================================================================================
EXHIBIT 10.19
NONREIMBURSABLE SPACE ACT AGREEMENT
BETWEEN
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,
XXXX X. XXXXXXX SPACE CENTER
AND
HYBRID TECHNOLOGIES, INC.
FOR
LOAN OF HYBRID TECHNOLOGIES PT CRUISER, SMART CAR AND
ALL TERRAIN VEHICLES, ELECTRIC VEHICLES
I. AUTHORITY
This agreement is entered. into by the National Aeronautics and Space
Administration, Xxxx X. Xxxxxxx Space Center (hereinafter "NASA.-T SC") located
at Xxxxxxx Xxxxx Xxxxxx, Xxxxxxx 00000, and Hybrid Technologies, Inc.
(hereinafter "Hybrid Tech"), located at 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000-000,
Xxx Xxxxx, Xxxxxx 00000. This agreement is entered into pursuant to sections
203(c) (5) and (6) of the National Aeronautics and Space Act of 1958, as
amended, 42 U.S.C. Section 2473(c), as implemented by NASA Policy Directive
1050.1 G.
II. PURPOSE OF AGREEMENT AND AGENCY COMMITMENT
This agreement details the roles and responsibilities of NASA-KSC and. Hybrid
Tech regarding the loan of three electric vehicles: one PT Cruiser, one Smart
Car, and one All Terrain Vehicle (ATV) (see pages 11-13 of this agreement) to
NASA-KSC. Utilizing these vehicles at K SC is a cooperative opportunity to
demonstrate zero emission vehicle technology in a high-visibility application.
Benefits to NASA-KSC include having improved compliance with Alternative Fuel
Vehicles (AFVs) mandates, demonstrating the use of an electric vehicle in
Federal (fleets the size of KSC's fleet and studying the possibilities of
utilizing electric vehicles in our fleet operations, and establishing a
relationship with Hybrid Tech for possible future collaboration on AFVs.
III.RESPONSIBILITIES
A. LOAN OF VEHICLES TO NASA-KSC
1. Hybrid Tech agrees to loan to NASA-KSC and. NASA-KSC agrees to
accept from Hybrid Tech one used and/or new PT Cruiser, one used
and/or new Smart Car Electric Vehicle and one new or used ATV,
all of which will. include a battery pack with 100 percent
lithium batteries used to power the vchicle(s) for use in
NASA-KSC's business. Vehicles shall be described in Loan
Agreement Supplements ("Supplement") executed by Hybrid Tech and
NASA-KSC from time to time. Each such Supplement shall be
incorporated herein upon its execution by Hybrid Tech and
NASA-KSC.
2. This is an Agreement for loan of the vehicles only and is not a
contract for the sale or lease of vehicle(s). Hybrid Tech is the
owner of the three vehicles mentioned above, and NASA-KSC
recognizes that it does not acquire any legal or equitable
KCA-4065
Rev. Basic
interest in the vehicle(s). NASA-KSC's rights to possess, use,
and operate any and all vehicles shall he forfeited upon the
termination or expiration of this Agreement as hereinafter
provided.
3. With respect to each vehicle, the term of the loan (the "Term")
shall commence on the date the vehicle(s) is delivered to the
NASA-KSC (the "In-Service Date") and shall continue through the
date set forth in the applicable Supplement as the maturity date.
In no event will the term of the loan of any individual vehicle
described in a Supplement exceed the term of the Agreement
established in Section XVIII, herein.
B. PLACEMENT OF VEHICLES IN SERVICE
1. Hybrid Tech shall complete a Supplement for the vehicle, which
N4SA-KSC and Hybrid Tech shall execute prior to delivery of the
vehicle to NASA-KSC. Vehicles described in such Supplement shall,
upon execution of the Supplement by NASA, KSC and Hybrid Tech and
delivery of the vehicle to NASA-KSC, he subject to all the terms
and conditions of this Agreement. Carrier receipt will be
sufficient proof of delivery of the vehicles to NASA-KSC.
2. Vehicles shall include all equipment required by Federal, state,
or municipal statutes, laws, ordinances, rules, or regulations,
present or future. Hybrid Tech shall pay for and install any
equipment necessary to bring vehicles in compliance with these
requirements. NASA-KSV agrees to cooperate with Hybrid Tech in
accomplishing compliance.
3. NASA-KSC shall inspect all vehicles within five (5) business days
of delivery. If, as a result of such inspection, NASA-KSC
discovers any physical or functional defect in the vehicle
received, NASA-KSC shall notify Hybrid Tech within ten (10)
business days, and Hybrid Tech may, at its option, either
promptly repair the defect or terminate the loan of such vehicle.
C. REGISTRATION, OFFICIAL FEES AND TAXES, MOVEMENT OF VEHICLE
1. Hybrid Tech shall not be responsible for any fines incurred by
drivers of the vehicles such as traffic or parking tickets.
2. Hybrid Tech or its designee will register and title the vehicle
initially, and NASA-KSC plans to either provide a Government tag
or shall be responsible for subsequent registration of the
vehicle. All vehicles will be titled or registered in the state
specified in the Supplement. The Certificate of Title and
Registration for each vehicle shall be completed as instructed by
Hybrid Tech. Hybrid Tech will be the legal owner of the vehicle
and shall retain possession of All Certificates of Title.
D. USAGE
1. NASA-KSC shall use each vehicle only for official business
requirements.
Vehicles may not be leased by NASA-KSC. NASA-KSC will ensure that
all vehicles are used in a careful manner and in accordance with
all applicable governmental and insurance requirements and
limitations and in no event for other than a lawful purpose and
in compliance with all laws. Hybrid Tech property and liability
insurance must cover all users of the vehicle. Under no
circumstances shall NASA-KSC permit any vehicle to be used or
charged by any individual who has not been trained by NASA-KSC to
use and charge the vehicle.
2. NASA-KSC understands and agrees that NASA-KSC may not, under any
circumstances, disassemble the vehicles or any portion thereof.
If NASA-KSC makes any alterations to a vehicle with Hybrid Tech's
permission, NASA-KSC shall return the vehicle to its original
condition prior to the expiration or early termination of this
Agreement. NASA-KSC agrees to maintain in unobliterated condition
any identification numbers, labels, tags, and other markings used
to identify the vehicles.
3. NASA-KSC will provide to Hybrid Tech such information regarding
the vehicles and NASA-KSC's use thereof as may be reasonably
requested by Hybrid Tech.
E. INSURANCE
1. Hybrid Tech shall provide, at Hybrid Tech's expense, for each,
vehicle during the Term thereon, Automobile Liability Insurance
with limits not less than $1 million per accident and including
Comprehensive and Collision Damage coverage for each vehicle. The
insurance shall name Hybrid Tech as Loss Payee and NASA-KSC as
Additional Insured. Hybrid Tech must provide continued, proof of
such insurance to NASA-KSC, as requested. Proof of insurance
shall be provided at the time of execution of Supplement to this
Agreement.
2. NASA-KSC shall promptly notify Hybrid Tech of any damage to their
vehicles. NASA-KSC may assist Hybrid Tech in coordinating the
pickup or delivery of the vehicles with their Approved Service
Providers. The Approved Service Providers shall provide proof
that the necessary repairs have been completed and that the
vehicle is safe to operate. Hybrid Tech shall pay for any
accident-related vehicle repairs or expenses which are not
covered by insurance. If any claim is made or action commenced
for personal injury or death or property damage in connection
with any vehicle, NASA-KSC shall promptly notify Hybrid Tech.
F. MAINTENANCE AND REPAIRS
1. Hybrid Tech shall, at Hybrid Tech's sole expense (no maintenance
costs from NASA), maintain all their vehicles in accordance with
the owner's and service manuals. Hybrid Tech shall have
maintenance and repairs performed only by authorized KSC area
dealers or other Approved Service Provider(s) designated by
KCA-4065
Rev. Basic
Hybrid Tech. Hybrid Tech shall provide NASA with a list of the
Approved Service Providers in NASA-KSC's geographic area prior to
delivery of the vehicle. If any of the foregoing dealers cease to
he Approved Service Providers during the Term, Hybrid Tech will
appoint one or more alternate Approved Service Providers in
NASA-KSC's geographic area and provide NASA-KSC with an updated
list.
2. Hybrid Tech shall immediately arrange for repairs or, if
necessary, replacement of the vehicle. All vehicle warranty
repair and maintenance shall be performed in accordance with the
manufacturer's suggested warranty repair and maintenance program
and by an Approved Service Provider. Any manufacturer recall or
other notices regarding the operation or repair of the vehicle
will be forwarded to NASA-KSC within five (5) days of receipt.
3. NASA-KSC may assist Hybrid Tech (upon their request) by
delivering the vehicle to the Approved Service Provider for
warranty repair and maintenance. If the vehicle is not drivable,
NASA-KSC will obtain clearance of any approved KSC tow company
for the removal of the vehicle from KSC property.
4. NASA-KSC shall provide, at its own expense, a power source that
meets the specifications set forth by Hybrid Tech and the
manufacturer for recharging required for the proper operation
and/or protection of each vehicle.
5. NASA-KSC shall be responsible for all expenses or charges
associated with washing, parking, towing, garage and/or highway
tolls for each vehicle.
6. NASA-KSC gives Hybrid Tech the right to inspect any vehicle upon
prior reasonable notice to NASA-KSC. If Hybrid Tech, during any
inspection of a vehicle, determines that NASA-KSC has failed to
perform its obligations as set forth in this Section, Hybrid Tech
shall give NASA-KSC written notice thereof. Unless NASA-KSC
performs its obligations within thirty (30) days from the date of
Hybrid Tech notice, Hybrid Tech shall have the right, but not the
obligation, to terminate the loan of the vehicle to NASA-KSC
and/or to perform the maintenance, service, and repair required
to be performed.
7. NASA-KSC gives Hybrid Tech the right to install, at any time, any
equipment or make any repairs or changes to the vehicle which
Hybrid Tech deems are necessary.
G. RETURN OF VEHICLES
1. Upon the expiration or termination of this Agreement in its
entirety or with respect to any or all vehicles, said vehicles
shall be returned to Hybrid Tech's closest regional office or
Approved Service Provider from NASA-KSC's location, at Hybrid
Tech's expense, NASA-KSC shall give Hybrid Tech thirty (30) days
written notice of the vehicle identification number of the
vehicle(s) coming to the end of its Term.
KCA-4065
Rev. Basic
2. Prior to Hybrid Tech's acceptance of any vehicle at the end of
the Term for such vehicle, Hybrid Tech may schedule a prerecovery
inspection with NASA-KSC.
3. Each vehicle returned to Hybrid Tech shall have one (1) battery
pack with lithium batteries, four (4) undamaged tires of
identical make and type, and one (1) spare tire (allowing for
normal wear and tear).
4. Actual mileage of the vehicle during the In-Service period shall
be certified pursuant to a federally required odometer statement,
to be signed by the NASA-KSC upon the expiration of this
Agreement.
IV. LIABILITY AND RISK OF LOSS
A. Hybrid Tech assumes all risks and liability arising from NASA-KSC's
possession, use, and operation of the vehicles, including liability which
may rise from NASA-KSC's employee's or agent's possession, use, and
operation of a vehicle from the moment of delivery to NASA-KSC to the moment
of return to Hybrid Tech. Hybrid Tech agrees to indemnify and hold NASA and
NASA-KSC harmless from any and all of the following whether actual or
alleged: (i) all loss, damage, claims, suits, taxes, liens, penalties,
fines, liability, and expense (including reasonable attorneys' fees) arising
in any manner, relating directly or indirectly to the possession, use, and
operation of the vehicles, including, but not limited to, injuries or death
to persons or damages to or destruction of property; (ii) claims and liens
for storage, labor, and materials; and (iii) all loss of and damage to, the
vehicles, regardless of whether insured for physical damage insurance.
B. Without limiting its obligations under subsection A above, Hybrid Tech
further agrees to indemnify and hold harmless NASA and NASA-KSC from any and
all loss, damage, claims, suits, taxes, liens, penalties, fines, liability,
and expense (including reasonable attorneys' fees) arising out of claims by
third parties (including employees, agents, or contractors of NASA-KSC)
which relate directly or indirectly to NASA-KSC's acts or omissions or
breach of this Agreement in connection with the possession, use, and
operation of the vehicles, including, but not limited to, injuries or death
to persons or damages to, or destruction of, property. Such indemnity shall
not waive any rights the NASA-KSC may have against the manufacturer of the
vehicle or Hybrid Tech for product liability claims.
C. Hybrid Tech further agrees to extend this unilateral waiver to its own
related entities by requiring them, by contract or otherwise, to waive all
claims against NASA, its related entities, and employees of NASA or of its
related entities for injury, death, damage, or loss arising from, or
related to, activities undertaken pursuant to this agreement.
D. Hybrid Tech assumes any and all risks of personal injury and property
damage attributable to the negligent acts or omissions of Hybrid Tech
and its officers, employees, servants, and agents thereof while acting
within the scope of their employment by Hybrid Tech.
KC A-4065
Rev. Basic
V. ASSIGNMENT
A. NASA-KSC shall not assign or permit any vehicle to be used by anyone other
than NASA-KSC and/or NASA contractor employees.
B. Hybrid Tech shall have the right to assign any or all of its rights and
obligations at any time without the consent of NASA-KSC. Without limiting
the foregoing, Hybrid Tech shall have the right to assign any of its rights
hereunder to a financial institution retained by Hybrid Tech to service this
Agreement.
VI. NOTICES
Any notice required or permitted under this Agreement shall be in writing and
shall be deemed given when mailed by certified mail, return receipt requested,
or nationally recognized courier service to Hybrid Tech or NASA-KSC at their
respective addresses set forth on page 8 of this Agreement, or at such other
address furnished by either party to the other in accordance with the notice
provisions of this Section.
VII. APPLICABLE LAWS, RULES, REGULATIONS, AND POLICIES
A. United States Federal law governs this Agreement for all purposes,
including, but not limited to, determining the validity of the Agreement,
the meaning of its provisions, and the rights, obligations and remedies of
the parties.
B. While engaged in activities on NASA-KSC property pursuant to this
Agreement, Hybrid Tech agrees to comply with all NASA-KSC policies, rules,
and regulations in effect at the time the activities are occurring. This
includes, but is not limited, to, all safety, health, security, and
environmental requirements.
VIII. FURTHER ASSURANCES
From time to time each party shall execute and deliver supplements and such
further instruments and will take such other actions as the other party
reasonably may request in order to discharge and perform their respective
obligations and agreements hereunder.
IX. FORCE MAJEUERE
Neither party shall incur any liability to the other for any obligations if
caused by wars, fires, strikes, or other labor disputes, accidents, acts of God,
governmental regulations or interference, shortages of labor or materials,
delays in transportation, nonavailability of same from the manufacturer, or
other causes beyond that party's control. IN NO EVENT SHALL EITHER PARTY BE
LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES.
X. SEVERABILITY AND WAIVER
Any provision of this Agreement prohibited by applicable law will be ineffective
to the extent of such prohibition without invalidating the remaining provisions
hereof. The failure of either party
KCA-4065
Rev. Basic
to require strict performance of any provision will not diminish that party's
right thereafter to require strict performance of any provision.
XI. SUCCESSORS AND ASSIGNS
This Agreement shall he binding on, and shall endure to the benefit of, the
parties hereto and their respective permitted successors and assigns.
XII. SURVIVAL OF COVENANTS, REPRESENTATIONS, AND WARRANTIES
The covenants, representations, and warranties of each of the parties to this
Agreement shall survive the termination of this Agreement.
XIII. FINANCIAL OBLIGATIONS
There will be no transfer of funds between NASA-KSC and Hybrid Tech in
connection with this Agreement. Each party will fund its own participation under
this Agreement.
All activities under, or pursuant to, this agreement are subject to the
availability of appropriated funds, and no provision shall be interpreted to
require obligation. or provision of funds in violation of the Anti-Deficiency
Act, 31 U.S.C. section 1341.
XIV. INTELLECTUAL PROPERTY AND DATA RIGHTS
Data generated under this Agreement will be reserved to Hybrid Tech for
scientific analysis and first publication rights beginning with creation of a
form suitable for analysis. NASA may also have access to, and use of, the data
and any associated data, but such access and use will not prejudice the first
publication rights of the investigators.
Final results will be made available to the scientific community through
publication in appropriate journals or other established channels as soon as
practicable and consistent with good scientific practice. In the event such
reports or publications are copyrighted, NASA and Hybrid Tech shall have a
royalty-free right under the copyright to reproduce, distribute, create
derivative works, and use such copyrighted work for their purposes. In the event
such reports or publications are copyrighted, Hybrid Tech shall either own all
such copyrights, or if Hybrid Tech chooses for any reason whatsoever not to do
so, NASA and Hybrid Tech shall each have a royalty-free right under the
copyright to reproduce, distribute, create derivative works, and use such
copyrighted work for their purposes.
Title to inventions made (conceived or first actually reduced to practice) as a
consequence of, or in direct relation to, the performance of the activities
under this Agreement will remain with the respective inventing parties, and no
invention and patent rights are exchanged between the parties unless otherwise
specifically agreed and set forth in, this Agreement. Tn the event an invention
is made jointly by employees of the parties or an employee of a party's
contractor, the parties will consult and agree as to future actions toward
establishment of patent protection for the invention. It is recognized and
agreed that the parties may be required to and shall grant license
KCA-4065
Rev. Basic
or other rights to sponsor(s) in inventions, data, and information under
provisions which may be contained in prime funding agreement(s).
XV. DISCLAIMER OF WARRANTY
Neither NASA nor Hybrid Tech warrants the data's availability or suitability for
any particular use.
XVI. CONTINUING OBLIGATIONS
The obligations of the parties set forth in this Agreement concerning Liability
and Risk of Loss and intellectual Property and Data Rights shall continue to
apply after the expiration or termination of this Agreement.
VII. KEY PERSONNEL
The following personnel arc designated as the key officials for their respective
party. These key officials are the principal points of contact between the
parties in the performance of this Agreement:
NASA-KSC HYBRID TECH
Brace Xxxxxxx Xxxxxxx Xxxxxxxxx
Transportation, Alternative Fuels and Vehicles Public Relations & Business Development
Mail Code: TA-El Hybrid Technologies, Inc
NASA, Xxxx X. Xxxxxxx Space Center 0000 Xxxx Xxxxxxx Xxxx, Xxxxx 000-00
Xxxxxxx Space Center, FL 32899 Xxx Xxxxx, XX 00000
Telephone: 000 000-0000 Telephone: 000-000-0000
Fax: 321-867-1.458 Fax: 000-000-0000
E-mail: Bruce E. Xxxxxxx@xxxx.xxx E-mail: rgriffiths@ xxxxxxxxxxxxxxxxxx.xxx
XVIII.TERM OF AGREEMENT AND RIGHT TO TFRMINAT1ON
This Agreement sets forth the entire and complete agreement between the parties.
This Agreement becomes effective on the date of the last signature of the
parties. Either party, upon a 30-day written notice to the other party, may
terminate this Agreement at any time and for any reason it deems substantial. In
the event of such termination, each party shall return to the other any data it
furnished to assist the other in performance of this Agreement, but each party
may retain one archival copy of such data and any data generated by its
performance under the Agreement, unless the "Intellectual Property and Data
Rights" or other section of this Agreement provides otherwise. This Agreement
shall expire upon completion of all obligations of both, parties hereto or not
to exceed one year from the date of the last signature of the parties, whichever
comes first.
KCA-4065
Rev. Basic
XIX. NEWS RELEASES AND PUBLICATIONS
The parties agree to coordinate in advance any news releases and/or widely
distributed publications that result from activities ,performed pursuant to this
Agreement. This coordination shall entail, notifying the respective points of
contact of the proposed news release or publication in sufficient time to allow
the other party an opportunity to review and comment as deemed appropriate.
XIX. USE OF NAME, INITIALS, AND INSIGNIA
Hybrid Tech agrees to submit to NASA for its approval all promotional and
advertising material that uses the NASA name, initials, insignia, seal, or
logotype prior to publication. Approval by NASA. shall be based on applicable
law (e.g.. 42 U.S.C. section 2459(b), 2472(a), and 2473(c)(1); and 14 C.F.R.
section 1221.100 et seq.) and policy governing the use: of the words "National
Aeronautics and Space Administration," and the letters "N A S A," and the NASA.
insignia, sea], and logotype.
NASA agrees that it will not at any time during or following termination of this
Agreement use the name of Hybrid Tech or any other names, insignia, symbol(s),
or logotypes associated with Hybrid Tech or any variant or variants thereof or
the names of the principal Hybrid Tech representative or employee in any
formally published literature, advertising, or other materials without the prior
written consent of Hybrid Tech, notwithstanding the foregoing, Hybrid Tech shall
be permitted to state orally and in writing the fact that the loan of vehicles
has taken place.
XX. INDEPENDENCE OF CONTRACTS
The parties agree that this Agreement is independent of any other contract
between the United States Government and Hybrid Tech. By participating in this
Agreement, NASA makes no assurances to Hybrid Tech or others as to performance
of the objects tested in NASA facilities or other test objects and relieves
Hybrid Tech of none of its obligations under any other contract, grant, or other
agreement with the Government. This Agreement does not constitute NASA's or
Hybrid Tech's endorsement of any test results, resulting designs, hardware, or
other matters.
XXI. NONEXCLUSIVITY
This Agreement is not exclusive; accordingly, Hybrid Tech or NASA may enter into
similar agreements for the same or similar purpose with other private or public
entities.
KCA-4065
Rev. Basic
XXIII. EXECUTION
This Agreement is hereby executed in duplicate originals by the undersigned.
National Aeronautics Hybrid Technologies, Inc.
And Space Administration
Xxxx X. Xxxxxxx Space Center
BY: /s/ Xxxxx X. Xxxxxxx By: /s/ Xxxxx Xxxxxxxxx
Xxxxx X. Xxxxxxx Xxxxx Xxxxxxxxx
Director President
