AGREEMENT
THIS
NON-DISCLOSURE AGREEMENT (“NDA”) is hereby executed and effective as of May 15th
2007 (“The Effective Date”) by and between PocketFinder, LLC, a business at 0000
Xxxx Xx Xxxxx Xxxxxx, Xxxxxxx, XX. 00000 (“Principal”), and Aero Technology UK
Ltd conducting business at 0X Xxxx Xxxxx Xxxx, Xxxxxx, Xxxxxxxxxxxxx, Xxxxxxx
(“Recipient”), for the purpose of protecting Principal’s pending or vested
patent rights, trademark rights, copyrights, and any other intellectual property
rights, and any proprietary information rights wherein the proprietary
information rights include, but are not limited to, Principal’s private and
confidential business information related to any business discussions
anticipated by this NDA (“Subject Matter”) and is disclosed solely for the
purpose of exploring a potential business relationship.
Any
information (‘‘Information”), related to Subject Matter, to be provided to
Recipient by Principal, hereunder, is deemed to be proprietary to, and
confidential by, Principal, and is disclosed by Principal to Recipient solely
for the purpose of fabricating a prototype or Product.
In
consideration of the disclosures of Information made by Principal, the parties
agree as follows:
1. Recipient
agrees that it will not, except with the prior written permission of Principal,
release, disclose, nor publish the Information delivered to, or made available
to. Recipient in accordance with this NDA.
2. Recipient
further agrees to receive such Information solely for purposes provided in
this
NDA and. to make no further use of Information except as agreed to in writing
by
Principal. Both parties agree that, for a period of fifteen (15)
years from the signing of this NDA, Recipient shall not enter into any NDA
with,
or negotiate with, any third party concerning Subject Matter of this
NDA.
3. Recipient
agrees to use at least the same degree of reasonable care for protecting and
for
preventing disclosure of the existence of this NDA or of Information supplied
by
Principal under this NDA to any third party as Recipient uses for protecting
and
for preventing disclosure of its own most confidential and proprietary
information of whatever nature. The obligation to protect and to
prevent disclosure under this NDA shall continue for a term of fifteen (15)
years from the date of last communication of Information hereunder, except
where
the Recipient can show that such Information has been known publicly at the
time
of disclosure, already developed by the Recipient at the time of disclosure
without reference to the Subject Matter, prior written authorization to disclose
and has been duly executed by the Principal, or Principal has already disclosed
such information to a third party at time of disclosure on a non-confidential
basis.
4. Recipient
agrees to disclose the Information to only those of its employees who have
a
need to know for the purposes herein set forth. Recipient will inform its
employees, to whom such Information is disclosed, of the confidential nature
of
the Information and of this NDA, and of their personal obligation not to
disclose nor use such Information except as herein provided.
16
5. Recipient
and Principal agree that this NDA or any acts pursuant hereto shall constitute
neither a joint venture nor a partnership relationship between the parties
and
that this NDA may not be modified except upon written amendment which has been
duly executed by authorized representatives of both parties.
6. All
writings, machine readable data, electronic records, verbal communication
records, non-verbal communications (for instance, photographs, micrographs,
recorded images, schematic, tables, spreadsheets, graphs, and drawings), audio
recordings, video recordings, or audiovisual recordings (“Writings”), containing
Information provided pursuant to this NDA, and any and all copies of such
Writings, made by Principal, shall be and remain the property of Principal
and
shall be returned to Principal immediately upon request, or shall be destroyed
after they are no longer useful for the purpose of the disclosure.
7. Nothing
in this NDA shall be construed as granting or conferring any license or right,
whether express or implied, in any invention, discovery, or improvement, arising
from Information, other than as expressly herein recited. Nothing in
this NINA shall be construed as assigning any interest, whether express or
implied, in any invention, discovery, or improvement, arising from Information,
other than as expressly herein recited.
8. Principal
warrants that he has the right to disclose Information hereunder
provided.
9. Recipient
and Principal agree that this NDA shall be applied, construed, and enforced
in
accordance with the laws of the State of California, excluding giving effect
to
the choice of’ law rules of’ California. The parties agree and
acknowledge that this NINA has been entered into in the County of Orange,
California and that such county shall be the exclusive venue for any litigation
related to or arising from this NDA. Further, the Contractor
expressly acknowledges and agrees that it has sufficient contacts with
California to make it subject to personal jurisdiction within California with
respect to any dispute between the Company and the Contractor, and the
Contractor expressly consents to such jurisdiction. The parties
further acknowledge and agree that this NDA and the rights and obligations
of
the parties hereunder will be construed in accordance with and governed by
the
laws of California, without giving effect to the choice of law rules of
California.
10. The
parties agree that upon the written demand of any party, whether made before
or
after the institution of any legal proceedings, but prior to the rendering
of
any judgment in that proceeding, all disputes, claims and controversies between
them, whether individual, joint, or class in nature, arising from this NDA
or
otherwise, including, without limitation, contract disputes and tort claims,
shall be resolved by binding arbitration pursuant to the Commercial Rules of
the
American Arbitration Association, Any arbitration proceeding held pursuant
to
this arbitration provision shall be conducted in the city nearest Company’s
address having an AAA regional office, or at any other place selected by mutual
agreement of the parties. This arbitration provision shall not limit
the right of either party during any dispute, claim or controversy to seek,
use,
and employ ancillary or preliminary rights and/or remedies, judicial or
otherwise, for the purposes of realizing upon, preserving, protecting, and
its
rights under this NDA, and any such action shall not be deemed an election
of
remedies. Such remedies include, without limitation, obtaining
injunctive relief or a temporary restraining order. Judgment upon any award
rendered by any arbitrator may be entered in any court having
jurisdiction. Nothing in this arbitration provision shall preclude
any party from seeking equitable relief from a court of competent
jurisdiction. The statute of limitations, estoppel, waiver, laches
and similar doctrines which would otherwise be applicable in an action brought
by a party shall be applicable in any arbitration proceeding, and the
commencement of an arbitration proceeding shall be deemed the commencement
of
any action for these purposes. The Federal Arbitration Act (Title 9
of the United States Code) shall apply to the construction, interpretation,
and
enforcement of this arbitration provision.
17
11. THE
PARTIES HEREBY VOLUNTARILY, KNOWINGLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE
ANY
RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) BETWEEN OR AMONG ‘THEM ARISING OUT OF OR IN ANY WAY
RELATED TO THIS NDA OR ANY OTHER RELATED DOCUMENT. THIS PROVISION IS
A MATERIAL INDUCEMENT TO EACH PARTY TO ENTER INTO THE NDA.
IN
WITNESS WHEREOF, the parties have caused this NDA to be executed by their duly
authorized representatives.
| POCKETFINDER, LLC | AERO TECHNOLOGY UK LTD | |||
| (The Principal) | (The Recipient) | |||
|
/s/
Xxxxxx
Xxxxxxx
|
/s/
Xxxxx
Xxxxxx
|
|||
|
Title: President
|
Title: Managing
Director
|
|||
|
Date: May
1,
2007
|
Date:
_________________________
|
18
