Exhibit 10.11
MARKETING and LICENSE AGREEMENT
THIS AGREEMENT, effective this 1st day of May 2002 ("Agreement Date"), is
between Tradewinds Oil and Gas International, Ltd. ("Tradewinds"), a Texas
limited partnership having offices at 0000 Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 or its Designee, and Imperial Petroleum Recovery Corporation ("Imperial"),
a Nevada corporation having offices at 0000 Xxxxx Xxxxxxxxx Xxxxx, Xxxxxxx,
Xxxxx 00000.
1. BACKGROUND
1.1 Imperial has developed certain Microwave Separation Technology (MST)
for breaking or separating Emulsions based on microwave energy and has the
capability, as hereinafter defined, to market, make or have made Microwave
Separation Technology Equipment for leasing, licensing or sale to MST Customers,
and to provide MST Technical and MST Maintenance Support to MST Customers
leasing, licensing or purchasing the Microwave Separation Technology Equipment;
1.2 Tradewinds and its affiliates have the capabilities, hereinafter
defined, to market Microwave Separation Technology Equipment in the Field of
Use;
1.3 Imperial, hereby, appoints Tradewinds to be its exclusive licensee
having exclusive use of the Microwave Separation Technology (MST) within the
nations of Indonesia and Singapore for Microwave Separation Technology Equipment
products in the Field of Use, and to work closely with Tradewinds in the
research, development and testing of such products on the terms and conditions
set forth in this Agreement. Tradewinds accepts such appointment.
NOW, THEREFORE, intending to be legally bound, Imperial and Tradewinds
agree as follows:
2. DEFINITIONS
2.1 Microwave Separation Technology means patented equipment, processes,
trade secrets, and know how, pertaining to Imperial Intellectual Property
Rights, for separating or breaking emulsions using microwave energy.
2.2 Microwave Separation Technology Unit (MSTU)
a. The MSTU means Microwave Separation Technology Equipment that contains
a microwave transmitter having a total power output of up to
seventy-five (75) kilowatts (designated MST-1000), or more if
commercially available. Microwave Separation Technology Equipment
having two or more Microwave Separation Technology Units would contain
microwave transmitters having total power output up to 75 kilowatts
multiplied by the number of units.
b. The MSTU will generally include a system for exposing sludge or an
Emulsion to microwave energy such as a microwave generator, wave
guides, an applicator, pump, piping and electrical that may be
connected to at least one holding tank and/or a separation device for
processing organic liquids, aqueous liquids and/or solids. This term,
MSTU, is interchangeable with "Product".
2.3 Field of Use means any process or operation related to: recovering
hydrocarbons from a naturally occurring reservoir or similar natural source;
which will allow refining of such hydrocarbons into intermediates, such as a gas
oil, or final products, such as gasoline; and/or manufacturing of petrochemicals
and/or petrochemical feedstocks. Field of use includes the clean up and recovery
of hydrocarbons due to spills, ruptures or similar events. Field of use includes
any process, within the petroleum and petrochemical industries, employing Radio
Frequency (RF) energy, jointly agreed to by Imperial and Tradewinds, to provide
a viable economic application for the MST technology. Applications may include,
but not be limited to, recovery of hydrocarbons from sludge tanks, sludge pits,
tanker / ship bottoms, as well as remediation of environmental problems created
by hydrocarbon spills, pipeline leaks, process upsets, and other hydrocarbon
related upsets.
2.4 "Product" or "Products" shall mean all products manufactured and
controlled by Imperial on the date of the execution of this Agreement and
includes any improvements or replacements to such products. It shall also
include all future products manufactured by Imperial with an application within
the Field of Use.
2.5 Territory shall mean nations of Indonesia and Singapore.
2.6 Term of Agreement shall mean the period during which this License
Agreement is in effect as set forth in Article 6, Section 6.2 and Article 12,
Section 12.1.
2.7 Emulsion means a petroleum material fed into the Microwave Separation
Technology Equipment containing a suspension of immiscible liquid phases, and/or
a suspension of one or more solids and one or more liquid phases.
2.8 Imperial Intellectual Property Rights mean all patents (including
patent applications), copyrights and trademarks for Microwave Separation
Technology owned by Imperial. Imperial Intellectual Property Rights include the
associated know how for making, using, sublicensing, leasing, marketing, and
selling Microwave Separation Technology.
2.9 MST Maintenance Support means all routine, preventive, and/or
emergency maintenance or service performed on Microwave Separation Technology
Equipment.
2.10 MST Customer means any lessee, licensee, or purchaser of Microwave
Separation Technology Equipment.
2.11 Cost of Product (COP) means the price for the purchase of Microwave
Separation Technology Equipment to include the MST equipment purchased, hood
boxing, port delivery to Houston, Houston port charges, agency and
documentation, insurance and ocean freight delivered ex quay port of (named port
of destination, for example Jakarta or Singapore), commissioning and start-up
engineering support, training and first year warranty maintenance related to
delivery of the MST system to the named Port of Destination (Delivered Ex Quay)
and the installation of the MST Equipment at the Customer's chosen location.
2.12 Tradewinds means Tradewinds Oil and Gas International, Ltd. a Texas
Limited Partnership and its Affiliates or Designee. The term "Affiliate" shall
mean any company, partnership or joint venture controlled by, controlling or
under common control with Tradewinds or any Tradewinds appointed Designee. For
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the purposes of this definition, "control" means the direct or indirect
beneficial ownership of fifty percent (50%) or more of the stock entitled to
vote in the election of directors or, if there is no such stock, fifty percent
(50%) or more of the ownership interest in such company, partnership or joint
venture.
2.13 MST Technical Support means all support provided by Imperial and / or
Tradewinds to MST Customers and potential MST Customers for MST Equipment or
Laboratory Technology that includes, but is not limited to, training of MST
Customer personnel, assistance during the start-up and testing of MST Equipment,
troubleshooting technical problems in an MST application that is not performing
to a MST Customer's satisfaction, response to a MST Customer's request for
technical assistance to optimize the MST Equipment, and technical support
services.
2.14 Equipment Cost means the costs as shown in Section 6.4 of major
equipment and fabrication labor necessary to construct MST Equipment, deliver
the system ex quay to the named port of destination, the commissioning and
start-up support required to prepare the system for operation, and operator
training costs.
2.15 Delivered Ex Quay (DEQ) means that the seller delivers when the goods
are placed at the disposal of the buyer not cleared for import on the quay
(wharf) at the named port of destination. The seller has to bear costs and risks
involved in bringing the goods to the named port of destination and discharging
the goods on the quay (wharf). The DEQ term requires the buyer to clear the
goods and pay for all formalities, duties taxes and other charges upon import.
3. RIGHTS GRANTED
3.1 Imperial grants Tradewinds, and Tradewinds accepts, subject to the
terms and conditions set forth, herein, including Paragraph 3.2, an exclusive
license and right to market Microwave Separation Technology under Imperial's
Intellectual Property Rights within the nations of Indonesia and Singapore. In
addition, if during the term of this agreement Tradewinds identifies and brings
to Imperial contracts for business within countries outside of Singapore and
Indonesia not represented on an exclusive basis by another entity, Tradewinds
shall be entitled to participate with Imperial in the business developed outside
of Indonesia and Singapore.
3.2 Imperial has extended its marketing agreement with ____________ to
permit them to market the MST within the __________ organization on a
non-exclusive basis. If Tradewinds markets MST units to _________ facilities
within Indonesia or Singapore, Tradewinds will pay the Cost of Product (COP) for
all units Tradewinds places within ___________ Singapore or Indonesian
operations.
3.3 Except as provided herein, Tradewinds shall be responsible for all
costs associated with the conduct of its marketing, including commissions or
other compensation to sales representatives employed by Tradewinds. Tradewinds
will be responsible for the costs incurred to move the MST equipment from the
Port of Destination within Indonesia or Singapore to the installation site, the
costs of site preparation, and the lodging, food, travel and living expenses
within Indonesia or Singapore for any Imperial Petroleum Recovery Corporation
personnel involved in the installation, training and equipment maintenance
efforts.
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4. SERVICES PROVIDED BY IMPERIAL
4.1 Imperial will be responsible for making or having made the Microwave
Separation Technology Equipment for each order placed by Tradewinds. Imperial
will oversee the manufacturing and delivery of Microwave Separation Technology
Equipment to the named port of destination (Delivered Ex Quay), defined for this
agreement as the port city identified by Tradewinds closest to the installation
site, capable of receiving and offloading the MST from the ocean going vessel
contracted to move the equipment from its manufactured location, or the Port of
Houston, Texas. Imperial will fabricate, test and commission the unit based upon
the information provided by Tradewinds for its customer's site. Tradewinds will
perform, or have performed the site preparation work and the installation and
connections required to operate the MST Unit. Imperial will train up to 10
operators in the use of the MST and insure that the unit is functioning properly
after installation. Imperial will provide a 12 month warranty on parts and
labor. Title to the Products shall vest in Buyer immediately upon payment to
Seller of the Cost of Product.
4.2 Imperial will provide, in a form that complies with industry
standards, an operating manual, safety manual, process flow diagrams, piping and
instrumentation diagrams, and wiring diagrams and will provide at least 20 hours
of training for each MST Customer. Imperial will also provide MST Technical
Support, as defined herein, to Tradewinds.
4.3 Imperial will provide to Tradewinds training as per Article 4.4,
technical and laboratory support with respect to the use, application and
quality of Product as specified by Imperial.
4.4 Imperial will provide at its cost MST Installation and Maintenance
Support, as defined herein, to each Tradewinds MST Customer. Imperial standard
overseas commissioning package provides field supervision for 2 engineers, for a
maximum of 34 days. Tradewinds will provide for commercial standard, local
lodging, transportation and meals. If installation requires more than 34 days,
the additional days will be billed to Tradewinds or its Designee at $1,000 per
engineer per day and Tradewinds will provide for commercial standard, local
lodging, transportation and meals. If onsite training is requested, the standard
operator-training package is presented in English and includes 14 days of
hands-on training for up to 10 operators. Additional engineering and training
support is available at $1,000 per engineer/instructor per day (travel to and
from, and onsite) plus airfare and lodging. The standard Maintenance Support
includes two semi-annual maintenance on-site inspections during the first twelve
months following commissioning. Imperial will bear all costs of the standard
Maintenance Support package except for the in-country expenses of
transportation, lodging and meals on a commercial standard basis incurred by the
engineer(s) assigned the maintenance and inspection function. The standard
packages may be modified as to number of Imperial personnel and days on site, as
requested by Tradewinds.
4.5 Imperial will provide and maintain bench unit test facilities and
personnel for testing Emulsions from potential MST Customers. Imperial will
coordinate with Tradewinds to obtain access to additional laboratory equipment
as may be required, from time to time, to provide adequate evaluation of MST
Customer emulsions.
5. SERVICES PROVIDED BY TRADEWINDS
5.1 Marketing. Tradewinds will use commercially reasonable efforts to
develop the market for the Microwave Separation Technology within Indonesia and
Singapore.
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5.2 Marketing services provided by Tradewinds shall include, but are not
limited to, developing a technology fact sheet, including Microwave Separation
Technology on the Tradewinds Web site, disseminating information related to
Microwave Separation Technology to sites partially or fully owned, operated or
serviced by Tradewinds. Tradewinds will also use reasonable efforts, at its own
discretion, to publicize Microwave Separation Technology, including presenting
papers and publications, and advertising.
5.3 Tradewinds will be responsible for the costs incurred once the MST
equipment has been Delivered Ex Quay (DEQ) at the named port of destination, to
clear customs and move the MST equipment to the installation site, the costs of
site preparation, and the lodging, food, travel and living expenses within
Indonesia or Singapore for any Imperial Petroleum Recovery Corporation personnel
involved in the installation, training and equipment maintenance efforts.
6. TERMS
6.1 Tradewinds will pay Imperial a licensing fee of _______________ for a
two year license agreement. In exchange for this and other consideration,
Imperial grants an exclusive license to Tradewinds to market Microwave
Separation Technology products within the Field of Use throughout Indonesia and
Singapore for two years beginning 1 May 2002 and running through 30 April 2004.
Tradewinds will prepay the licensing fee at a rate of ______________ per month
for six months beginning November 2001 and continuing through April 2002. The
sixth payment (April 2002, or earlier as determined by Tradewinds) will complete
the payment schedule for the two-year term of the agreement.
6.2 The license agreement is effective May 1, 2002 and runs for two years
through April 30, 2004. Contracts generated by Tradewinds in the Field of Use
within Indonesia and Singapore prior to May 1, 2002 will be honored for their
exclusivity to Tradewinds as if they were concluded on or after May 1, 2002.
6.3 The license agreement will be automatically renewed for two years if
Tradewinds purchases $______________ or more of MST equipment from Imperial,
excluding the monthly license fee, in the previous licensing agreement term. If
Tradewinds purchases, excluding the monthly license fee, from Imperial in the
previous licensing period have exceeded $________________ US, the license
agreement will be automatically renewed for four years. If Tradewinds purchases
are sufficient to automatically renew the license agreement, no additional
license fee will be required for the renewal period.
6.4 Tradewinds will order and purchase from Imperial all of its Microwave
Separation Technology (MST) units, spare parts and replacement items.
The Cost of Product (COP) will include the Equipment Cost, packaging for export,
insurance, transportation, and support staff for each system, which may include
both the MST and centrifuge (Alfa Laval OFPX 610) components as follows:
- For a MST-1000 (1 MST; 1 centrifuge) the COP is $___________ US dollars.
- For a MST-2000 (2 MST; 2 centrifuge) the COP is $___________ US dollars.
- For a MST-3000 (3 MST; 2 centrifuge) the COP is $___________ US dollars.
- For a MST-4000 (4 MST; 3 centrifuge) the COP is $___________ US dollars.
- The parties will negotiate the price for MST systems larger than a MST-4000
in good faith.
The Cost of Product for each system ordered will include, in addition to the
equipment cost, the costs for packing, insurance and shipment of goods to the
named port of destination, Delivered Ex Quay (DEQ), training client personnel in
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the use of the system, commissioning at the customer site, two maintenance
inspections within the first year of operation following the commissioning. A
spare parts package as requested by the client will be a separate cost. The Cost
of Product price list for this paragraph 6.4 may be adjusted periodically.
6.5 Tradewinds will pay to Imperial 20% of all net revenues generated from
each MST unit in service within Indonesia and Singapore commencing 24 months
from the date a unit is first commissioned and placed in service. Tradewinds
will make net revenue payments to Imperial within 30 days following the close of
each fiscal quarter in Tradewinds' fiscal year, with any annual adjustments made
at the close of the fiscal year. Net Revenue is defined as Gross Revenue less
Tradewinds' direct costs related to each individual MST. Net revenue will be
derived from the following sources:
- Tradewinds sale of MST units to a third party within Indonesia;
- Tradewinds leasing of MST units to a third party within Indonesia;
- Tradewinds use of MST units to solve its own operational problems or to
solve problems of other clients;
- Sale of oil or other recovered material by use of Imperial MST units.
7. INTELLECTUAL PROPERTY
7.1 Imperial will disclose to TRADEWINDS all of its patents, including,
applications, continuations, continuations-in-parts, divisionals, issued
patents, and foreign counterparts fully or partially owned by Imperial related
to treatment of Emulsions, sludge and any other application using microwave
energy.
8. SAFETY STANDARDS
8.1 TRADEWINDS will follow to the best of its ability all applicable
Indonesian standards for Process Safety Management regulations and all other
health and safety policies applicable to each MST Customer site.
8.2 Imperial will provide all warning devices and precautionary measures,
including emergency shutdown systems, that are required by United States law or
requested by Tradewinds to conform to Indonesian standards in following accepted
engineering practices to protect persons and property while installing and
operating Microwave Separation Technology Equipment and will meet all United
States performance and safety Requirements.
8.3 Imperial will make available a qualified professional to periodically
inspect the MST Equipment at MST Customer sites to determine that the MST
Equipment is in compliance with OSHA PSM Standards. This service initially will
be provided at Imperial's expense every six months for the first 12 months
following the commissioning of each unit, except that Tradewinds will provide
for in-country expenses such as commercial travel, commercial lodging, food and
any applicable governmental tolls. After the completion of the second inspection
concluding the first twelve month period, future inspections of each unit will
be at Tradewinds expense and at the daily rates charged by Imperial as shown in
Section 4.4 and will be available as required by Tradewinds. Summary reports
will be provided by Imperial to TRADEWINDS to document compliance, and for
informational and marketing purposes.
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9. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF IMPERIAL
Imperial hereby represents, warrants, and covenants to TRADEWINDS during
the Term of this Agreement and any extensions thereof that:
9.1 Imperial will provide all services in accordance with this Agreement
and all Microwave Separation Technology Equipment delivered ex quay (DEQ) to the
named port of destination to Tradewinds' MST Customer sites and will meet the
specifications agreed to for that MST Customer.
9.2 Imperial and Tradewinds will meet all safety standards in accordance
with this Agreement; will disclose to MST Customers procedures for the safe
operation of the Microwave Separation Technology Equipment. Imperial will
exercise due care in the construction, installation, and schooling in the
maintenance of Microwave Separation Technology Equipment and training of
personnel to prevent injuries to persons, harm to the environment and damage to
property.
9.3 Imperial agrees to comply with all United States laws, decrees, rules,
regulations, orders, ordinances, actions, and requests of national, state and/or
local courts and governmental units in the performance of its obligation under
this Agreement.
9.4 Microwave Separation Technology does not infringe on the intellectual
property rights or other proprietary rights of any third party of which Imperial
is aware as of this Agreement Date, and further that Microwave Separation
Technology is not a misappropriation of any third party's intellectual property
rights or other proprietary rights of which Imperial is aware as of this
Agreement Date.
9.5 Except for Paragraphs 9.1 to 9.4, IMPERIAL MAKES NO REPRESENTATIONS OR
WARRANTIES TO TRADEWINDS OF ANY KIND, EXPRESS OR IMPLIED.
10. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF TRADEWINDS
TRADEWINDS represents, warrants, and covenants to Imperial during the Term
of this Agreement and any extensions thereof that:
10.1 TRADEWINDS will provide to the best of its ability all services in
accordance with this Agreement.
10.2 TRADEWINDS will exercise to the best of its ability due care in
providing the services in accordance with this Agreement so as to avoid injuries
to persons, harm to the environment, and damage to property.
10.3 TRADEWINDS will comply with the best of its ability with all United
States and Indonesian laws, decrees, rules, regulations, orders, ordinances,
actions, and requests of national, state and/or local courts and governmental
units in the performance of its obligation under this Agreement.
10.4 Except for Paragraphs 10.1 to 10.3, TRADEWINDS MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED.
11. LIABILITY
11.1 Indemnification of Imperial. Tradewinds shall defend, indemnify, and
hold the Imperial harmless from and against any liability, loss, cost, penalty,
damage or expense (including attorney fees) to the extent arising either
directly or indirectly out of:
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a. the negligence or willful misconduct of Tradewinds, or an
employee, officer, director Affiliate, partner, principal, agent,
representative of Tradewinds in the performance of this Agreement
or any purchase order issued hereunder;
b. any failure by Tradewinds or an employee, officer, director,
Affiliate, partner, principal, agent, representative of
Tradewinds to comply with any applicable Law;
c. any claim made by an employee of Tradewinds for compensation,
loss of salary from any dispute lodged by a Tradewinds employee;
d. the strict liability of Tradewinds; and
e. the breach of any representation or warranty in this Agreement.
11.2 Indemnification of TRADEWINDS. Imperial shall defend, indemnify,
and hold Tradewinds harmless from and against any liability, loss, cost,
penalty, damage or expense (including attorney fees) to the extent arising
either directly or indirectly out of:
a. any dangerous or volatile characteristics of the Products, which
characteristics are or become known to Imperial, but have not or
are not disclosed to Tradewinds; and if conveyed to Tradewinds,
Tradewinds shall have complied with Imperial's direction to
discontinue use of the Product until such time as correction of
the problem has been made;
b. the negligence or willful misconduct of Imperial, or an employee,
officer, director Affiliate, partner, principal, agent,
representative or subcontractor of Imperial in the performance of
this Agreement or any purchase order issued hereunder;
c. products liability claims related to the Product;
d. any failure by Imperial or an employee, officer, director,
Affiliate, partner, principal, agent, representative or
subcontractor of Imperial to comply with any applicable Law;
e. the infringement or claimed infringement of any Intellectual
Property right of a third party that relates to the Product;
f. the strict liability of Imperial; and
g. the breach of any representation or warranty in this Agreement.
11.3 Concurrent Liability. In the event of a Loss arising out of the
joint negligence or willful misconduct of Tradewinds and Imperial, Tradewinds
and Imperial shall be liable to each other and to any damaged third party in
proportion to their relative degree of fault.
11.4 Settlement or Compromise. Any settlement or compromise made or
caused to be made by the Indemnified Person or the Indemnifying Person, as the
case may be, of any Loss shall also be binding upon the Indemnifying Person or
the Indemnified Person, as the case may be, in the same manner as if a final
judgment or decree had been entered by a court of competent jurisdiction in the
amount of such settlement or compromise; provided, that no obligation arising
out of such Loss shall be imposed on the Indemnified Person or the Indemnifying
Person as a result of such settlement without the prior written consent of such
Person, which consent shall not be unreasonably withheld.
11.5 Insurance or Benefits. In no event shall the indemnities provided
hereunder be limited in any way to the amount or type of damages, compensation
or other benefits payable by or for a Person under any insurance policy or Law
including, but not limited to, any workers' compensation statute or any
disability or other employee benefit statute.
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11.6 Survival of Obligations. The indemnification obligations of the
parties shall survive the termination of this Agreement for two years beyond the
termination date of this contract, including extension dates.
11.7 Dispute Settlement. The Parties will endeavor to resolve by
negotiation any dispute, controversy or claim arising out of or relating to or
in connection with this Agreement, or its breach, termination or invalidity,
("Dispute") that may arise between them. In addition, if either Party requests
that a Dispute be submitted to mediation, the mediation will be conducted in
Houston, Texas and both Parties will participate in mediation in good faith.
12. TERM AND TERMINATION
12.1 The Term of this Agreement shall be for two years (2 years). The
license agreement is effective May 1, 2002 and runs for one year through April
30, 2004. Contracts generated by Tradewinds in the Field of Use within Indonesia
and Singapore prior to May 1, 2002 will be honored for their exclusivity to
Tradewinds as if they were concluded on or after May 1, 2002. Further, any
business generated or created by Tradewinds during the term of this agreement
shall be considered as under the contract for a five-year period after the
contract expiration.
12.2 The license agreement may be renewed for two years or longer based on
negotiations between the Parties. It will be automatically renewed for two years
if Tradewinds payments, excluding the monthly license fee, to Imperial in the
previous licensing period have exceeded $1,500,000 US.
12.3 This Agreement shall terminate immediately and without notice upon the
institution of insolvency, bankruptcy or similar proceeding by or against either
party. If the proceeding is against Imperial, Tradewinds shall have the right to
continue to utilize the MST and related technology as if this agreement was
still in effect.
12.4 Upon termination of this Agreement and upon the written request of the
other party, Imperial shall return all copies of TRADEWINDS Proprietary
Information, and TRADEWINDS shall return all copies of Imperial Proprietary
Information related to Microwave Separation Technology and Improvements thereof,
except that Imperial and TRADEWINDS may retain one copy for the purpose of
determining its legal obligations under Article 14.
13. INDEPENDENT CONTRACTOR
13.1 In performing their obligations under this Agreement, Imperial and
TRADEWINDS are both independent contractors. Imperial and TRADEWINDS shall use
their own discretion and shall have complete control over services that each
provide and shall assume the rights, obligations, and liabilities, applicable to
each as an independent contractor. Nothing contained in this Agreement or the
Exhibits shall be construed to constitute Imperial or any of its employees or
officers as an employee, agent, joint venturer, or partner of TRADEWINDS or its
affiliates, successors, or assignees.
13.2 Imperial is not, and shall not represent itself to be, an agent or
representative of TRADEWINDS.
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14. CONFIDENTIALITY
14.1 Imperial and TRADEWINDS have executed a Non-Disclosure and
Confidentiality Secrecy Agreement effective December 15, 2001, attached in
Appendix A. The term of this Non-Disclosure and Confidentiality Secrecy
Agreement shall be extended to remain in effect during the Term of this
Agreement and all extensions thereof. All obligations undertaken by the parties
with respect to confidentiality and restrictions of use of Proprietary
Information disclosed under the Non-Disclosure and Confidentiality Secrecy
Agreement will be extended to terminate two years from the date of termination
of this Agreement including all extensions thereof. Proprietary Information that
may be disclosed under this Non-Disclosure and Confidentiality Secrecy Agreement
is amended to include improvements of emulsion breaking and separations
technology, as well as any other application.
14.2 Except for the provisions of Articles 3 and 10 of this Agreement,
nothing contained herein shall be construed as granting either party any right
or license under any copyright, patent, trade secret, or other intellectual
property rights of the other party, nor as obligating either party to make such
grants to the other party. Each Party shall insure that no distribution of the
other's proprietary documentation or system design data is made without the
express written approval of the other Party.
14.3 Without the written consent of TRADEWINDS, Imperial shall not disclose
the terms of this Agreement to MST Customers, including MST Customer sites fully
or partially owned or operated by Tradewinds.
15. NOTICES
All notices and other communications will be in writing and will be deemed
given when delivered if given in person, when deposited in the mail if sent by
certified or registered mail, return receipt requested, postage prepaid and
properly addressed, or when transmitted if sent by facsimile to the parties as
follows.
For Imperial Technical, Legal, and Business Matters:
Imperial Petroleum Recovery Corporation
0000 Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxxx
For Tradewinds Technical, Legal, and Business Matters:
Tradewinds Oil & Gas International, Ltd
16. RIGHT OF AUDIT
16.1 Imperial shall have the right, exercisable by delivery of written
notice to Tradewinds within 90 days after the close of each year under this
Agreement and after any termination of this Agreement, to have the pertinent
records of Tradewinds examined by an independent accountant mutually agreed to
by TRADEWINDS and Imperial for the purpose of verifying the payments in Article
6. All fees requested by such accountant for carrying out this examination will
be paid by Imperial. Such examination shall be conducted during normal business
hours. To the extent possible, examinations shall be scheduled at a time most
convenient to Tradewinds. Except as required by law, the accountant employed by
Imperial shall not disclose to anyone except Imperial and TRADEWINDS the result
of, or any of the data discovered in, any such examination, and shall not
disclose to Imperial any proprietary information of Tradewinds except to the
extent necessary for the verification permitted by this Article. After
completion of the examination, inaccuracies which the examination shall have
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disclosed, if any, shall be promptly adjusted. The determination of such
independent public accountant shall be final.
17. ASSIGNMENT
17.1 This Agreement may not be assigned by either party without the prior
written consent of the other party, except, however, in the event all or
substantially all of a party's assets, business or stock is purchased by an
acquirer or transferred to an Affiliate, this Agreement may be assigned to the
acquirer or Affiliate provided that any rights and/or obligations under this
Agreement are binding and inure to the benefit of the assignee.
18. APPLICABLE LAW
18.1 This Agreement will be construed and interpreted in accordance with
the plain meaning of its terms and, subject thereto, in accordance with the
substantive laws of the State of Texas, USA, without giving effect to Texas'
principles of conflict of laws. Where U.S. Federal subject matter or diversity
exists in respect of a dispute which the parties cannot themselves amicably
resolve, the parties designate the United States District Court having
jurisdiction for the state of Texas, as the exclusive forum for the resolution
of that dispute and agree to submit themselves and the dispute exclusively to
the jurisdiction of that Court. Where U.S. Federal subject matter or diversity
jurisdiction in respect of the dispute does not exist, the parties designate the
Circuit Court of the County of Xxxxxx, Texas as the exclusive forum for the
resolution of that dispute and agree to submit themselves and the dispute
exclusively to the jurisdiction of that Court. The rights and obligations of the
parties regarding resolution of disputes, as set forth in this Paragraph 20.1,
shall survive any termination of this Agreement.
19. INSURANCE
19.1 Without limiting or qualifying any liability otherwise assumed by
Imperial under this Agreement, Imperial shall, during the term of this Agreement
provide and carry at its own expense, at least the insurance below to protect
itself. Additionally, the insurance obtained below shall be sufficient to cover
claims made after termination of the Agreement relating to events that occurred
during the term of this Agreement.
(i) Statutory Workmen's compensation and employer's Liability
Insurance in compliance with the laws of the states where Imperial performs its
services.
(ii) Comprehensive General Liability Insurance with limits of not less
than $5,000,000 per occurrence for bodily injury and property damage; said
Comprehensive General Liability Insurance to include within sixty (60) days
after the Effective Date of this Agreement coverage for claims of patent
infringement or other violations of a third party's proprietary rights. If any
company or entity is excluded from coverage for claims related to patent
infringement or other violations of a third party's proprietary rights, Imperial
shall have nine (9) months from the Agreement Date to remedy such an exclusion.
(iii) Automotive Public Liability Insurance upon each and every unit
of automotive equipment operated or used by Imperial in the performance of this
Agreement with combined single limits of not less than $1,000,000 per accident.
19.2 Tradewinds shall procure and at all times maintain at its expense
policies of insurance of the types required to protect itself.
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19.3 Certificates of Insurance or certified copies of all insurance
policies required in Paragraphs 19.1 and 19.2 will be exchanged between
TRADEWINDS and Imperial at the mutual request of both parties.
20. MISCELLANEOUS
20.1 This Agreement and all Appendices, including the Non-Disclosure and
Confidentiality Secrecy Agreement in Appendix A, constitutes the full
understanding of the parties and a complete and exclusive statement of its terms
and supersedes all prior agreements, arrangements and understandings relating to
the subject matter hereof.
20.2 No modification of this Agreement or waiver of any of its terms and
conditions will be of any force or effect unless made in writing and signed by a
duly authorized officer of each of the parties.
20.3 All terms of this Agreement are severable, and any term that may be
prohibited or unenforceable by law shall be ineffective only to the extent of
such prohibition or unenforceability without affecting the enforceability of the
remainder of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective authorized officials as of the dates below.
IMPERIAL PETROLEUM TRADEWINDS TECHNOLOGY
RECOVERY CORPORATION COMPANY
By: By:
---------------------------- ------------------------
Name: C. Xxxxx Xxxxxxxxx Name: Xxxxx X. Xxxxx III
---------------------------- ------------------------
Title: President Title: President
--------------------------- -----------------------
Date: February 11, 2002 Date: February 11, 2002
---------------------------- -----------------------
OMITTED APPENDICES
APPENDIX A: NONDISCLOSURE AND SECRECY AGREEMENT
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