This Value Added Reseller Agreement (“AGREEMENT”) dated May 14, 2004. Between Alternate Energy Corporation (“AEC”) a Canadian corporation having its head office at 3325 North Service Rd. Unit # 105, Burlington, Ontario, Canada and Astris Energi Inc....
EXHIBIT
10.11
This
Value
Added Reseller Agreement
(“AGREEMENT”)
dated
May 14, 2004.
Between
Alternate
Energy Corporation (“AEC”)
a
Canadian corporation having its head office at 0000 Xxxxx Xxxxxxx Xx. Xxxx
#
000, Xxxxxxxxxx, Xxxxxxx, Xxxxxx
and
Astris
Energi Inc. (“ASTRIS”),
an
Ontario corporation having its head office at
0000-0
Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxxxx
Whereas:
| 1. |
ASTRIS
is a world leader in the development and practice of Alkaline Fuel
Cell
(AFC) technology with more than twenty years of progressive experience,
and produces a power generator (the “ASTRIS AFC
Power Generator”)
and related products, and
|
| 2. |
AEC
has a hydrogen production technology (the “AEC
Hydrogen Generator”),
and
|
| 3. |
AEC
intends to act as a Value Added Reseller for ASTRIS AFC Power Generator
products, and
|
| 4. |
AEC
and ASTRIS intend to build complete units that integrate both AEC
and
ASTRIS technologies in a single form factor after ASTRIS can deliver
production of its ASTRIS AFC Power Generators in reasonable
quantities.
|
Therefore:
| 1. |
Cooperation.
AEC and ASTRIS (the “Parties”)
intend to cooperate in creating a single integrated unit based on
technologies of both AEC and ASTRIS. Such cooperation shall include,
but
not be limited to:
|
| a. |
During
the term of this agreement, AEC
will:
|
| i. |
Act
as a Value Added Reseller for ASTRIS AFC Power Generators,
and
|
| ii. |
Ensure
that all products that include any part of ASTRIS technology are
appropriately identified with ASTRIS logo and/or ASTRIS trademarks
in
accordance with the prior written approval of ASTRIS,
and
|
| iii. |
Agree
to submit to ASTRIS, in advance of any proposed use, samples of its
use of
the ASTRIS logo and/or ASTRIS trademarks for review in accordance
with
Section 7 below.
|
| iv. |
Attend
necessary training at ASTRIS
facility.
|
| b. |
During
the term of this agreement, ASTRIS
will:
|
| i. |
Provide
current specification sheet(s) and publicity material of relevant
ASTRIS
technology to AEC, and
|
| ii. |
Sell
to AEC at current market prices and current delivery times ASTRIS
AFC
Power Generator(s), and
|
| iii. |
Provide
training to AEC representatives onsite at ASTRIS head office,
and
|
| iv. |
As
required by AEC, provide onsite and/or remote
support.
|
| 2. |
Compensation/Costs.
The Parties agree as follows regarding the compensation and costs
related
to this agreement:
|
| a. |
AEC
will be responsible for:
|
| i. |
Costs
related to purchase of ASTRIS AFC Power Generator units,
and
|
| ii. |
Costs
related to shipping of ASTRIS AFC Power Generator units from the
Mississauga, Ontario head office of ASTRIS,
and
|
| iii. |
Direct
costs of training or support provided by ASTRIS,
and
|
| iv. |
Indirect
costs of training or support incurred by ASTRIS at cost, including
but not
limited to travel, lodging, meals and sundry,
and
|
| v. |
All
costs related to integration of AEC and ASTRIS technologies;
and
|
| vi. |
All
taxes payable on all such amounts.
|
All
costs
shall be pre-approved in writing by AEC which approval shall not be unreasonably
withheld or unduly delayed.
| b. |
Terms
of payment will be consistent with ASTRIS’ current market terms at the
time of order of any products or services, which are subject to change
in
ASTRIS’ sole discretion at any time, and presently
require:
|
| i. |
40%
deposit at time of order, and
|
| ii. |
Complete
payment at time of delivery.
|
| c. |
Terms
of delivery will be consistent with ASTRIS’ current market terms at the
time of order of any products or services and presently require a
delivery
time of 6 months from time of order accompanied by
deposit.
|
-2-
| 3. |
Intellectual
Property.
It
is the intention of the Parties that no intellectual property shall
be
created as a result of this agreement. In the event the Parties engage
in
activities that create any intellectual property, unless otherwise
set out
in writing between the Parties, the Parties agree as
follows:
|
| a. |
all
intellectual property created or established as a result of this
agreement
that relates primarily to the ASTRIS AFC Power Generators shall be
owned
by, and be the exclusive property of, ASTRIS
alone;
|
| b. |
all
intellectual property created or established as a result of this
agreement
that relates primarily to the AEC Hydrogen Generators shall be owned
by,
and be the exclusive property of, AEC alone;
and
|
| c. |
all
other intellectual property created or established as a result of
this
agreement shall be owned by the creator (ASTRIS or AEC) of said
intellectual property;
|
Each
Party hereto agrees
at
all times, before and after the termination of this agreement, to assist, and
shall cause its officers,
directors, employees, representatives, agents and advisors at all times to
assist, upon request, a Party who has gained ownership of any intellectual
property in accordance with the foregoing,
or its
designate, at the requesting Party’s expense, to secure the requesting Party’s
rights in such intellectual property and any copyrights, patents, trademarks
or
other intellectual property rights relating thereto in any and all countries.
The obligations of the Parties set out in this section shall survive termination
of this agreement indefinitely.
| 4. |
Terms/Conditions.
The Parties agree as follows regarding the term of this agreement
and
conditions associated with this
agreement:
|
| a. |
The
term of this agreement is one year from its effective
date.
|
| b. |
This
agreement shall be extended for an additional one year term unless
otherwise terminated by either Party in accordance with Section
11.
|
| 5. |
Confidentiality
and Restricted Use of Confidential Information- AEC.
For the purposes of this agreement, “Confidential
Information”includes,
without limitation, information concerning the customers and accounts
of
the Parties, the purchase and sale prices or lists, methods, techniques,
processes and trade secrets of the Parties, discoveries, concepts
and
ideas including, without limitation, the nature and results of research
and development activities, formulas, inventions, technology, “know-how”,
designs, drawings and specifications, and the marketing and selling
strategies of the Parties, in any medium whatsoever. AEC
shall treat all Confidential Information furnished, or to be furnished,
to
AEC in any medium whatsoever in accordance with the provisions of
this
agreement, and to take, or abstain from taking, the other actions
as set
forth in this paragraph. The Confidential Information shall be used
by AEC
solely for the purpose of performing AEC’s obligations under this
agreement and absolutely for no other purpose whatsoever, and will
be kept
strictly
confidential
by
AEC and its officers, directors, employees, representatives, agents
and
advisors; provided
that
(i) any of such Confidential Information may be disclosed to the
AEC’s
officers, directors, employees, representatives, agents and advisors
who
need to know such Confidential Information for the purpose of performing
AEC’s obligations under this agreement, (ii) such Confidential Information
may be otherwise disclosed to the extent that ASTRIS may expressly
consent
in writing prior to such disclosure, and (iii) such Confidential
Information may be disclosed to the extent required by law. Upon
any
termination of this agreement in accordance with its terms, AEC and
its
officers, directors, employees, representatives, agents and advisors
shall
immediately return to ASTRIS all
material containing or reflecting the Confidential Information disclosed
by ASTRIS in all mediums and immediately cease any use of such
Confidential Information, ASTRIS logo and/or ASTRIS trademarks. The
obligations set out in this paragraph shall survive
indefinitely.
|
-3-
| 6. |
Confidentiality
and Restricted Use of Confidential Information- ASTRIS. ASTRIS
shall treat all Confidential Information furnished, or to be furnished,
to
ASTRIS in any medium whatsoever in accordance with the provisions
of this
agreement, and to take, or abstain from taking, the other actions
as set
forth in this paragraph. The Confidential Information shall be used
by
ASTRIS solely for the purpose of performing ASTRIS’s obligations under
this agreement and absolutely for no other purpose whatsoever, and
will be
kept strictly
confidential
by
ASTRIS and its officers, directors, employees, representatives, agents
and
advisors; provided
that
(i) any of such Confidential Information may be disclosed to ASTRIS’s
officers, directors, employees, representatives, agents and advisors
who
need to know such Confidential Information for the purpose of performing
ASTRIS’s obligations under this agreement, (ii) such Confidential
Information may be otherwise disclosed to the extent that AEC may
expressly consent in writing prior to such disclosure, and (iii)
such
Confidential Information may be disclosed to the extent required
by law.
Upon any termination of this agreement in accordance with its terms,
ASTRIS and its officers, directors, employees, representatives, agents
and
advisors shall immediately return to AEC all
material containing or reflecting the Confidential Information disclosed
by AEC in all mediums and immediately cease any use of such Confidential
Information, AEC logo and/or AEC trademarks.. The obligations set
out in
this paragraph shall survive
indefinitely.
|
| 7. |
Trademarks.
|
|
a.
|
Ownership. All
trademarks, service marks, trade names, logos or other words or symbols
identifying the products or ASTRIS’s business (the “Marks”) are and will
remain the exclusive property of ASTRIS. AEC will not take any action
that
jeopardizes ASTRIS’s proprietary rights or acquire any right in the Marks,
except the limited use rights specified in paragraph 1a. above.
AEC
will not register, directly or indirectly, any trademark, service
xxxx,
trade name, copyright, company name or other proprietary or commercial
right which is identical or confusingly similar to the Marks or which
constitute translations thereof.
|
|
b.
|
Use. AEC
will use the Marks exclusively in accordance with paragraph 1a.
above. All advertisements and promotional materials will (i) clearly
identify ASTRIS as the owner of the Marks, (ii) conform to
ASTRIS's
then-current trademark and logo guidelines and (iii) otherwise
comply
with any local notice or marking requirement contemplated under the
laws
of the territory in which any products are sold. Before publishing
or
disseminating any advertisement or promotional materials bearing
a Xxxx,
AEC will deliver a sample of the advertisement or promotional materials
to
ASTRIS for prior approval. If ASTRIS notifies AEC that the use of
the Xxxx
is inappropriate, in ASTRIS’s sole discretion, AEC will not publish or
otherwise disseminate the advertisement or promotional material until
they
have been modified to ASTRIS's satisfaction in
writing.
|
| 8. |
Remedies.
The Parties hereby agree that in the event of a breach of the foregoing
Sections 5 through 7 inclusive, the non-breaching Party shall have
the
right to seek a court order to prevent any further breach, including
the
ability to obtain injunctive relief without the necessity of posting
a
bond. Each Party shall indemnify and hold harmless the other from
and
against any and all loss, liability, cost, attorneys’ fees or expense
based upon, arising out of or otherwise in respect of any breach
or
violation of this agreement.
|
| 9. |
Warranty
and Disclaimer. ASTRIS gives no warranty with respect to the workmanship,
merchantability or fitness for a particular purpose of the ASTRIS
power
generators where same have been incorporated into any product produced
by
AEC. ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND
GUARANTEES WITH RESPECT TO THE PRODUCTS, WHETHER EXPRESS OR IMPLIED,
ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY ASTRIS
OR
OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE)
ARE
HEREBY OVERRIDDEN, EXCLUDED AND DISCLAIMED.
Except for payment obligations, a Party will not be liable for any
failure
or delay in performing an obligation that is due to causes beyond
its
reasonable control, so long as the party gives prompt notice to the
other
party and makes all reasonable efforts to perform. IN NO EVENT WILL
A
PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, MORAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT
NOT
LIMITED TO, LOST PROFIT.
|
-4-
| 10. |
Public
Announcements.
The parties hereto agree that neither they nor any of their respective
subsidiaries, officers, directors, employees or agents shall disclose
to
any third party or publicly announce the proposed Agreement until
such
time as the parties hereto agree in writing to make such disclosure
or
announcement or unless otherwise required by law or regulation. Any
public
announcement concerning the proposed Agreement shall be approved
in
advance by appropriate officers of the parties
hereto.
|
| 11. |
Termination. This
agreement may be terminated at any time upon delivery of not less
than
30-day written notification of either of the parties hereto. Sections
3,
5, 6, 7, 8 and 9 shall survive any termination of this agreement.
Upon any
termination of this agreement, AEC shall immediately pay ASTRIS all
due
and outstanding amounts, and AEC will, at ASTRIS's option, destroy
or
deliver to ASTRIS or its designee all items within AEC's possession
or
control that contain any Confidential Information or bear a Xxxx
and shall
cease using all Marks.
|
| 12. |
U.S.
Export Restrictions. AEC
acknowledges that the products supplied by ASTRIS hereunder and all
related technical information, documents and materials may be subject
to
export controls under the U.S. Export Administration Regulations.
Where
such products are subject to such controls, AEC will (i) comply
strictly with all legal requirements established under these controls,
and
(ii) cooperate fully with ASTRIS in any official or unofficial
audit
or inspection that relates to these controls, and (iii) not
export or
re-export any such products without the appropriate United States
and
foreign governmental licenses or approval.
|
| 13. |
Status
of Parties.
The Parties acknowledge that they are independent contracting parties,
and
this agreement shall not constitute any such party as an agent,
representative, partner, co-venturer, employee, employer or franchisee
of
the other party, except as expressly provided for herein. Neither
party
shall assume or create any obligation or responsibility whatsoever
on
behalf of, or in the name of, the other party except as otherwise
provided
for herein.
|
| 14. |
Assignment
and Binding Effect.
This agreement shall be binding upon and enure to the benefit of
the
Parties and their respective successors and permitted assigns, if
any, as
the case may be. This agreement may not be assigned by either Party
without the prior written consent of all other
parties.
|
| 15. |
-5-
| 16. |
Notice.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and, if mailed by prepaid first-class
mail
at any time other than during a general discontinuance of postal
service
due to strike, lockout or otherwise, shall be sent to the other Party
at
the last known address of the other Party and be deemed to have been
received five (5) business days after the post-marked date thereof,
or if
telecopied, emailed or delivered by another form of recorded
communication, shall be deemed to have been received on the next
business
day following dispatch and acknowledgement of receipt by the recipient’s
telecopier machine or other form of recorded communication, or if
delivered by hand shall be deemed to have been received at the time
it is
delivered. If either Party changes its address during the term of
this
agreement, it shall immediately notify the other Party of such change
of
address in the foregoing manner.
|
The
above
constitutes the full and complete agreement between AEC and ASTRIS.
This
agreement is subject to the approvals of the respective Boards of Directors
of
the Parties if such is required.
Agreed
and accepted this ________ day of _____________, 2004 by:
| ASTRIS ENERGI INCORPORATED | ALTERNATE ENERGY CORPORATION | ||
| per: | per: | ||
|
|
|
||
|
Xxxx
X. Nor – President and CEO
Astris Energi Inc. |
Xxxxxx
Xxxxxx – Chairman and CEO
Alternate Energy Corp. |
-6-
