Exhibit 10.15 ▇▇▇▇▇ Labs agreements
MANUFACTURING AND DISTRIBUTION SERVICES
BINDING TERM SHEET
The Manufacturing and Distribution Services Binding Term Sheet (the "Term
Sheet") is made this April 30, 2003 (the "Effective Date"), by and among ▇▇▇▇▇
Labs, Inc., a [corporation] organized under the laws of Taiwan ("▇▇▇▇▇"),
Emergency Filtration Products, Inc., a Nevada corporation ("EFP"), and solely
with respect to Sections II(6), III(2), III(3), III (4), IV, V(3) and VI below,
Chan, ▇▇▇▇▇▇▇▇▇▇▇ and Associates, Inc., a Nevada corporation ("CCA"), pursuant
to which ▇▇▇▇▇ will be the exclusive worldwide manufacturer of EFP's 2H
Nano-Enhanced Surgical Mask and other masks using related technology, and will
provide certain marketing and distribution services to EFP in connection with
the distribution of such mask products in the Asia territory (the "Distribution
Transaction").
The parties contemplate that this Term Sheet will be superceded and
replaced by a definitive written agreement covering the Distribution Transaction
consistent with the material terms of this Term Sheet and reasonably acceptable
to the parties, but if such an agreement is never drafted or entered into then
this Term Sheet shall remain a binding agreement among the parties.
I. Manufacturing
1. Mask Product: EFP's 2H Nano-Enhanced Surgical Mask, and any other
mask products designed for human use which utilizes
the Intellectual Property (as defined in Section
III.2.(e) below) incorporated into the 2H
Nano-Enhanced Surgical Mask (each such mask
referred to herein as a "Nano Mask"). EFP will
provide ▇▇▇▇▇ with the design
and manufacturing specifications for the Nano
Mask prior to the start of fabrication of the Nano
Mask samples so that ▇▇▇▇▇ has sufficient time to
timely fabricate such samples, and ▇▇▇▇▇ will be
required to fabricate no more than five (5) sample
Nano Masks for EFP approval (which shall not be
unreasonably withheld).
2. Exclusive Rights: EFP hereby grants ▇▇▇▇▇ exclusive worldwide rights
to manufacture and fabricate the Nano Masks during
the term of this Term Sheet. EFP agrees not to
assign, license or transfer any rights in or to the
Intellectual Property incorporated in the Nano Mask
which could in any way conflict with, restrict or
limit ▇▇▇▇▇'▇ exclusive rights granted under this
Term Sheet, without the written consent of ▇▇▇▇▇.
▇▇▇▇▇ will be permitted to subcontract or engage
third-parties to fabricate and manufacture the Nano
Masks.
3. Orders: ▇▇▇▇▇ agrees to fabricate and manufacture the Nano
Mask pursuant to a written purchase order, which
shall be subject to acceptance by ▇▇▇▇▇. Each
purchase order will contain (i) the number of Nano
Mask units to be manufactured (which, unless
otherwise approved by ▇▇▇▇▇, shall be no less than
5,000 units) , (ii) any changes to the
specifications for the particular Nano Mask(s)
subject to the order, and (iii) whether ▇▇▇▇▇
is being engaged by EFP to provide Distribution
Services (as defined below) with respect to such the
Nano Masks. Prior to acceptance of a purchase
order, ▇▇▇▇▇ will provide EFP with (a) an
estimate of the Manufacturing Cost (as defined
in Section I.4 below) or the Non-Distributed
Mask Cost (as defined in Section I.4 below) for Nano
Masks covered by the order, (b) the estimated
completion date of the order, and
(c) payment in full for any costs and charges related
to the set-up of the manufacturing of the Nano Masks
(such as molds, die casts and other miscellaneous
costs) incurred by ▇▇▇▇▇. Any changes or
modifications
to an accepted purchase order (including changes
to the specifications of the Nano Mask) shall be in
writing and approved by EFP and ▇▇▇▇▇. Prior to
acceptance of a purchase order, EFP will either
deposit
cash with ▇▇▇▇▇, or establish a standby
letter of credit in favor of ▇▇▇▇▇ from a bank and
with terms
reasonably acceptable to ▇▇▇▇▇ in an amount equal to
no less than [50%] of the estimated Manufacture Cost
(as defined below) or the Non-Distributed Mask
Cost (as defined below) for such order (the "Order
Deposit"). The Order Deposit will be denominated in
U.S. Dollars. ▇▇▇▇▇ will manufacture the Nano Masks
substantially consistent with the specifications
approved by EFP (subject to any approved change
orders).
Title to the Nano Masks and the risk of loss shall
pass to EFP upon completion of the fabrication and
manufacturing of such Nano Masks at the ▇▇▇▇▇ or a
third-party subcontractor facilities.
4. Purchase Price: For each Nano Mask (A) which is a Distributed Mask
(as defined below), EFP will pay ▇▇▇▇▇ an amount
equal
to the cost to ▇▇▇▇▇ of designing, fabricating and
manufacturing for the particular type of Nano Mask
being
manufactured, including any costs of third-parties
engaged by ▇▇▇▇▇ related to the manufacturing of the
Nano Masks, and any cost increases resulting from
any change orders or modifications to the
specifications
("Manufacture Cost"), and (B) which is not a
Distributed Mask, EFP will pay ▇▇▇▇▇ one hundred
and
twenty-five percent (125%) of the Manufacture Cost
of such mask (the "Non-Distributed Mask Cost").
▇▇▇▇▇
will maintain records regarding the Manufacture Costs
and the Non-Distributed Mask Costs of the Nano Masks,
and EFP will have the right upon reasonable advance
notice during business hours to review such records.
5. Payment Terms: For Nano Masks for which ▇▇▇▇▇ has not been engaged
to provide Distribution Services, EFP shall pay ▇▇▇▇▇
the Non-Distributed Mask Cost for such masks within
30 days of completion of the order. For Nano Masks
for
which ▇▇▇▇▇ has been engaged to provide Distribution
Services, EFP shall pay ▇▇▇▇▇ the Manufacture Cost
for
such masks within three (3) days of receipt of
payment by EFP from the customer purchasing such Nano
Masks;
provided that in any case payment of the Manufacture
Cost of the order shall be made by EFP no later than
[60] days of completion of the order.
II. Distribution Services
1. Distribution Services:EFP hereby engages ▇▇▇▇▇ to provide, either
directly or through third-parties, the following distribution and marketing
related services to EFP with respect only to the distribution, sale and
marketing of the Nano Masks (the "Distributed Masks"), in the Asian Territory
(as defined below) (the "Distribution Services"): (i) ▇▇▇▇▇ will arrange for and
oversee inventory and storage of the Distributed Masks following completion of
manufacturing and prior to shipment to the customer, (ii) in consultation with
EFP, ▇▇▇▇▇ will arrange for and oversee shipping and transport of the
Distributed Masks to customers in the Asian Territory (including, arranging for
logistics support and custom clearance of shipments), (iii) ▇▇▇▇▇ will, in
consultation with EFP, identify customers in the Asian Territory, assist EFP in
qualifying such customers and, upon request of EFP and at its expense, conduct
credit checks on potential customers, approach jointly identified customer
prospects in the Asian Territory, and process customer orders (including on
behalf of EFP, customer order tracking, responding to customer inquiries,
invoicing customers on behalf of EFP, collection of customer invoices and
processing of customer payments and product returns), and (iv) ▇▇▇▇▇ will manage
jointly agreed upon marketing and promotion efforts of the Distributed Masks in
the Asian Territory. As a part of providing Distribution Services to EFP, ▇▇▇▇▇
will invoice each customer in the Asian Territory for the Nano Masks purchased
by such customers promptly upon shipment of the applicable Nano Mask order. EFP
will promptly send ▇▇▇▇▇ any orders forms, or customer leads or inquiries for, a
customer in the Asian Territory, and will promptly advise ▇▇▇▇▇ in writing of
the receipt of any payments from customers in the Asian Territory. Any customer
payments received by ▇▇▇▇▇ in respect of the sale of any Distributed Masks will
be held by ▇▇▇▇▇ on behalf of EFP and promptly paid over to EFP (which payment
shall be made no later than the fourteenth (14th) day of the month after the
month in which ▇▇▇▇▇ received the customer payment); provided that ▇▇▇▇▇ will
have a right to deduct and set-off from such payments any unpaid amounts due
▇▇▇▇▇ for the Non-Distributed Mask Cost, the Manufacture Cost, the Distribution
Services Fee (as defined below), and the Margin Fee (as defined below). EFP
shall directly pay the expenses and cost of insurance, and shipping and
logistics relating to distribution of any Distributed Masks in the Asian
Territory will paid directly by EFP, but EFP retains the right to pass on such
expenses and costs to customers of the Distributed Masks.
2. Asian Territory:For purposes of this Term Sheet, the term "Asian
Territory" shall mean all of the countries comprising Asia and the Middle East,
including, but not limited to, China, Hong Kong, South Korea, Taiwan, Singapore,
Thailand, Malaysia, India, Pakistan, Israel, Philippines, and Vietnam.
3. Distribution Service
Fee:In exchange for ▇▇▇▇▇'▇ agreement to provide the Distribution Services
to EFP, EFP will pay ▇▇▇▇▇ a fee equal to the lesser of (i) the costs to ▇▇▇▇▇
of providing the Distribution Services, or (ii) [5]% of Customer Unit Selling
Price (as defined below) (the "Distribution Service Fee"). For purposes of this
Term Sheet, "Customer Unit Selling Price" shall mean per unit purchase price for
each Distributed Mask charged by EFP to its customers in the Asian Territory (as
reflected on the applicable customer invoice). ▇▇▇▇▇ agrees to obtain the prior
approval of EFP (which shall not be unreasonable withheld) with respect to any
advertising or promotional activity relating to the Nano Masks which would
reasonably be expected to cost greater than 5% of the Customer Unit Selling
Price.
4. Margin Fee:In addition to Distribution Service Fee, EFP will pay ▇▇▇▇▇
an amount equal to [42.5]% of the Distribution Margin (as defined below) (the
"Margin Fee"). For purposes of this Term Sheet, "Distribution Margin" shall mean
with respect to each Distributed Mask an amount equal to the difference of (a)
the Customer Unit Selling Price, and (b) the sum of (i) per unit Manufacture
Cost of such Distributed Mask, plus (ii) the Distribution Service Fee.
5. ▇▇▇▇▇ Fee Payments: Payment of the Distribution Service Fee and the
Margin Fee shall be made in U.S. Dollars, and will
be due
and payable within three (3) days of receipt of
payment by EFP (or by ▇▇▇▇▇ on behalf of EFP) of
amounts
due in respect of Distributed Masks; provided that
in any case payment of the Distribution Service Fee
and
the Margin Fee shall be made by EFP no later than
[60] days of the date of the invoice relating to
such
Distributed Mask. The risk of customer bad debt or
non-payment [and returns] shall rest entirely
with EFP.
6. CCA Services: EFP and ▇▇▇▇▇ both acknowledge and agree that CCA has
been engaged by EFP to provide certain management
and
advisory services related to the Distribution
Transaction as requested by EFP from time to time;
provided
that during the term of this Term Sheet such
services shall not exceed ten (10) hours in any
given week or
one hundred twenty (120) hours in any three month
period (the "CCA Services"). In exchange for
CCA's
agreement to provide the CCA Services, EFP will
pay CCA a fee equal to [15]% of the Distribution
Margin
(the "CCA Fee"). Payment of the CCA Fee will be made
in U.S. Dollars, and will be due and payable
promptly
(but in no event later than the fourteenth (14th)
day of the month after the month in which EFP (or
▇▇▇▇▇
on behalf of EFP) received the customer payment of
amounts due in respect of Distributed Masks;
provided
that in any case payment of the CCA Fee shall be
made by EFP no later than [60] days of the date of
the
invoice relating to such Distributed Masks.
7. Customer Reports: ▇▇▇▇▇ agrees to maintain written records of behalf
of EFP of (i) customer orders for Distributed
Masks,
(ii) customer invoices and ▇▇▇▇▇▇▇▇ for Distributed
Masks sold such customers, and (iii) payment
receipts
from customer in respect of such invoices. No
more than once per calendar year will EFP have the
right
upon reasonable advance notice during business hours
to review the above records.
III. Representations, Warranties and Covenants
1. By ▇▇▇▇▇: ▇▇▇▇▇ hereby makes the following representations and
warranties to EFP, as of the date of this Term Sheet:
(a) Good Standing and Due Authorization and Authority. ▇▇▇▇▇ is a
[corporation] duly organized, validly existing and in good standing under the
laws of Taiwan, and has all requisite [corporate] power and authority to carry
on its business as now conducted. All [corporate] action on the part of the
▇▇▇▇▇'▇ board of directors and shareholders necessary for the authorization,
execution, delivery of, and the performance of all obligations of the ▇▇▇▇▇'▇
under this Term Sheet has been taken, and is in full force and effect. ▇▇▇▇▇ has
full legal right, power and authority to enter into and perform its obligations
under this Term Sheet, and this Term Sheet has been executed on behalf of ▇▇▇▇▇
by a duly authorized officer of ▇▇▇▇▇.
(b) Enforceability. This Term Sheet when executed and delivered by ▇▇▇▇▇
will constitute valid and legally binding obligation of ▇▇▇▇▇, enforceable in
accordance with its respective terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or others laws of general application
relating to or affecting the enforcement of creditors' rights generally, and
(ii) the effect of rules of law governing the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of this Term Sheet by ▇▇▇▇▇,
and the performance of ▇▇▇▇▇'▇ obligations under this Term Sheet, will not
conflict with, or (with or without notice or lapse of time, or both) result in a
termination, breach, default, impairment or violation of (i) any provision of
▇▇▇▇▇'▇ charter documents or other governance document of ▇▇▇▇▇, (ii) any
agreement, contract, lease, loan or other obligation of ▇▇▇▇▇ or by which ▇▇▇▇▇
is bound, or (iii) of any judgment, order, writ, decree, or foreign, federal or
state law, statute, rule or regulation applicable to ▇▇▇▇▇ or by which it is
bound.
(d) Required Consents. All consents, approvals, orders or authorizations
of, or registrations, qualifications, designations, declarations or filings
with, any foreign federal, state or local governmental authority or any other
person or entity on the part of ▇▇▇▇▇ required in connection with the execution
and delivery of this Term Sheet by ▇▇▇▇▇, and the performance of all obligations
of its under this Term Sheet have been taken and are in full force and effect.
2. By EFP: EFP hereby makes the following representations and
warranties to ▇▇▇▇▇ and CCA, respectively, as of the
date of this Term Sheet:
(a) Good Standing and Due Authorization and Authority. EFP is a Nevada
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada, and has all requisite corporate power and authority to
carry on its business as now conducted. All corporate action on the part of the
EFP's board of directors and shareholders necessary for the authorization,
execution, delivery of, and the performance of all obligations of the EFP's
under this Term Sheet has been taken, and is in full force and effect. EFP has
full legal right, power and authority to enter into and perform its obligations
under this Term Sheet, and this Term Sheet has been executed on behalf of EFP by
a duly authorized officer of EFP.
(b) Enforceability. This Term Sheet when executed and delivered by EFP will
constitute valid and legally binding obligation of EFP, enforceable in
accordance with its respective terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or others laws of general application
relating to or affecting the enforcement of creditors' rights generally, and
(ii) the effect of rules of law governing the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of this Term Sheet by EFP, and
the performance of EFP's obligations under this Term Sheet, will not conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach, default, impairment or violation of (i) any provision of
EFP's Articles of Incorporation, Bylaws or other governance document of EFP,
(ii) any agreement, contract, lease, loan or other obligation of EFP or by which
EFP is bound, or (iii) of any judgment, order, writ, decree, or foreign, federal
or state law, statute, rule or regulation applicable to EFP or by which it is
bound.
(d) Required Consents. All consents, approvals, orders or authorizations
of, or registrations, qualifications, designations, declarations or filings
with, any foreign, federal, state or local governmental authority or any other
person or entity on the part of EFP required in connection with the execution
and delivery of this Term Sheet by EFP, and the performance of all obligations
of its under this Term Sheet have been taken and are in full force and effect.
(e) EFP Intellectual Property. EFP owns all right, title and interest in
and to the Intellectual Property (as defined below) rights incorporated into or
used in the design, fabrication or manufacture of any Nano Mask (free of any and
all claims, liens, encumbrances, rights of third parties or restrictions), and
such Intellectual Property (i) does not and will not infringe upon or violate
any Intellectual Property right of any third-party, and (ii) is not subject to
any liens, licenses, obligations, encumbrances or other third-party rights (oral
or written) that could limit or adversely affect the performance of EFP's
obligations under this Term Sheet. For Purposes of this Term Sheet,
"Intellectual Property" means all worldwide inventions, patents, patent
applications, design rights and similar invention rights, copyrights, copyright
applications, trade secrets, know-how and other intangible property or
proprietary rights of any kind recognized anywhere in the world under any state
or national statute or treaty or common law right.
(f) EFP Product Warranty. The Nano Masks will perform as promised by EFP
and as reflected in any advertising and marketing materials prepared or approved
by EFP.
3. By CCA: CCA hereby makes the following representations and
warranties to EFP, respectively, as of the date of
this Term Sheet:
(a) Good Standing and Due Authorization and Authority. CCA is a Nevada
corporation duly organized, validly existing and in good standing under the laws
of Nevada, and has all requisite corporate power and authority to carry on its
business as now conducted. All corporate action on the part of the CCA's board
of directors and shareholders necessary for the authorization, execution,
delivery of, and the performance of all obligations of the CCA under this Term
Sheet has been taken, and is in full force and effect. CCA has full legal right,
power and authority to enter into and perform its obligations under this Term
Sheet, and this Term Sheet has been executed on behalf of CCA by a duly
authorized officer of CCA.
(b) Enforceability. This Term Sheet when executed and delivered by CCA will
constitute valid and legally binding obligation of CCA, enforceable in
accordance with its respective terms, except as may be limited by (i) applicable
bankruptcy, insolvency, reorganization or others laws of general application
relating to or affecting the enforcement of creditors' rights generally, and
(ii) the effect of rules of law governing the availability of equitable
remedies.
(c) No Conflict. The execution and delivery of this Term Sheet by CCA, and
the performance of CCA obligations under this Term Sheet, will not conflict
with, or (with or without notice or lapse of time, or both) result in a
termination, breach, default, impairment or violation of (i) any provision of
CCA's Articles of Incorporation, Bylaws or other governance document of CCA, or
(ii) of any judgment, order, writ, decree, or foreign, federal or state law,
statute, rule or regulation applicable to CCA or by which it is bound.
4. Confidentiality:
(a) Definition. "Confidential Information" means: (i) any non-public
information of a party, including, without limitation, any information relating
to a party's current and planned products and services, technology, techniques,
know-how, research, engineering, designs, finances, accounts, procurement
requirements, manufacturing, customer lists, business forecasts and marketing
plans; (ii) any other information of a party that is disclosed in writing and is
conspicuously designated as "Confidential" at the time of disclosure. The
obligations in Section III(4)(b) below will not apply to the extent any
information: (i) is or becomes generally known to the public through no breach
of this Term Sheet by the receiving party; (ii) was rightfully in the receiving
party's possession at the time of disclosure, without an obligation of
confidentiality; (iii) is independently developed by the receiving party without
use of the disclosing party's Confidential Information; or (iv) is rightfully
obtained by the receiving party from a third party without restriction on use or
disclosure.
(b) Obligations. Each party will not use the other party's Confidential
Information, except as necessary for the performance of this Term Sheet, and
will not disclose such Confidential Information to any third party, except to
those of its employees, agents, representatives and subcontractors that need to
know such Confidential Information for the performance of this Term Sheet. Each
party will use all reasonable efforts to maintain the confidentiality of all of
the other party's Confidential Information in its possession or control, but in
no event less than the efforts that it ordinarily uses with respect to its own
confidential information of similar nature and importance. The foregoing
obligations will not restrict any party from disclosing the other party's
Confidential Information or the terms and conditions of this Term Sheet: (i)
pursuant to the order or requirement of a court, administrative agency, or other
governmental body, provided that the party required to make such a disclosure
gives reasonable notice to the other party to enable it to contest such order or
requirement; (ii) on a confidential basis to its legal or professional financial
advisors; or (iii) as required under applicable securities regulations.
5. Taxes: The Non-Distributed Mask Cost, the Manufacture Cost,
the Distribution Services Fee, the Margin Fee and the
CCA Fee are exclusive of all sales, value-added, withholding
and all other taxes or duties ("Taxes"). EFP
will pay for all Taxes assessed or incurred in connection
with the manufacture, sale, marketing and
distribution of the Nano Mask under this Term Sheet, and the
performance of the Distribution Services and
the CCA Services (except for taxes payable on ▇▇▇▇▇'▇ or CCA's
net income). EFP will promptly reimburse
▇▇▇▇▇ or CCA, as the case may be, for any Taxes that either such
party may be required pay on EFP's behalf
in connection with this Term Sheet.
IV. Term and Termination
1. Term: This Term Sheet commences on the Effective Date
and, shall remain in effect unless terminated
earlier in
accordance with its terms.
2. Termination: This Term Sheet may be terminated, as follows: (i)
upon the written agreement of ▇▇▇▇▇ and EFP to
terminate
this Term Sheet (provided that any termination of
Section III(6) will require the written consent of
CCA);
(ii) by either ▇▇▇▇▇ or EFP, at any time if the other
party breaches any material term of this Term Sheet
and fails to cure that breach within thirty (30)
days after notice thereof from the non-breaching party;
provided that ▇▇▇▇▇ may also terminate this Term Sheet,
at any time, if EFP breaches any of its payment
obligations under this Term Sheet and fails to cure that
breach within five (5) days after notice thereof
from ▇▇▇▇▇; and (iii) by either ▇▇▇▇▇ or EFP, if the
other party becomes the subject of a voluntary or
involuntary petition in bankruptcy or proceeding relating
to insolvency, receivership, liquidation, or
composition for the benefit of creditors; provided that CCA
may voluntarily terminate its obligations under
Section II(6) of this Term Sheet upon five (5) days written
notice to ▇▇▇▇▇ and EFP.
3. Effect of Termination: Upon the termination of this Term Sheet
(including a voluntary termination by CCA of its obligation under Section II(6)
under the preceding Section): (i) all covenants and obligations of the parties
shall terminate without liability, except (a) EFP shall pay in accordance with
this Term Sheet (1) to ▇▇▇▇▇, the Non-Distributed Mask Cost and the Manufacture
Cost, as the case may be, for any Nano Mask orders which have been completed or
which are in the process of being manufactured, and the Distribute Service Fee
and Margin Fee with respect to any Distributed Masks which have been invoiced,
and (2) to CCA, the CCA Fee with respect to any Distributed Masks which have
been invoiced; and (b) the rights and obligations of the parties under Sections
I(5), II(3), II(4), II(5), II(6)(with respect to EFP's obligation to pay the CCA
Fee), III, IV, V and VI shall survive any termination of this Term Sheet; (ii)
at ▇▇▇▇▇'▇ option, all purchase orders or portions thereof remaining undelivered
on the date of termination may within two (2) days be canceled; and (iii) each
party will promptly return to the other party all Confidential Information of
the other party in its possession or control.
V. Indemnity
1. ▇▇▇▇▇ Indemnity: ▇▇▇▇▇ agrees to indemnify, defend and hold
harmless EFP, and its officers, directors, employees,
representatives, agents and attorneys (the "EFP Parties")
and CCA, and its officers, directors, employees,
representatives, agents and attorneys (the "CCA Parties"),
against any liability, damages, expenses, and
costs (including attorney's fees) incurred by EFP or any
EFP Party, or CCA or any CCA Party, based on or
arising out of any breach or violation of any
representation warranty, covenant or obligation of
▇▇▇▇▇
under this Term Sheet
2. EFP Indemnity: EFP agrees to indemnify, defend and hold harmless
▇▇▇▇▇, and its officers, directors, employees,
representatives, agents and attorneys (the "▇▇▇▇▇
Parties"), and CCA and the CCA Parties, against any
liability, damages, expenses, and costs (including
attorney's fees) incurred by ▇▇▇▇▇ or any ▇▇▇▇▇ Party,
or CCA or any CCA Party, based on or arising out of (i)
any breach or violation of any representation
warranty, covenant or obligation of EFP under this Term
Sheet, (ii) any investigation, claim or suit
brought against ▇▇▇▇▇ or any ▇▇▇▇▇ Party to the extent
that it is based upon a third-party claim that a
Nano Mask infringes or misappropriates any
Intellectual Property of any third-party, and (iii) any
investigation, claim or suit brought against ▇▇▇▇▇ or any
▇▇▇▇▇ Party, or CCA or any CCA Party, relating to
product liability, personal injury or death arising out of
any Nano Mask.
3. Limited Damages: THE PARTIES ACKNOWLEDGE THAT ▇▇▇▇▇ IS ACTING SOLELY AS
A THIRD PARTY MANUFACTURER AND DISTRIBUTOR OF THE NANO MASK AND THAT EFP SHALL
BE SOLELY RESPONSIBLE TO ▇▇▇▇▇ AND TO THIRD PARTIES FOR ALL LIABILITY, CLAIMS,
DAMAGES, OBLIGATIONS AND COSTS AND EXPENSES RELATED TO THE NANO MASK MADE OR
DISTRIBUTED BY ▇▇▇▇▇ UNDER THIS TERM SHEET. IN NO EVENT WILL ▇▇▇▇▇ BE LIABLE TO
EFP, CCA OR ANY THIRD PARTY FOR ANY LIABILITY, CLAIMS, OBLIGATIONS, DAMAGES,
COSTS OR EXPENSES, INCLUDING WITHOUT LIMITATION, ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO,
LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF
GOODWILL), OR FOR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS, ARISING OUT OF,
RELATING TO OR IN CONNECTION WITH THIS TERM SHEET OR THE USE OR PERFORMANCE OF
ANY EFP PRODUCTS (INCLUDING THE NANO MASKS), WHETHER SUCH LIABILITY ARISES FROM
ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY OR OTHERWISE, WHETHER OR NOT EFP HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH LOSS OR DAMAGE. THE PARTIES HAVE AGREED THAT THESE LIMITATIONS WILL
SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS TERM SHEET IS
FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. ▇▇▇▇▇ MAKES NO WARRANTIES, AND
EXPRESSLY DISCLAIMS ANY WARRANTIES, REGARDING MERCHANTABILITY OF THE NANO MASKS
AND FITNESS OF SUCH MASKS FOR A PARTICULAR PURPOSE OR USE.
4. Total Liability: ▇▇▇▇▇'▇ TOTAL LIABILITY TO EFP UNDER THIS TERM SHEET,
FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED
TO THE PAYMENTS ACTUALLY RECEIVED FROM EFP UNDER THIS TERM SHEET.
CCA'S TOTAL LIABILITY TO EFP UNDER THIS TERM SHEET, FROM ALL CAUSES OF
ACTION AND UNDER ALL THEORIES OF LIABILITY, WILL BE LIMITED TO THE PAYMENTS
ACTUALLY RECEIVED FROM EFP UNDER THIS TERM SHEET.
VI. General Provisions
1. Assignment: No party may not assign or transfer this Term Sheet, in whole
or in part, by operation of law or otherwise,
without the prior written consent of ▇▇▇▇▇ and EFP, and any
attempt to assign or transfer this Term Sheet,
without such consent, will be null and of no effect. Subject
to the foregoing, this Term Sheet will bind
and inure to the benefit of each party's permitted successors
and assigns.
2. Governing Law,
Venue: This Term Sheet will be governed by and construed in
accordance with the laws of the State of Delaware,
excluding its conflict of laws principles. The parties
disclaim application of the United Nations
Convention on Contracts for the International Sale of Goods.
Any legal action or proceeding arising under
this Term Sheet will be brought exclusively in the federal or
state courts located in the Northern District
of California and the parties hereby irrevocably consent to
the personal jurisdiction and venue therein.
3. Nonexclusive: Except as expressly set forth in this Term Sheet,
the exercise by either party of any of its remedies
under
this Term Sheet will be without prejudice to its
other remedies under this Term Sheet or otherwise.
4. Notices: All notices, approvals, consents and other communications
required or permitted under this Term Sheet will be in writing and delivered by
confirmed facsimile transmission, by courier or overnight delivery service with
written verification of receipt, or by registered or certified mail, return
receipt requested, postage prepaid, and, in each instance, will be deemed given
upon receipt. All such notices, approvals, consents and other communications
will be sent to the addresses set forth below a party's name or to such other
address as may be specified by either party to the other party in accordance
with this Section.
5. Force Majeure: No party will be responsible for any failure or
delay in its performance under this Term Sheet
(except for
any payment obligations) due to causes beyond its
reasonable control, including, but not limited to,
labor
disputes, strikes, lockouts, shortages of or
inability to obtain energy, raw materials or
supplies, war,
terrorism, riot, or acts of God.
6. Relationship: The parties are independent contractors and this
Term Sheet will not establish any relationship
of
partnership, joint venture, employment, franchise
or agency between the parties. Neither party will
have
the power to bind the other party or to incur any
obligations on its behalf, without the other
party's
prior consent.
7. Amendment: This Term Sheet may be amended, or any term or provision
hereof waived, with the written consent of ▇▇▇▇▇ and EFP; provided that the
amendment of Sections II(6) or III(3), or the waiver of any provision in this
Term Sheet which inures to the benefit of CCA shall also require the written
consent of CCA. The failure by either party to enforce any provision of this
Term Sheet will not constitute a waiver of future enforcement of that or any
other provision.
8. Severability:If for any reason a court of competent jurisdiction finds
any provision of this Term Sheet invalid or unenforceable, that provision of the
Term Sheet will be enforced to the maximum extent permissible and the other
provisions of this Term Sheet will remain in full force and effect.
9. Entire Agreement: This Term Sheet, including all exhibits hereto,
constitutes the complete and exclusive understanding and agreement between the
parties regarding its subject matter and supercedes all prior or contemporaneous
agreements or understandings, whether written or oral, relating to its subject
matter.
10. Counterparts: This Term Sheet may be executed in counterparts, each of
which will be deemed an original, but all of which together will constitute one
and the same instrument.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have executed this Term Sheet as of the
Effective Date.
EMERGENCY FILTRATION PRODUCTS, INC.
By: __\s\ ▇▇▇▇▇▇▇ Beplate___________
Name: _Douglas Beplate____________
Title: __President_________________
Address: ________________________
_______________________________
_______________________________
▇▇▇▇▇ LABS, INC.
By: _\s\ ▇▇▇▇▇ ▇. Shu_______________
Name: _Louis P. Shu_______________
Title: _President__________________
Address: ________________________
_______________________________
_______________________________
With respect only to Sections II(6), III(2), III(3), III (4), IV, V(3) and VI,
CHAN, ▇▇▇▇▇▇▇▇▇▇▇ & ASSOCIATES, INC.
By: _\s\ Lin L. Chan________________
Name: _Lin L. Chan________________
Title: __CEO_____________________
Address: ________________________
_______________________________
_______________________________
[Execution Page to Manufacturing and Distribution Binding Term Sheet]