LICENSE AGREEMENT
THIS LICENSE AGREEMENT ("Agreement") is made effective and
entered into as of this ____ day of ___________, 2003, by and
between ADVANCED FUEL TECHNOLOGIES, INC. (AFT) a corporation
organized under the laws of Nevada and having its principal place
of business at ________________________________, and EMISSION
CONTROLS CORP (ECC), a Delaware corporation, having its principal
place of business at 0000 XX 00xx Xxxxxx, Xxxx Xxxx, XX 00000.
WHEREAS, ECC has the right to grant licenses for the
manufacturing, marketing, sales and distribution of the Licensed
Technology (as defined below) developed by ECC; and
WHEREAS, ECC shall delegate and monitor the manufacturing
responsibilities of the Licensed Technology World-wide; and
WHEREAS, ECC is willing to grant an exclusive license to AFT
subject to certain conditions precedent set forth below.
NOW, THEREFORE, in consideration of the premises and of the
covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
SECTION 1.0
DEFINITIONS
Unless otherwise defined in the body of this Agreement, terms
with initial capital letters shall have the meaning specified in
this Section 1.0.
1.1 "Affiliate" means any person, partnership, joint
venture, corporation or other form of enterprise, domestic or
foreign, including, but not limited to, subsidiaries, which
directly or indirectly control, are controlled by, or are under
common control with ECC and AFT.
1.2 "Documentation" means all materials, documentation,
specifications, technical manuals, user manuals, manufacturing
requirements, installation information, materials lists, flow
diagrams, and other written information about a Licensed
Technology, that is either, from time to time, provided by ECC to
AFT or published by ECC, which describes the function and use of
the Licensed Technology.
1.3 "Confidential Information" means all technical or
business information, including but not limited to Documentation
related to the Licensed Technology provided hereunder, financial
data, business plans, customer lists, and any other information
which is:
a. disclosed by ECC to AFT and designated as confidential at
the time of disclosure; or
b. disclosed by ECC in any other manner and identified as
confidential at the time of disclosure and/or subsequently
summarized and designated as confidential in a written
memorandum delivered to AFT within thirty (30) days after
the disclosure.
c. disclosed by AFT to ECC and designated as confidential at
the time of
disclosure; or
d. disclosed by AFT in any other manner and identified as
confidential at the time of disclosure and/or subsequently
summarized and designated as confidential in
written memorandum and delivered to ECC.
1.4 "Design Information" shall mean the structured
design information of the Licensed Technology, which includes
design parameters and parts design but not the assembling and
manufacturing know-how.
1.5 "Licensed Technology" means NRFR as provided herein.
1.6 "Manufactured Product" means all products
manufactured, utilizing the Licensed Technology, by anyone,
anywhere in the world.
1.7 "Manufactured Costs" means the following:
1. Cost per invoices from out sourced part
fabricator, together with;
2. Cost of assembling and packaging of said
parts.
a. Cost of assembling shall be
determined by cost, personnel and space
divided by number of units assembled.
b. Cost of packaging shall be determined
by materials, personnel and space
divided by the number of units packaged.
1.8 "Net Sales Price" means the amount received in
cash for the sale of an NRFR less proportionate allowance for
discounts and returns.
1.9 "NRFR" means Natural Resource Fuel Reformer
technology owned by ECC and all current and future applications,
modifications and enhancements thereto. The NRFR, as it pertains
to this Agreement, is for application to automobiles, SUV's,
light trucks, marine and recreational vehicles powered by
gasoline internal combustion engines.
1.10 "Product Fee" means that fee which is due and payable
for each NRFR and/or NRFR technology products sold by AFT.
1.11 "License Fee" means that fee which is due and payable for
the license granted under this Agreement.
1.12 "Recreational Vehicle" means all those vehicles described
as motor-homes and manufactured by such companies as Coachman,
Gulfstream, Monaco and others.
1.13 "ECC Patents" means any and all U.S. and/or foreign
patents, continuations, divisions, provisional patent
applications which cover in whole or in part the NRFR Licensed
Technology owned by ECC, its successors and/or assigns.
SECTION 2.0
CONDITIONS PRECEDENT AND EFFECTIVENESS OF AGREEMENT
2.1 The "Effective Date" of this agreement shall be at
the time of signing, subject to the following conditions:
a. Satisfactory completion to AFT of testing by
Environmental Testing Corporation of the Licensed Technology
installed in ECC's test vehicle (1999 Ford Expedition).
Said test results shall comply with Federal Standards for
automobile emissions.
i. ECC will authorize Environmental Testing
Corporation (ETC) to provide AFT investigators
with all test data.
ii. AFT or its associates may dialogue with Xxxxxx
Xxxxxxxx or his designates concerning the test
results by ETC.
b. AFT will provide ECC with names and telephone numbers of
people and/or organizations who have expressed interest in
investing in AFT for the purposes of acquiring this
Licensing Agreement for the manufacturing, marketing, sales
and the establishment of a distribution facility for the
NRFR in the US.
SECTION 3.0
GRANT OF LICENSE
3.1 On the "Effective Date", ECC agrees to grant AFT and AFT
agrees to accept an exclusive license to market, sell and
distribute the Manufactured Product in the United States,
including Alaska and Hawaii, subject to termination provisions
set forth below. ECC will also grant manufacturing rights to AFT
as determined by ECC.
3.2 Further, ECC gives AFT full authority to coordinate and
control the registration, and tracking of any and all
Manufactured Product(s) manufactured anywhere in the World.
3.3 AFT will register, track, assemble and ship any and all NRFR
Technology products sold in the United States
a. Sold by AFT
b. Sold by ECC
3.4 AFT acknowledges and agrees that the Licensed Technology
is proprietary to ECC, and that the license granted hereunder
does not include a grant of title or any security in any
intellectual property rights relating to the Licensed Technology.
3.5 AFT acknowledges and agrees that the Recreational Vehicle
(RV) industry is excluded from this Agreement.
a. ECC shall retain all rights to manufacture and market the
Licensed Technology to the RV industry.
b. ECC designates AFT as it's exclusive distributor,
responsible for assembling, packaging, registering,
tracking, and maintaining records for warranty and service
for the RV industry.
c. ECC and AFT agree to negotiate a service fee for the
above process.
3.6 If, for any reason, ECC elects not to manufacture and
market the Licensed Technology to the R.V. industry, AFT shall
have "first right of refusal" to manufacture and market the
Licensed Technology to the R.V. industry in the US.
3.7 Recognizing orders will come in from all over the world,
in order to accommodate sales and order fulfillment in unlicensed
territories, ECC grants AFT the right to fulfill these orders
prior to the licensing of other countries, with full disclosure
to ECC.
3.8 Further, if Ford Motor Company indicates an interest, in
writing, to acquire the NRFR technology and/or to acquire ECC
within 120 days from the "Effective Date" of this agreement
and prior to the beginning of national marketing by AFT, ECC
agrees to so advise AFT, in writing. ECC agrees to pay AFT 10% of
any acquisition value received plus a refund of any licensing
fees that have been paid by AFT.
3.9 After 120 days from the Effective Date and/or the
initialization of national marketing by AFT, ECC agrees to pay
AFT 20% of any amount or value received from Ford Motor Company
in the event that Ford Motor Company acquires ECC or the Licensed
Technology up to and including the first 12 months of this
agreement plus a refund of any licensing fees paid by AFT.
3.9.1 AFT acknowledges that it will not sell a majority or
controlling interest in AFT without ECC's written consent and ECC
acknowledges that it will not unreasonably withhold such consent.
3.9.2 ECC will not complete a sale of stock, merger,
consolidation, or sale of assets during the term of this
Agreement, unless the purchasing party agrees to be bound in full
to the terms of this Agreement with AFT, its successors and
assigns.
3.9.3 Other Licenses must carry a prohibition against selling the
"NRFR Technology" in the US.
3.9.4 AFT or any affiliate of AFT is strictly prohibited from
selling the "NRFR Technology" in other licensed areas disclosed
to them by ECC.
3.9.5 Further, AFT is strictly prohibited from selling the "NRFR
Technology" in any area outside the US without the express
written consent of ECC.
SECTION 4.0
LICENSE FEE
4.1 In consideration of the license set forth in Section 3
above, AFT agrees to pay ECC the following amounts subject to the
terms and conditions set forth herein: Fifty Million Dollars
($50,000,000) payable on the following schedule:
a. AFT agrees to pay ECC ($5,000,000) prior to the onset
of national marketing, according to the following schedule:
i. Two Million Dollars ($2,000,000) shall be paid
within sixty (60) days of satisfactory
completion of testing to AFT by Environmental
Testing Corporation of the NRFR installed in
ECC's test vehicle (1999 Ford Expedition). Said
test results shall comply with Federal Standards
for automobile emissions.
ii. Two Million Dollars ($2,000,000) upon delivery
to AFT of (1) engineering drawings of all parts
necessary to complete the NRFR system and to
enable manufacturing as determined by AFT and
ECC and (2) multiple prototypes (number to be
discussed and mutually decided upon).
iii. One Million Dollars ($1,000,000) at onset of
national marketing by AFT.
4.2 License Fee and Product Fee payments for each NRFR
Technology product sold by AFT equal to:
a. License Fee payment shall be the lesser of ten (10%)
percent of the Net Sales Price of each sold NRFR Technology
product or sixty ($60) dollars for each sold NRFR Technology
product until the total sum of $45,000,000 has been paid,
subject to returns and discounts; and
b. Product Fee shall be the lesser of six (6%)
percent of the Net Sales Price of each sold NRFR or forty
($40) dollars for each sold NRFR Technology product during
the lifetime of this agreement, subject to returns and
discounts.
c. However, if AFT's net profit margins are more than 30%,
an acceleration of the License Fee and an increase of the
Product Fee can be scheduled and executed after review by
ECC of AFT's profit margins, exclusive of management
salaries. Margins shall be reviewed at the end of 3 months,
6 months and every 30 days thereafter at ECC's option.
i. License Fee shall not exceed $80 for each sold
NRFR.
ii. Product Fee shall not exceed $50 for each sold
NRFR.
4.3 AFT shall pay all License Fee payments and Product
Fee payments, on eligible sales, on a prompt basis (monthly or
bi-monthly). Sales shall not be eligible for payment until the
completed product has been shipped and paid for. Remittances to
ECC shall be by automatic transfer to a bank account to be
specified by ECC.
4.4 AFT shall keep accurate records reasonably
necessary in accordance with generally accepted accounting
principles to ascertain the amount of License Fee payments and
Product Fee payments payable to ECC for each NRFR Technology
product sold by AFT.
4.5 ECC shall have the right, through its internal
auditors or through an independent firm, to make an examination
and audit, at least four times per year at AFT's premises, during
normal business hours, of AFT's records and accounts as may
contain information bearing upon the amounts due hereunder for a
period of time up to five (5) years prior to the date of the
audit. Prompt adjustments shall be made by the other party for
any underpayments or overpayments disclosed by such audits. If
any quarterly report understates the compensation due to ECC for
any fiscal quarter by more than 5%, AFT shall pay any shortfall
within forty-five (45) days of receipt of an invoice, therefore,
with itemization.
4.6 Other than the License Fee payments and Product
Fee payments payable by AFT hereunder, each party shall pay its
own sales, use, income, property, withholding, consumption or
other taxes duties, tariffs, levies or fees imposed as a result
of their participation in this agreement.
SECTION 5.0
TERM AND TERMINATION
5.1 The term of this Agreement shall be for seventeen (17) years
commencing upon the Effective Date, unless earlier cancelled or
terminated in accordance with the provisions hereof.
5.2 Either party may terminate this Agreement effective
immediately and without liability upon (30) day written notice to
the other party if any one of the following events occur:
a. The other party files a voluntary
petition in bankruptcy or otherwise seeks protection under
any law for the protection from debtors; or
b. A proceeding is instituted against
the other party under any provision of any bankruptcy laws
which is not dismissed within ninety (90) days; or
c. The other party is adjudged a bankrupt; or
d. A court assumes jurisdiction of all
or a substantial portion of the assets of the other party
under a reorganization law; or
e. A trustee or receiver is appointed by a
court for all or a substantial portion of the assets of the
other party; or
f. The other party becomes insolvent, ceases business; or
g. The other party makes an assignment of the
majority of its assets for the benefit of its creditors; or
h. The other party admits in writing
its inability to pay its debts as they become due; or
i. Performance under this Agreement
violates or conflicts with then current regulation(s) of the
U.S. Office of Export Administration and/or applicable U.S.
governmental agencies; or
5.3 If either party materially fails to perform or violates any
obligation pursuant to this Agreement, then, upon thirty (30) day
written notice to the breaching party specifying such default
(the "Default Notice"), the non-breaching party may terminate
this Agreement, without liability, unless:
a. The breach specified in the Default Notice has been
cured within the thirty (30) day period; or
b. The default reasonably requires
more than thirty (30) days to correct (specifically
excluding any failure to pay money), and the defaulting
party has begun substantial corrective action to remedy the
default within such thirty (30) day period and diligently
pursues such action, in which event, termination shall not
be effective unless ninety (90) days have expired from the
date of the Default Notice without such corrective action
being completed and the default remedied.
5.4 In the event of termination for any reason, or expiration of
this Agreement, all amounts due and owing pursuant to this
Agreement shall become immediately payable within the normal
parameters of closing the business including the conclusion of
orders already initiated.
5.5 Any termination or cancellation hereunder shall be
in addition to any other remedy either party may have at law or
in equity.
5.6 Upon termination or expiration of this Agreement for any
cause and in any manner, the parties shall take the following
actions:
i AFT shall immediately discontinue
the use of ECC's Licensed Technology and Design
Information on any product.
ii Any termination of this Agreement, by
expiration of the term or otherwise, shall not
release either party from any of its obligations,
liabilities or rights accrued or incurred
hereunder up to the date of such termination or
rescind or give rise to any right to rescind
anything done or any payment made or other
consideration given by any party to the other
hereunder prior to the time such termination
becomes effective.
iii AFT shall cease manufacturing,
exporting, importing, distributing and selling
said Manufactured Product(s) as soon as is
commercially feasible, but not longer than three
(3) months after termination. Notwithstanding the
foregoing, AFT shall have the right to fill
existing orders and to sell off existing
Manufactured Product(s) then in stock, provided,
the sell-off period shall not exceed six (6)
months from the date of termination. ECC shall
have the right to verify the existence and
validity of the existing orders and existing units
of the Manufactured Product(s) then in stock upon
reasonable notice to AFT.
SECTION
6.0
SPECIAL TERMS
6.1 AFT will establish marketing and distribution
operations in the U.S. within twelve months of the effective date
of this agreement, subject to the following exceptions:
1. Delays due to regulatory investigations,
inquiries, or testing.
2. Delays due to legal challenges to patents,
trademarks, performance claims, or other
reasonable related issues.
3. Delays due to any and all safety issues
relating to the installation and performance of
the NRFR and/or related parts.
4. Delays due to any reasonable NRFR production
and/or installation issues which AFT and/or ECC
agree is cause for adding time to the 12 month
window as described.
6.2 AFT and ECC will approve manufacturing sources either
domestic and/or foreign as soon as practicable upon availability
and receipt of necessary engineering drawings.
6.3 AFT and ECC will, within ninety days (90) days of
execution of this License Agreement, agree on the basic
parameters, milestones, and the schedule of AFT's Business
Plan.
6.4 AFT and ECC agree that as long as AFT is making good
faith efforts to execute its Business Plan, ECC will use its best
efforts to support the "Commercial Launch" as described in the
Plan.
SECTION 7.0
INTELLECTUAL PROPERTY RIGHTS
7.1 All right, title and interest in and to all
Licensed Technology, including all modifications, enhancements or
derivatives thereof, and all copies of all or any part thereof,
and all know-how and all proprietary rights, including all
patents, patent applications, copyrights and trade secrets shall
at all times be and remain with ECC or its suppliers, as
applicable. AFT shall have no ownership rights to any Licensed
Technology.
SECTION 8.0
ADDITIONAL
RESPONSIBILITIES OF AFT AND ECC
8.1 ECC shall provide AFT with engineering drawings, and
any enhancements to the product throughout the term of the
agreement, including required tolerances and any other quality
standards it wishes maintained in the manufacturing process. ECC
and AFT will work together to be sure that all outsourced parts
will comply with these standards. ECC and AFT will maintain
duplicate records of "the manufacturing process" in order to
assure continuity and adherence to the established quality
controls.
8.2 AFT will provide ECC with copies of all drawings or
development changes to the manufacturing process. Further AFT
will provide ECC with all drawings and enhancements of the NRFR
technology.
8.3 AFT and ECC will work together to provide one another
with proof of compliance to all identified quality control and
quality assurance standards, and each shall be entitled to
inspect all vendor manufacturing operations to verify compliance
with such standards.
8.4 AFT agrees not to attempt to "Reverse Engineer" or
"Back Engineer" the information supplied by ECC to AFT. AFT
shall not attempt any modification or alteration of the
technology without written authorization from ECC.
8.5 ECC authorizes AFT to continue engineering to expand the
adaptation of the "NRFR Technology" to other vehicle and marine
applications beyond those initially defined.
8.6 AFT and ECC agree to continually monitor the costs of
manufactured components jointly or separately in order to
ascertain the highest quality at the lowest cost. ECC and AFT
must both approve the source of the components.
8.7 AFT agrees to always have its assembly processes
documented, and its premises, or those of any subcontractors
available for inspection by ECC.
8.8 AFT agrees to have the majority of AFT's informational
technology available in response to ECC queries with regard to
Orders received, Orders backlogged, Orders Shipped, Orders in
process and the accompanying financial reconcilements of this
information relevant to ECC.
SECTION 9.0
WARRANTIES, REPRESENTATIONS AND INDEMNIFICATIONS
9.1 ECC and AFT each represent and warrant that they
are duly authorized to enter into this Agreement.
9.2 NO INDEMNITY WHATSOEVER AGAINST PATENTS,
COPYRIGHTS, TRADEMARKS, TRADE SECRETS OR OTHER INTELLECTUAL
PROPERTY, RIGHT IS GRANTED BY EITHER PARTY EXCEPT AS EXPLICITLY
SET FORTH HEREIN AND NEITHER PARTY AGREES TO HOLD THE OTHER PARTY
HERETO HARMLESS EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN.
9.3 ECC PROVIDES THE LICENSED TECHNOLOGY TO AFT ON AN
AS IS BASIS. ECC MAKES NO REPRESENTATION OR WARRANTY OF ANY
KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, REGARDING THE
LICENSED TECHNOLOGY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
9.4 ECC SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR A LOSS OF PROFITS OR
OTHER BENEFITS ARISING OUT OF THIS AGREEMENT, OR OUT OF ANY
BREACH HEREOF. ECC MAKES NO WARRANTIES BEYOND THOSE EXPRESSLY
CONTAINED HEREIN. ALL OTHER EXPRESS OR IMPLIED WARRANTIES,
INCLUDING THOSE OF FITNESS FOR A PARTICULAR PURPOSE AND
MERCHANTABILITY ARE EXCLUDED.
9.5 Indemnity
9.5.1 ECC shall indemnify, defend and hold AFT, its
directors, officers, employees, and affiliates harmless from and
against any and all damages incurred or suffered by AFT (and its
directors, officers, employees, and affiliates) (excluding
incidental or consequential damages suffered or incurred by AFT
directly) as a consequence of third party claims or actions based
upon:
a. any breach of any representation or warranty
made by ECC in this Agreement; and
b. any failure to perform duly and punctually
any contract agreement or undertaking on the part of ECC
contained in this Agreement.
9.5.2 AFT shall indemnify, defend and hold ECC, its
directors, officers, employees, and affiliates harmless from and
against any and all damages incurred or suffered by ECC (and its
directors, officers, employees, and affiliates) (excluding
incidental or consequential damages suffered or incurred by ECC
directly) as a consequence of third party claims or actions based
on:
a. any breach of any representation or warranty
made by AFT in this Agreement; and
b. any failure to perform duly and punctually
any contract agreement or undertaking on the part of AFT
contained in this Agreement; and
c. all claims, damages, liabilities, costs and
expenses (including reasonable attorneys' fees and costs),
arising out of product defects, failures, or misuse of the
Licensed Technology.
SECTION 10.0
CONFIDENTIALITY
10.1 During the term of this Agreement, and for a period of five
(5) years following any
termination hereof, AFT and ECC, and any of their respective
affiliates officers, employees, successors or assigns, if any,
will exercise the same degree of care applied to the protection
of their own proprietary information to keep confidential any and
all Confidential Information disclosed to it by the other party
hereunder.
10.2 The obligations of confidentiality set forth in this Section
10 shall not apply to any portion of the Confidential Information
which:
a. is or becomes known publicly
through no fault of the receiving party; or
b. is learned by the receiving party
from a third party entitled to disclose it; or
c. is already known to the receiving
party before receipt from the disclosing party as shown by
the receiving party's written records; or
d. is independently developed by the receiving party as
shown by the receiving party's written records; or
e. must be disclosed under operation of law.
10.3 AFT agrees to keep and cause its employees to keep the
existence of this Agreement and the nature of ECC's obligations
strictly confidential and not to disclose any information to any
third party or entity, other than as required by governmental
inquiry or as subpoenaed by a court of competent jurisdiction.
AFT will not use, and shall keep its employees from using, ECC as
a reference in marketing any Manufactured Product to any third
party or entity without ECC's prior written consent.
10.4 AFT shall maintain confidentiality agreements,
sufficient to protect the Licensed Technology, if any, and
related documentation, with all of its employees, party
consultants, contractors, and their respective employees. Such
confidentiality agreements will be provided to ECC, upon request.
SECTION 11.0
PATENTS, COPYRIGHTS, AND OTHER PROPRIETARY RIGHTS
11.1 ECC represents and warrants that to the best of its
knowledge, the Licensed Technology does not infringe any patent,
copyright, or other proprietary rights of any other person or
firm in the United States or any foreign country.
11.2 In the event AFT becomes aware of any actual or
threatened infringement of any of the proprietary rights of ECC
or of the Licensed Technology that are related to this Agreement,
AFT shall promptly notify ECC in writing. ECC shall have the
right to bring, at its sole cost and expense, an action for
infringement against any third party and to use AFT's name in
connection therewith if necessary. AFT shall provide all
necessary and reasonable assistance, other than monetary
assistance, to ECC in furtherance of any infringement action.
Any award for damages received by ECC in such action shall be
ECC's sole property.
11.3 ECC hereby grants AFT the right, at AFT's sole
discretion, to prosecute any third party infringers of ECC's
patents either singly or in conjunction with ECC and its
attorneys.
a. Each party shall inform the other party promptly in
writing of any alleged third party infringement, and of any
available evidence of third party infringement, of any ECC
patents. If at any time a third party shall infringe any
ECC patent, ECC may at its discretion;
i) obtain a discontinuance of such infringing
actions if AFT is not a named party to the
lawsuit; or
ii) institute proceedings, including the
bringing of a lawsuit, at ECC's sole expense
against such infringer in its own name, or in
the name of AFT and itself if AFT is a legally
indispensable party, before any relevant
judicial or administrative tribunal.
b. In the event ECC fails to take steps to xxxxx a third
party infringement of any ECC patent with respect to the
Licensed Technology for which ECC exclusively supplies AFT
hereunder, within three (3) months following written notice
of such infringement, ECC hereby permits and authorizes AFT
at AFT's option to institute such proceedings at its own
expense and in ECC's name, if ECC is a legally indispensable
party. If proceedings are instituted, the party who
institutes such proceedings and bears the expense thereof
shall control the prosecution and any settlements thereof,
and the other party shall be entitled to be represented
therein by counsel of its own selection at its own expense.
In the event a party brings an infringement action that
relates to any of the ECC patents, the other party shall
cooperate fully in such action as needed.
SECTION 12.0
MISCELLANEOUS PROVISIONS
12.1 Export. Before exporting or re-exporting any
Licensed Technology, or any technical information, technical data
(including any proprietary information) or the direct product of
such technical data of either party, the receiving party must
fully comply with all then current laws of the United States
Office of Export Administration and other applicable U.S.
governmental agencies.
12.2 Binding Arbitration and Attorneys' Fees. In the
event of any dispute between the parties under this agreement,
both parties agree to binding arbitration from a mutually agreed
upon independent third party. The prevailing party shall be
entitled to recover its costs and reasonable attorneys fees
therein. A prevailing party shall mean a party who receives all
or substantially all of the relief sought by such party.
12.3 Waiver. The delay or failure of a party to
exercise any right, power, remedy, or privilege hereunder or
failure to strictly enforce any breach, violation, default,
provision or condition shall not impair any such right, power,
remedy or privilege nor shall it constitute a waiver thereof or
acquiescence thereto unless explicit written notice is provided.
Any waiver, permit, consent, or approval of any kind regarding
any breach, violation, default, provision or condition of this
Agreement must be in writing and shall be effective only to the
extent specifically set forth in such writing. No partial waiver
of any such right, power, privilege, breach, violation, default,
provision, or condition on any one occasion shall preclude any
other or further exercise thereof or constitute a waiver thereof
or acquiescence thereto on any subsequent occasion unless clear
and express notice thereof in writing is provided.
12.4 Assignment. Neither party shall assign this
Agreement or any of the licenses, or rights, or delegate any
duties created hereunder to any person or entity without the
prior written consent of the other party to a person or entity
with which it has merged or which has otherwise succeeded to all
or substantially all of the business and assets of the assignor,
and which has assumed in writing or by operating of law its
obligations under this Agreement. Any attempt of assignment or
delegation without the required consent shall be void. This
section is not intended to prohibit either party from reasonably
subcontracting work in the course of exercising its rights or
complying with its obligations pursuant to this Agreement.
Notwithstanding the foregoing, ECC may delegate its
responsibilities and/or assign its rights under this Agreement,
in whole or in part, to any corporation that controls, is
controlled by, or is subject to common ownership or control with,
ECC.
12.5 Severability. If any provision of this Agreement
is declared invalid, illegal, or unenforceable by any tribunal,
then such provision shall be reformed to the extent legally
practical to accomplish the legal intent of the parties and such
reformed provision shall be deemed a provision of this Agreement
as though originally included herein. In the event that the
provision deemed invalid, illegal or unenforceable is of such a
nature that it cannot be so adjusted, the provision shall be
deemed deleted from this Agreement as though the provision had
never been included herein. If any provision or portion of this
Agreement is held to be unenforceable or invalid, the parties
agree to negotiate, in good faith, a substitute valid provision
which most nearly effects the parties' intent in entering into
this Agreement. In either case, the remaining provisions of this
Agreement shall remain in full force and effect.
12.6 Remedies Cumulative. Except as explicitly
excluded or limited, all remedies, either under this Agreement or
by law or otherwise afforded to any party, shall be cumulative
and not exclusive or alternative and shall be in addition to all
remedies given hereunder or now or hereafter existing, at law or
in equity, by statute or otherwise. The election of any one or
more remedies by any party shall not constitute a waiver of the
right to pursue other available remedies.
12.7 Public Announcements. The parties shall, after
the Effective Date, make joint announcements regarding this
transaction and their relationship in a mutually agreeable form
and at a mutually agreeable time. Prior to such announcements,
the parties agree to keep confidential and not to disclose to the
public or any third party other than accountants (including
auditors), bankers, investment bankers, attorneys and disclosures
required by law any information regarding this matter without the
prior consent of the other party.
12.8 Notices. Notices provided for under this Agreement will be
sent in writing and will be addressed to the addresses first
above written and may be served in person or sent by Certified
Mail, return receipt requested. A party may change the address
for notification by thirty days prior written notice to the other
party.
12.9 Independent Contractor. As between ECC and AFT, the
employees, methods, equipment, and facilities used by AFT will at
all times be under its exclusive direction and control. Nothing
in this Agreement will be construed to constitute AFT, or any of
its employees or officers, as an agent, employee, associate,
joint venture, or partner of ECC. Nor shall ECC in any way be
considered an owner, officer, employee, agent, associate, joint
venture, or partner of AFT.
12.10 Reservation of Rights. A party's waiver of any of
its remedies afforded here or by law is without prejudice and
will not operate to waive any other remedies which that party
will have available to it.
12.11 Headings. The headings of the provisions of this
Agreement are inserted for convenience only and will not
constitute a part of this Agreement.
12.12 Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of Florida, in the
United States of America, without giving effect to principles of
conflict of law and the state or federal courts within Florida.
The United States of America will be the only courts of competent
jurisdiction.
12.13 Entirety. This Agreement, together with the
attachments and Schedules, as they may be amended from time to
time, embodies the entire understanding between AFT and ECC and
there are no contracts, understandings, conditions, or
representations, oral or written, with reference to the subject
matter of this agreement which are not merged above. Except as
otherwise specifically stated, no modification of this agreement
will be of any force or effect unless: (1) reduced to writing and
signed by both parties; and (2) expressly referred to as being a
modification of this Agreement.
12.14 Binding Effect. This Agreement will be binding on
and inure to the benefit of the successors and permitted assigns
of the parties hereto.
12.15 Presumption. Neither this Agreement, nor any part
hereof, shall be construed against any party hereto simply
because they were the drafter of such provision(s).
12.16 Compliance with Laws. Each party will comply with
all United States, state, and foreign laws, ordinances, and
regulations properly applicable to this Agreement.
12.17 This Agreement may be signed in whole or part,
each part representing the whole.
WHEREFORE, the parties have executed this Agreement as of the
date first written above.
LICENSOR: EMISSION CONTROLS CORP
By:______________________________
Xxx Xxxxx, President
LICENSEE: ADVANCED FUEL TECHNOLOGIES, INC.
By:______________________________
Art Xxxxxxx, President
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