WORLDWIDE MARKETING AGREEMENT
THIS AGREEMENT made this ____ day of _____________, 1994, at Little
Rock, Arkansas, between Innotek Corporation ("Innotek"), 0000 Xxxxx
Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 and Xxxxxx Xxxxxxx USA
Corporation ("Xxxxxx Xxxxxxx"), Xxxxxxxxxx Xxxxxxxxx Xxxx, Xxxxxxx,
Xxx Xxxxxx 00000-0000.
Witnesseth:
WHEREAS, Innotek owns the exclusive licensing right worldwide
(except in Japan in the case of STORS) pursuant to an agreement
with Battelle Memorial Institute ("Battelle") to market, develop
and commercialize the sewage to oil recovery system (STORS)/NitRem
(nitrogen removal) and associated processes involving the dual
shell pressure balanced vessel (DSPBV) all of which is collectively
referred to as the "Technology"; and
WHEREAS, Innotek and Xxxxxx Xxxxxxx is desirous of entering into a
joint marketing agreement for the purposes of marketing, developing
and commercializing the Technology, including, but not limited to,
the Department of Defense, the Department of Energy and other
existing or potential clients of Xxxxxx Xxxxxxx on a worldwide
basis.
WHEREAS, Innotek will have to disclose to Xxxxxx Xxxxxxx
confidential and technical information regarding the Technology,
which Innotek considers to be a proprietary and valuable commercial
asset of the corporation;
WHEREAS, Xxxxxx Xxxxxxx has certain expertise in the design,
engineering, procurement, construction and operation of a wide
range of processing facilities as well as extensive contact with
the industries likely to use the Technology.
NOW, THEREFORE, in consideration of the below-listed covenants, and
for other good and valuable consideration, the parties agree as
follows:
IT IS AGREED between the parties, for themselves, their successors,
legal representatives and assigns, that the parties' joint
marketing venture shall be upon the following terms and conditions:
1. Xxxxxx Xxxxxxx will work with Innotek to identify and
develop marketing strategies for the commercialization of
the Technology. Based on this understanding, Xxxxxx
Xxxxxxx will submit joint proposals with Innotek to the
Department of Energy, the Department of Defense and other
agency, utility, municipal and industrial clients as
appropriate after having mutually identified commercially
attractive opportunities for the Technology.
2. Xxxxxx Xxxxxxx shall use its best efforts to introduce
the Technology into the market to make this venture
successful and profitable. When potential projects are
identified, Innotek and Xxxxxx Xxxxxxx will agree on
those for which a proposal will be submitted. Innotek
will supply the basis of the process design and Xxxxxx
Xxxxxxx will design, procure and construct the required
processing facilities necessary to fulfill the
requirements.
3. Where proposals are submitted, Xxxxxx Xxxxxxx shall carry
out all necessary work based on process and design
information supplied by Innotek, with each party
absorbing their own costs associated with this task. The
entity submitting each proposal will be agreed on an
case-by-case basis.
4. Commercial terms, guarantees and warranties, project
costs and fees associated with any and all proposals with
respect to the supply of the Technology to prospective
clients shall be agreed to between the parties prior to
the submission of proposals.
5. Each party agrees to hold in confidence any and all
technical information, data, knowhow, drawings,
specifications, operating manuals, process design and
calculations disclosed to it by the other party and/or
its affiliates either directly or indirectly in
connection with the marketing, construction, financing or
operation of facilities using the Technology and agrees
not to use such information for purposes other than those
specified in this Agreement provided, however, that these
obligations shall not apply to:
a. Information which at the time of disclosure is in
the public domain
b. Information which, after disclosure, becomes part
of the public domain
c. Information which the receiving party hereto can
show was in its possession at the time of the
disclosure and was not acquired directly or
indirectly from the other party hereto, and
d. Information which has been or is now or later
acquired by or made known to a party hereto by a
third party as a matter of right and who did not
receive such information from the other party
hereto.
6. Xxxxxx Xxxxxxx understands in receiving confidential
information that it receives no right to a license,
implied or otherwise, under any patents, know-how, trade
secrets, or other intellectual property now or
hereinafter owned or controlled by Innotek.
7. Both Innotek and Xxxxxx Xxxxxxx shall conduct coordinated
marketing activities, jointly and separately, keeping the
other party fully informed of possible business
opportunities with each partner bearing the
responsibility of paying their own expenses including
travel, lodging and incidental costs. Continuing at
mutually agreed times and locations, Innotek will conduct
product training seminars for Xxxxxx Xxxxxxx marketing
representatives. Innotek and Xxxxxx Xxxxxxx will jointly
approve all product literature, sales and advertising
materials on the Technology where the other company's
name appears or is used in the material. The cost of
marketing and advertising material shall be shared on an
appropriate cost basis.
8. Innotek's designated marketing engineer will interface
directly with Xxxxxx Xxxxxxx sales/marketing staff to
provide technical training, assistance, relate any
technical update on the technologies and otherwise assist
in all marketing activities. Xxxxxx Xxxxxxx will
designate staff specifically to coordinate its activities
with respect to the Technology, including gathering
relevant technical data, etc., and interface with Innotek
designated marketing representatives.
9. Designated marketing persons will work together on such
aspects as to establish program continuity, target
markets, advise each other on a regular basis as to
specific business opportunities, mutually agreeing on the
timing and type of response appropriate in each specific
case, as well as appropriate follow-up. They will also
assess market feedback which will be used to focus future
marketing efforts, design and type of marketing/sales
tools, etc. The aim is to establish a core team
specializing in the Technology.
10. Xxxxxx Xxxxxxx shall have the option to include one or
more other companies in its international organization in
the marketing, tendering and/or project execution phases
where it is appropriate.
11. The parties agree that the term of the Agreement shall be
for an initial ten (10) year period from the date of this
document, and shall be automatically extended in three-
year periods thereafter. The confidentiality obligations
contained in this Agreement shall survive such
termination of this Agreement. Notwithstanding the
above, should events demonstrate that there is no
potential market to support this collaboration the
parties may mutually agree to change this Agreement.
Furthermore, should the situation of one of the parties
change with respect to the Technology, the parties will
jointly review the matter and may mutually agree to
terminate this Agreement on six months' notice (in
writing) by either party. Such termination shall not
apply to any projects in progress which shall be carried
to completion.
12. This Agreement is nonexclusive. However, Xxxxxx Xxxxxxx
and Innotek agree to begin discussions regarding an
exclusive business arrangement by the end of 1994 based
on the concepts contained in this Agreement. This
Agreement contains the entire agreement of the parties
with respect to the subject matter hereof and will be
construed in all respects in accordance with the laws of
the State of Arkansas. Notices, demands and
communications hereunder to Innotek or Xxxxxx Xxxxxxx
must be given and sent, and shall be deemed to have been
given or sent, by mailing to the following addresses:
Innotek Corporation
0000 Xxxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Xxxxxx Xxxxxxx USA Corporation
Xxxxxxxxxx Xxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000-0000
INNOTEK CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------
Xxxxxx X. Xxxxxx, Chairman
XXXXXX XXXXXXX USA CORPORATION
By: /s/ X. Xxxxxxx
--------------------------------
X. Xxxxxxx, President