AMENDED AND RESTATED RESEARCH, DEVELOPMENT AND SUPPLY AGREEMENT between EPIR TECHNOLOGIES, INC. and SUNOVIA ENERGY TECHNOLOGIES, INC. Original Effective Date: November 1, 2007 Amended and Restated as of: January 24, 2008
EXHIBIT
10.1
Execution
Version
AMENDED
AND RESTATED
between
EPIR
TECHNOLOGIES, INC.
and
SUNOVIA
ENERGY TECHNOLOGIES, INC.
Original
Effective Date: November 1, 2007
Amended
and Restated as of: January 24, 2008
1
TABLE
OF CONTENTS
Page
(s)
|
ARTICLE
2.SCOPE OF AGREEMENT
|
|
7
|
|
ARTICLE
3.TERM AND TERMINATION
|
|
8 |
|
3.1.Term.
|
8
|
|
3.2.Termination
for Cause
|
8
|
|
3.3.Termination
for Force Majeure
|
9 |
|
3.4.Effects
of Termination
|
9 |
|
3.5.Survival
|
9 |
|
ARTICLE
▇.▇▇▇▇▇ POSITION OF THE PARTIES
|
|
9
|
|
4.1.Public
Announcements
|
9 |
|
4.2.Independent
Contractors
|
10 |
|
▇.▇.▇▇
Affirmative Obligation
|
10 |
|
ARTICLE
5.OBLIGATIONS OF EPIR
|
|
10 |
|
5.1.Development.
|
10 |
|
▇.▇.▇▇▇▇▇▇▇▇▇
Support
|
11 |
|
5.3.Technical
Support
|
12
|
|
ARTICLE
6.OBLIGATIONS OF SETI
|
|
12 |
|
6.1.Scheduled
Payments
|
12 |
|
▇.▇.▇▇▇▇▇▇▇▇▇
And Technical Support
|
12
|
|
6.3.Promotion
|
13 |
|
ARTICLE
7.PURCHASE AND SUPPLY OF PRODUCT.
|
|
14
|
|
7.1.Grant
Of Exclusivity, Obligation To Supply EPIR Products.
|
14
|
|
7.2.Obligation
to Supply.
|
15 |
|
7.3.Inspection
And Certification
|
15
|
|
7.4.Packaging
|
15 |
|
ARTICLE
8.FORECASTS, ORDERS, AND CAPACITY
|
|
16 |
|
8.1.Forecasts,
Order Limits And Capacity.
|
16
|
|
8.2.Purchase
Orders.
|
16 |
2
|
ARTICLE
9.PRICE
|
|
17 |
|
9.1.Purchase
Price Of The EPIR Products.
|
17 |
|
ARTICLE
10.SHIPMENT AND INVOICING
|
|
18 |
|
▇▇.▇.▇▇▇▇▇▇▇▇
Terms And Partial Shipments.
|
18 |
|
10.2.Exporter
Of Record.
|
18 |
|
10.3.Export
Costs And Documents.
|
18 |
|
10.4.Foreign
Corrupt Practices Act.
|
18 |
|
10.5.EPIR
Product and Services Payment Terms.
|
19 |
|
10.6.Default
In Payment Obligations.
|
19 |
| ARTICLE 11.ACCEPTANCE OF EPIR PRODUCT |
|
19 |
|
11.1.EPIR
Product Conformity.
|
19 |
|
11.2.Remedies
For Non Conforming EPIR Product.
|
20 |
| ARTICLE 12. PRODUCTION OF EPIR Products |
|
20 |
|
12.1.Production.
|
20 |
|
12.2.Testing.
|
21 |
|
12.3.Permits
And Licenses.
|
21
|
|
12.4.Regulatory
Requirements.
|
21 |
|
12.5.Changes
In Manufacturing.
|
21 |
|
ARTICLE
13.TRADEMARKS
|
|
22
|
|
ARTICLE
14.REPRESENTATIONS AND WARRANTIES
|
|
22 |
|
▇▇.▇.▇▇▇▇▇▇
Representations.
|
22 |
|
14.2.EPIR
Warranties.
|
22 |
|
14.3.Disclaimer
Of Warranties.
|
22 |
|
14.4.SETI
Warranties.
|
23
|
|
14.5.Disclaimer
Of Warranties.
|
23 |
| ARTICLE 15.LIMITATION OF LIABILITY, WAIVER OF SUBROGATION |
|
23 |
|
15.1.Limitation
Of Liability.
|
23 |
|
15.2.Waiver
Of Subrogation.
|
23 |
|
ARTICLE
16.INDEMNIFICATION
|
|
24 |
|
16.1.SETI
Indemnification.
|
24 |
3
|
16.2.EPIR
Indemnification.
|
24 |
|
16.3.Indemnitee
Obligations.
|
24 |
|
ARTICLE
▇▇.▇▇▇▇▇▇▇▇▇
|
|
25 |
|
17.1.SETI
Insurance.
|
25 |
|
17.2.EPIR
Insurance.
|
25 |
|
ARTICLE
18.INTELLECTUAL PROPERTY
|
|
25
|
|
18.1.Definition
Of Intellectual Property.
|
25 |
|
18.2.Existing
Intellectual Property.
|
25 |
|
18.3.Joint
Patent Rights Developed During The Term.
|
26
|
|
18.4.Prosecution
Of Joint Patent Rights.
|
26 |
|
18.5.Licenses
And Transfers Of Joint Patent Rights.
|
26 |
|
18.6.Enforcement
Of Joint Patent Rights.
|
26 |
|
18.7.Disclaimer.
|
27 |
|
18.8.Confidentiality.
|
28 |
|
ARTICLE
19.NONDISCLOSURE AND PUBLICITY
|
|
28 |
|
19.1.Confidentiality.
|
28 |
|
19.2.Third
Party Disclosure.
|
28 |
|
19.3.Litigation
And Governmental Disclosure.
|
29 |
|
19.4.Limitation
Of Disclosure.
|
30 |
|
19.5.Publicity
and SEC Filings.
|
30 |
|
ARTICLE
20.FORCE MAJEURE
|
|
30 |
| ARTICLE 21. MISCELLANEOUS |
|
30 |
|
21.1.Entire
Agreement
|
31 |
|
▇▇.▇.▇▇
Waiver
|
31 |
|
21.3.Assignment
|
31 |
|
21.4.Governing
Law
|
31 |
|
21.5.Headings
|
31 |
|
21.6.Counterparts
|
31 |
|
21.7.Remedies
|
31 |
|
21.8.Notices
|
31 |
JAMENDED AND RESTATED RESEARCH, DEVELOPMENT AND SUPPLY AGREEMENT
4
THIS
AMENDED AND RESTATED RESEARCH, DEVELOPMENT AND SUPPLY AGREEMENT (HEREINAFTER
REFERRED TO AS THE “AGREEMENT”) IS ENTERED INTO AS OF THIS 24th DAY OF
JANUARY,
2008 (THE “AMENDMENT EFFECTIVE DATE”), AND IS ENTERED INTO BY AND
BETWEEN:
EPIR
Technologies, Inc., a corporation incorporated under the laws of the state
of
Illinois and having its main place of business at:
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
represented
by:
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, President
(hereafter
referred to as “EPIR”), as the first party,
AND
Sunovia
Energy Technologies, Inc., a company incorporated under the laws of the state
of
Nevada and having its main place of business at:
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
represented
by:
▇▇▇▇
▇▇▇▇▇, Chief Executive Officer
(hereafter
referred to as “SETI”), as the second party,
Jointly
referred to hereafter as the “Parties” and referred to severally as a
“Party”.
PREAMBLE
Whereas,
EPIR will develop New Technologies and EPIR Products (as those terms are defined
herein) that are, or will be, identified and defined by a Technology Development
Board (“TDB”) which will be constituted by the Parties as set forth in Exhibit A
of this Agreement;
Whereas,
subject to the terms and conditions herein, EPIR will develop the necessary
manufacturing processes for the EPIR Products;
Whereas,
subject to the terms and conditions herein, EPIR will manufacture and supply
EPIR Independent Products to SETI;
5
Whereas,
SETI is developing products that will require the use of EPIR Products or EPIR
Independent Products as critical elements thereof and is also developing
distribution channels to sell EPIR Products, EPIR Independent Products and
SETI
Products incorporating EPIR Products or EPIR Independent Products (as those
terms are defined herein);
Whereas,
SETI will provide Scheduled Payments to EPIR that shall be specifically
allocated by EPIR to the research, development and creation of mass
manufacturing for the New Technologies and EPIR Products to the extent set
forth
in Exhibit A-1;
Whereas,
Sun Energy Solar, Inc. (“SESI”) and EPIR entered a Research, Development and
Supply Agreement dated November 1, 2007 (the “Initial Agreement” dated as of the
"Effective Date"), which shall be amended and restated by this
Agreement;
Whereas
SESI was merged into a wholly-owned subsidiary of SETI ("Merger Sub"), and
Merger Sub then assigned the Initial Agreement to SETI;
Whereas,
SETI and EPIR subsequently entered into a Letter of Intent (the “LOI”) dated
November 30, 2007;
Whereas,
SETI and EPIR are entering into this Agreement in order to incorporate various
terms of the LOI into a definitive agreement; and
Whereas,
the Parties intend to collaborate for their mutual benefit and in the interest
of the market to promote and sell compatible and innovative products and
solutions to their customers.
NOW
THE
PARTIES HERETO AGREE AS FOLLOWS:
ARTICLE
1. DEFINITIONS
As
used
herein the following terms, as including initial capital letters, shall have
the
following meanings:
1.1. “EPIR”
shall mean EPIR Technologies, Inc., an Illinois corporation.
1.2. "EPIR
Independent Products" shall mean any and all products owned or controlled by
EPIR to the extent made available for sale by EPIR to SETI (including infrared
sensors, biosensors), but excluding the EPIR Products.
1.3. “EPIR
Products” shall mean the products that are defined by the TDB, funded by SETI
and developed by EPIR under this Agreement, including but not limited to one
or
more versions of photovoltaic solar cells or solar cell encapsulate technologies
meeting the applicable Product Specifications.
1.4. “Firm
Purchase Order” is defined in Section 8.2.1.
1.5. “Forecast”
is defined in Section 8.1.1.
1.6. “Minimum
Purchase Commitment” is defined in Exhibit C.
6
1.7. “New
Technology”, or “New Technologies” when referring to the plural, shall mean any
and all improvement, development, discovery, computer program, device, trade
secret, method, know-how, process, technique or the like, whether or not written
or otherwise fixed in any form or medium, regardless of the media on which
contained, conceived of, created or reduced to practice during the course of
performing this Agreement, whether or not patentable or copyrightable (but
in
all cases expressly excluding any such items relating to the EPIR Independent
Products).
1.8. “Product
Price Listing” shall mean a price listing for a EPIR Independent Product or EPIR
Product in a form substantially as set forth in Exhibit E hereof.
1.9. “Product
Specifications” shall mean, (a) for each EPIR Product, characteristics of such
EPIR Product as are agreed to by the TDB as "Product Specifications" therefor
and (b) for each EPIR Independent Product, characteristics of such product
as
provided by EPIR to SETI as "Product Specifications" therefor. Such
characteristics shall include, without limitation, the part number, dimensions
and minimum performance criteria, in a level of detail at least sufficient
to
aid in the marketing, use and sale of the EPIR Product, the EPIR Independent
Product, or the SETI Product into which the EPIR Product or EPIR Independent
Product is incorporated. The performance criteria may include, but
not be limited to, solar to electrical energy conversion rates, operating
temperature ranges, necessary operating environment parameters, resistance
to
the elements, energy storage capacities, impedance measurements, interface
with
any power or control sources and/or rated voltage and current
outputs.
1.10. “RMA”
is
defined in Exhibit G.
1.11. “Scheduled
Payments” shall mean the payments listed in Exhibit A-1.
1.12. “SETI”
shall mean Sunovia Energy Technologies, Inc., a Nevada corporation.
1.13. “SETI
Products” shall mean products manufactured by SETI or on SETI’s behalf, which
incorporate one or more EPIR Products or EPIR Independent Products.
1.14. “TDB”
shall mean the Technology Development Board, the constitution, duties and other
pertinent aspects of which are set forth in Exhibit A hereof.
ARTICLE
2. SCOPE
OF AGREEMENT; PRIOR ASSIGNMENTS; LOI; STOCK PURCHASE
AGREEMENT
2.1. Scope. The
scope of this Agreement is to: (i) establish the general, technical and business
rules of the relationship between the Parties; (ii) define the strategic intent
and purposes of the Agreement; and (iii) set forth the respective obligations
of
the Parties under this Agreement. Each Schedule and/or Exhibit to
this Agreement contains important representations and obligations of the Parties
and forms an integral part of this Agreement. Any and all Schedules
and/or Exhibits to this Agreement are incorporated into this Agreement by this
reference.
7
2.2. Prior
Assignments. The Parties acknowledge that the Initial Agreement
was assigned from SESI to Merger Sub by effect of the merger between such two
entities. SETI hereby acknowledges, represents and warrants that (a)
the Initial Agreement was then assigned from Merger Sub to SETI and (b) that
SETI has received and assumed the Initial Agreement and all rights, obligations
and liabilities of SESI and Merger Sub under the Initial Agreement.
2.3. LOI. The
LOI is hereby terminated and shall have no further force or effect.
2.4. Stock
Purchase Agreement and Stock Issuances. The Parties will execute
a Stock Purchase Agreement (the “SPA”) simultaneously with the execution of this
Agreement, which will govern the issuance to SETI of certain common stock of
EPIR and the issuance to EPIR of certain common stock of SETI (collectively,
the
"SPA Stock Issuances"). This Agreement is conditional upon the full
execution of the SPA and closing of the SPA Stock Issuances pursuant to the
SPA.
ARTICLE
3. TERM
AND TERMINATION
3.1. Term. The
Initial Agreement was effective on the Effective Date and is currently in full
force and effect. This Agreement is effective on the Amendment
Effective Date and shall expire on the 1st day of January, 2018 (the time
between the Effective Date and this expiration date being the “Initial Term”),
unless terminated earlier according to the provisions of this Article or as
expressly permitted elsewhere herein. Upon the expiration of the
Initial Term, this Agreement shall automatically renew for subsequent one (1)
year periods (each a “Renewal Term”) unless terminated, in writing, by a duly
authorized representative of either Party, at least one hundred and eighty
(180)
days prior to the expiration of the Initial Term or the then-current Renewal
Term. The Initial Term, together with the Renewal Terms (if any), are
referred to in this Agreement as the “Term”.
3.2. Termination
for Cause. Either Party may terminate this Agreement for cause if
the other Party fails to cure its material breach of the
Agreement. To terminate under this section, the nonbreaching party
shall give notice to the breaching party of the breach, in such detail that
the
breaching party will be able to identify the nature of the
breach. Except with respect to a failure to make a payment required
under this Agreement, the breaching party will then have three months from
the
date of such notice to cure the breach to the nonbreaching party’s reasonable
satisfaction. If the breach is a failure to make a payment required
under this Agreement, the breaching party will have thirty (30) business
days from the date of receipt of such notice to make payment of the full amount
due. If the breaching party fails to cure the breach to the
nonbreaching party’s reasonable satisfaction within the applicable cure period,
the nonbreaching party may terminate the Agreement immediately upon further
notice to the breaching party. The failure of SETI to make any
Scheduled Payment, to pay for EPIR Products or EPIR Independent Products ordered
by SETI, or to make any other payment required under this Agreement, shall
be
deemed to be a material breach of this Agreement.
8
3.3. Termination
for Force Majeure. Upon the occurrence of any of the events
listed in Article 20, such that a period of nonperformance of the
non-terminating party for reasons of Force Majeure exceeds ninety
(90) calendar days, either party may immediately terminate this Agreement
upon written notice to the non-terminating party.
3.4. Effects
of Termination. Scheduled Payments which were due to be paid to
EPIR prior to the effective date of termination shall continue to be due to
EPIR, and SETI shall have no obligation to pay Scheduled Payments which would
have fallen due after the effective date of termination. Except in
the event of EPIR’s termination for SETI’s material breach, EPIR shall process
in the ordinary course of business all Firm Purchase Orders confirmed by EPIR
prior to receipt of the written notice of termination, and EPIR shall have
no
further obligation to supply EPIR Products or EPIR Independent Products to
SETI. Termination of this Agreement shall not excuse SETI from making
payment of any amount owed to EPIR, including payments for EPIR Products and
EPIR Independent Products shipped by EPIR prior to the effective date of
termination.
3.5. Survival. Upon
termination or expiration of this Agreement (other than termination pursuant
to
Section 2.4), all rights and obligations of the Parties which, by their nature,
must survive the expiration or termination of this Agreement to give effect
to
their intent shall so survive, including without limitation, the provisions
of:
Article
1, definitions;
Article
2, Sections 2.2-2.3, relating
to the Initial Agreement and the LOI;
Article
3, Section 3.4, effects of
termination;
Article
3, Section 3.5,
survival;
Article
5, Section 5.1.3, relating to
EPIR Independent Products;
Article
14, Sections 14.3 and 14.5,
disclaimers of warranties;
Article
15, limitation of
liability
Article
16, relating to
indemnification;
Article
18, relating to intellectual
property;
Article
19, relating to the
Confidential Information of either party; and
Article
21, miscellaneous.
ARTICLE
4. LEGAL
POSITION OF THE PARTIES
4.1. Public
Announcements. Upon execution of the Agreement by both Parties,
SETI will be authorized to make public announcements about the relationship
and
the activities of the Parties under this Agreement. Any and all
public announcements made by SETI will be reviewed and approved by EPIR prior
to
their release. The initial public announcement by SETI will include
the following statements:
“Sunovia
Energy Technologies, Inc. has formed an alliance with EPIR
Technologies, Inc. The Parties are working together to develop
enhanced photovoltaic (PV) solar cells, materials research for advanced
encapsulates, interconnects associated with PV solar cells, and cost effective
manufacturing of PV materials that can be seamlessly integrated into higher
efficiency renewable solar systems. Using novel technologies in the
field of fabrication of semiconductor epitaxial layers onto custom composite
substrates and deposition processes, the Parties aim to have the
state-of-the-art renewable energy products available for mass distribution
within 12-24 months.”
9
Upon
execution of the Agreement by both Parties, EPIR will be authorized to publicly
announce the relationship and the activities of the Parties under this
Agreement. Any and all public announcements made by EPIR will be
reviewed and approved by SETI prior to their release. The initial
public announcement by EPIR will include the following statements:
“EPIR
Technologies, Inc. has formed an alliance with Sunovia Energy
Technologies, Inc. to develop and distribute products using novel
technologies in the field of fabrication of semiconductor epitaxial layers
onto
custom composite substrates and deposition processes for enhanced photovoltaic
(PV) solar cells, materials research for advanced encapsulates and interconnects
associated with PV solar cells and cost effective manufacturing of PV solar
cells that can be seamlessly integrated into higher efficiency solar
systems. Using novel technologies in the field of fabrication of
semiconductor epitaxial layers onto custom composite substrates and deposition
processes, the Parties aim to have the state-of-the-art renewable energy
products available for mass distribution within 12-24 months.”
4.2. Independent
Contractors. In performing their duties under this Agreement, the
relationship between SETI and EPIR shall be that of independent contractors.
The
Parties to this Agreement shall not be considered partners, joint venturers,
agents or legal representatives of each other for any purpose, nor shall either
Party accept contractual or other legal commitments (for or on behalf of the
other Party) with regard to third parties.
4.3. No
Affirmative Obligation. Nothing in this Agreement shall be
construed as creating any obligation on the part of either Party to enter into
any business relationship with any party other than the Parties specifically
identified herein.
ARTICLE
5. OBLIGATIONS
OF EPIR
Subject
to the terms and conditions of this Agreement, EPIR will: (i) use commercially
reasonable efforts to develop EPIR Products using New Technologies that will
be
identified and defined by the TDB, using the procedure set forth in Exhibit
B
hereof; (ii) use commercially reasonable efforts to supply (A) EPIR Products
using New Technologies and (B) EPIR Independent Products in quantities that
are
consistent with SETI’s forecasted demand under this Agreement; (iii) support
SETI’s efforts in the marketing and promotion of the SETI Products; (iv) refer
any and all inquires for purchase of the EPIR Products or SETI Products received
from third parties to SETI; and (v) inform SETI of any inquiries received by
EPIR from third parties who or are interested in engaging EPIR to develop
photovoltaic solar cells and related technologies.
5.1. Development.
5.1.1. EPIR
will
use commercially reasonable efforts to develop EPIR Products using the New
Technologies that are identified and approved by the TDB under the terms and
conditions of this Agreement. The TDB must develop Product
Specifications for an EPIR Product prior to EPIR being obligated to supply
such
EPIR Product.
10
5.1.2.
Notwithstanding
anything to the contrary in this Agreement, EPIR shall not be required to
undertake any research or development work under this Agreement relating to
EPIR
Products or EPIR Independent Products that would not be fully funded by either
the Scheduled Payments set forth in Exhibit A-1, or the combination of Scheduled
Payments and any capital contribution, governmental or otherwise, that is
secured by either SETI or EPIR for the purpose of undertaking research or
development work related to the EPIR Products or EPIR Independent
Products.
5.1.3.
Notwithstanding
anything to the contrary in this Agreement, EPIR's research and development
of
EPIR Independent Products will be solely controlled by EPIR and not governed
by
the TDB or this Agreement.
5.2.
Marketing
Support. Upon execution of this Agreement, EPIR shall appoint a
marketing contact (“EPIR’s Marketing Contact”), who is named in Exhibit A-2
(“Company Contacts”) (which is attached hereto and forms an integral part of
this Agreement), to support the relationship of the Parties established in
this
Agreement.
5.2.1.
The
TDB
shall determine a fair and reasonable quantity of EPIR Product samples to be
provided by EPIR to SETI for sales and marketing purposes. The TDB
shall define the terms and conditions for the provision of such samples,
including the cost obligations of the parties in connection with the
samples. EPIR shall determine a fair and reasonable quantity of EPIR
Independent Product samples to be provided by EPIR to SETI for sales and
marketing purposes. EPIR shall define the terms and conditions for
the provision of such samples, including the cost obligations of the parties
in
connection with the samples.
5.2.2.
EPIR
shall provide SETI with the user and maintenance documentation for the EPIR
Products and EPIR Independent Product within thirty (30) days of any written
request by SETI to obtain such documentation.
5.2.3.
Through
the TDB, EPIR shall keep SETI informed of any modifications and/or upgrades
of
the EPIR Products which may be required after EPIR has provided either
documentation or a prototype to SETI, as per Section 5.2.1 and 5.2.2
above. EPIR shall keep SETI informed of any modifications and/or
upgrades of the EPIR Independent Products after EPIR has provided either
documentation or samples to SETI, as per Section 5.2.1 and 5.2.2
above.
5.2.4.
EPIR
will
invite SETI representatives to attend any events that showcase the EPIR Products
or EPIR Independent Products.
5.2.5.
EPIR
shall allow SETI, upon written request by SETI, to develop collateral materials
that include technical photographs and/or video footage of the EPIR
facility. EPIR shall have the sole right to approve or disapprove any
and all collateral materials, such approval not to be unreasonably
withheld. SETI hereby grants and agrees to grant EPIR a perpetual,
non-exclusive, irrevocable, royalty-free license to reproduce, distribute,
make
derivative works of, display and otherwise use any collateral materials
developed by SETI relating to the EPIR Independent Products, EPIR Products
or
New Technologies.
11
5.3. Technical
Support. Upon execution of this Agreement, EPIR shall appoint a
technical contact (“EPIR’s Technical Contact”) who is named in Exhibit A-2 to
support this Agreement.
5.3.1.
Upon
SETI’s reasonable request, EPIR shall provide technical assistance to SETI to
support the integration of the EPIR Products and EPIR Independent Products
into
SETI Products, packages, systems and solutions and the migration to the next
generations of SETI Products. EPIR shall provide technical assistance
to SETI at no additional cost for each EPIR Product developed.
5.3.2.
EPIR
shall, upon SETI’s reasonable request, provide SETI with training sessions that
may be required to familiarize SETI with the EPIR Products and EPIR Independent
Products.
ARTICLE
6. OBLIGATIONS
OF SETI
Subject
to the terms and conditions of this Agreement, SETI shall support EPIR's efforts
by: (i) providing the Scheduled Payments that are set forth within Exhibit
A-1
hereto; (ii) develop distribution channels for the SETI Products;
(iii) integrate, promote, market and sell the EPIR Products, EPIR
Independent Products and the SETI Products; and (iv) inform EPIR of any
inquiries received by SETI from third parties who or are interested in engaging
the Parties in connection with the development or use of photovoltaic solar
cells and related technologies.
6.1. Scheduled
Payments. SETI shall pay EPIR the Scheduled Payments set forth in
Exhibit A-1 within three (3) days of the dates set forth on Exhibit A-1
without deduction or setoff. All such payments are
non-refundable. Any payment due under this Section 6.1 not received
by the dates set forth in Exhibit A-1 shall bear interest at the lesser of
(a)
the maximum rate permitted by law, (b) Prime, as reported in the Wall Street
Journal as of the date of the nonpayment, plus 2%, or (3) 1.5% per month on
the
outstanding balance compounded monthly. Without limiting any other
remedy available to EPIR under this Agreement or otherwise, EPIR shall have
the
right to halt research and development work during any period in which SETI
has
any Scheduled Payments outstanding and past due.
If
the
Agreement is extended past the Initial Term in accordance with Article 3
(Term and Termination), SETI shall continue to make bi-annual Scheduled Payments
as set forth in Exhibit A-1. The amount of such payments shall be set
at the same level as the last Scheduled Payment listed in Exhibit A-1, unless
otherwise agreed to, in writing, by the Parties.
6.2. Marketing
And Technical Support. SETI shall appoint a marketing contact
(“SETI’s Marketing Contact”) and a technical contact (“SETI’s Technical
Contact”) to support the relationship established in this
Agreement.
12
6.2.1. SETI
shall use commercially reasonable efforts to effectively promote and market
the
EPIR Products, the EPIR Independent Products and the SETI
Products. SETI shall attain the annual sales goals developed by the
TDB for each EPIR Product and related SETI Product. SETI shall attain
the annual sales goals reasonably set by EPIR for each EPIR Independent Product
and related SETI Product.
6.2.2. Upon
EPIR’s reasonable request, SETI shall provide technical support to EPIR with
respect to the development of the EPIR Products. Said technical
support shall be limited to the dimensions, features and aesthetic conditions
that may be required to sell the SETI Products and the EPIR
Products.
6.2.3. Through
the TDB, SETI shall keep EPIR properly informed of any modifications and/or
upgrades to EPIR Products or EPIR Independent Products that may be necessary
to
satisfy a large customer’s purchase requirements.
6.2.4. SETI
shall train its sales force and distribution channels on (a) the EPIR Products
using training materials that are mutually agreeable to the Parties and (b)
the
EPIR Independent Products using training materials supplied, or otherwise agreed
to, by EPIR. All costs and expenses arising from SETI’s employees’
participation in such trainings shall be paid by SETI.
6.2.5. SETI
shall conduct, and shall cause its employees to conduct, its marketing
obligations in a manner that will reflect favorably on the EPIR Products and
EPIR Independent Products, and on the goodwill and reputation of SETI and
EPIR. SETI shall take all action necessary to prevent and avoid
deceptive, misleading or unethical practices.
6.2.6. SETI
shall provide any required maintenance of an EPIR Product or EPIR Independent
Product after the expiration of the EPIR warranty set forth in Exhibit
G.
6.2.7. SETI
shall be responsible for the integration of the EPIR Products and EPIR
Independent Products into SETI Products.
6.3. Promotion. SETI
shall promote the EPIR Products, EPIR Independent Products and the SETI
Products. Following are channels that SETI shall utilize to promote
the EPIR Products, the EPIR Independent Products and the SETI
Products:
Newspapers
(articles & paid
advertisements)
Magazines
(trade &
other)
Video
News Releases
Trade
associations
Trade
shows and
exhibitions
SETI’s
Web site
SETI’s
show rooms
SETI
press releases
Other
mutually approved
media
13
Nothing
in this Agreement shall in any way limit EPIR’s right, in its sole discretion,
to also market and promote the New Technologies and EPIR Products, or the EPIR
Independent Products, subject to the exclusivity grant in Section 7.1
below.
ARTICLE
7. PURCHASE
AND SUPPLY OF PRODUCT
7.1. Grant
Of Exclusivity. Subject to the terms and conditions of this
Agreement (specifically Section 7.2), EPIR agrees to exclusively sell to SETI
the EPIR Products and the EPIR Independent Products at the product’s cost, as
defined by Generally Accepted Accounting Principles (“GAAP”). EPIR
shall continue to exclusively provide the EPIR Products and EPIR Independent
Products only to SETI for as long as SETI achieves the annual sales goals set
forth hereunder.
7.1.1.
The
Parties understand and agree that the net profits, as defined by GAAP, resulting
from the sale of any and all EPIR Products, EPIR Independent Products and
related SETI Products, directly or indirectly, to any and all third parties
shall be split equally between EPIR and SETI.
7.1.1.1. The
Parties agree to develop a mutually agreeable process, such as a lockbox or
a
sweep account, to manage the allocation of funds that result from the sale
by
either party of EPIR Products, EPIR Independent Products and/or related SETI
Products.
7.1.2.
If
SETI
fails to achieve any established annual sales goal, as set forth hereunder,
for
a specific EPIR Product, EPIR Independent Product or related SETI Product,
then
SETI shall either: (1) retain exclusivity to the product by paying to EPIR
the
profits that EPIR would have received had the annual sales goal been achieved;
or (2) release EPIR from its obligation to exclusively provide to SETI the
specific EPIR Product, EPIR Independent Product or related SETI Product for
which there was a shortfall.
7.2. EPIR’s
Right to Sale. EPIR shall have the right to sell the EPIR
Products, the EPIR Independent Products and the related SETI
Products. Any and all funds that result from the sale of the products
shall be allocated through a lockbox or sweep account process as specified
in
Section 7.1.1.1 above, and the parties shall equally split the net profits,
as
profit is defined by GAAP.
7.3. Minimum
Profit Margin. The Parties agree that the EPIR Products, the EPIR
Independent Products and the related SETI Products will be sold with a minimum
four (4) percent profit margin.
7.4. Obligation
To Supply EPIR Products. Subject to the terms and
conditions of this Agreement, during the Term SETI agrees to purchase its
photovoltaic solar cells exclusively from EPIR, unless the TDB determines that
photovoltaic solar cells are not compatible with a particular SETI product
offering.
14
7.5. Obligation
to Supply EPIR Products. Subject to the terms and conditions of
this Agreement, EPIR shall supply SETI with EPIR Products and EPIR Independent
Products ordered by it in accordance with this Agreement; provided,
however, that EPIR’s obligation to supply EPIR Products and EPIR
Independent Products to SETI shall take effect only after (i) the Parties
have agreed upon and secured funding for adequate manufacturing facilities,
and
(ii) the Parties establish SETI’s Minimum Purchase Commitment therefore, as
described in Exhibit C. Once these conditions have been met, EPIR
shall use commercially reasonable efforts to deliver the quantities of EPIR
Products set forth in SETI’s Forecast, subject to the terms and conditions of
this Agreement.
7.6. Obligation
to Supply EPIR Independent Products. Subject to the terms and
conditions of this Agreement, EPIR shall supply SETI with EPIR Independent
Products ordered by it in accordance with this Agreement; provided,
however, that EPIR’s obligation to supply EPIR Independent Products to
SETI shall take effect only after the Parties establish SETI’s Minimum Purchase
Commitment therefore, as described in Exhibit C. Once this condition
has been met, EPIR shall use commercially reasonable efforts to deliver the
quantities of EPIR Independent Products set forth in SETI’s Forecast, subject to
the terms and conditions of this Agreement.
7.7. Inspection
And Certification. SETI shall be responsible for the inspection
and certification of any and all EPIR Products and EPIR Independent Products
received from EPIR.
7.7.1.
SETI
shall inspect each shipment of EPIR Products or EPIR Independent Products from
EPIR in order to confirm that the quantities and types of products received
by
SETI correspond exactly with the quantities and types of products that were
ordered.
7.7.2.
SETI
shall certify each shipment of EPIR Products or EPIR Independent Products from
EPIR in order to confirm that the products are free from defects in material
and
workmanship upon delivery.
.
7.7.3.
SETI
shall notify EPIR, in writing, within ten (10) business days from the date
of
receipt of EPIR Products or EPIR Independent Products by SETI if there is any
discrepancy between the type and quantities of products ordered versus the
types
and quantities of products delivered.
7.7.4.
SETI
shall notify EPIR, in writing, within thirty (30) business days from the
date of receipt of EPIR Products or EPIR Independent Products by SETI if there
is a material defect in material and/or workmanship of any product delivered
such that the product does not comply with the EPIR warranty set forth in
Exhibit G.
7.8. Packaging. EPIR
shall ship EPIR Products and EPIR Independent Products to SETI in packaging
that
will adequately protect the products from damage that may be caused during
normal transit.
15
ARTICLE
8. FORECASTS,
ORDERS, AND CAPACITY
8.1. Forecasts,
Order Limits And Capacity.
8.1.1.
No
later
than the first day of each calendar month during the Term, SETI shall provide
a
good faith written rolling forecast by month to EPIR
(“Forecast”). Said Forecast shall outline the quantities and types of
EPIR Products and EPIR Independent Products that SETI expects to purchase in
each month during the subsequent 12-month period. The quantities of
products for the first six calendar months of each Forecast will be
firm. The quantities of products for the remaining six months in each
Forecast will be non-binding good faith estimates for planning purposes
only.
8.1.2.
In
the
event that SETI recognizes that the non-binding portion of a Forecast that
has
been submitted is substantially inaccurate, SETI shall submit a revised Forecast
as quickly as possible. EPIR shall not be obligated to supply EPIR
Products or EPIR Independent Products in excess of the quantity contained in
the
then-current binding Forecast.
8.1.3.
Subject
to the terms and conditions of this Agreement, EPIR shall use commercially
reasonable efforts to fulfill a Firm Purchase Order within ten (10) days of
the delivery date set forth in the Firm Purchase Order.
8.1.4.
Notwithstanding
anything to the contrary in this Agreement, EPIR agrees to use commercially
reasonable efforts to increase the production of EPIR Products or EPIR
Independent Products if it becomes apparent based on SETI’s
Forecasts that SETI’s demand for the EPIR Products or EPIR
Independent Products will exceed EPIR’s capacity to produce the EPIR Products or
EPIR Independent Products. The parties understand and agree that
EPIR’s efforts to increase such production may be constrained by the Parties’
ability to attract additional sources of funding apart from the Scheduled
Payments listed in Exhibit A-1.
8.1.5.
SETI
shall notify EPIR in writing at least ninety (90) days in advance of any
significant increases in demand that SETI anticipates and shall amend its
Forecast to reflect such anticipated change. SETI expects that demand
for the products shall increase steadily over the Term as certain regulatory
approvals to sell the products are obtained, and as the distribution channels
evolve and mature.
8.2. Purchase
Orders.
8.2.1.
SETI
shall order EPIR Products or EPIR Independent Products by submitting purchase
orders to EPIR specifying the quantity and type of products ordered and the
requested delivery date, which date must be at least sixty (60) days after
the date of the Purchase Order (each, a “Purchase Order”). SETI must
submit Purchase Orders for delivery in each calendar month for at least that
number of EPIR Products and EPIR Independent Products that are forecasted for
delivery in the binding portion of the Forecast for such month. The
Purchase Orders shall be signed or otherwise authorized by an authorized
representative of SETI. Within ten (10) business days after the
receipt of a Purchase Order, EPIR shall provide a confirmation of receipt of
such Purchase Order setting forth the delivery date that EPIR will meet, which
date may not be more than thirty (30) days after the requested delivery
date set forth in SETI’s Purchase Order. EPIR may accept a portion of
a Purchase Order to the extent the quantity of EPIR Products or EPIR Independent
Products ordered exceeds the amount Forecast for delivery in the applicable
month. Upon SETI’s receipt of the confirmation, such Purchase Order
shall become a “Firm Purchase Order.” No Purchase Order shall be
binding on EPIR until it becomes a Firm Purchase Order.
16
8.2.2.
SETI
may
modify or cancel a Firm Purchase Order only after obtaining EPIR’s written
consent to such cancellation. In the event that SETI modifies or
cancels a Firm Purchase Order without EPIR’s written consent, EPIR shall be
entitled to charge SETI the following amounts for ordered and canceled EPIR
Products or EPIR Independent Products: (i) the established price of the finished
products (which shall be delivered to SETI), and (ii) a fee equal to that
portion of EPIR’s cost for manufacturing the partially manufactured products
(which shall be delivered to SETI if SETI requests) which had been actually
sustained by EPIR as of the date EPIR is notified of the modification or
cancellation plus 10% (together, the “Cancellation Fee”). To the
extent of any conflict between statements made in the Purchase Orders submitted
by SETI and this Agreement, this Agreement shall control.
ARTICLE
9. PRICE
9.1. Purchase
Price of The Products.
9.1.1.
The
Parties implicitly understand and agree that the EPIR Products, the EPIR
Independent Products and the related SETI Products must be sold to independent
third parties at cost plus a minimum of four (4) percent profit margin, as
both
cost and profit are defined by GAAP.
9.1.2.
The
price
to be paid by SETI for any and all EPIR Products and EPIR Independent Products
and related SETI Products shall be cost, as defined by GAAP.
9.1.3.
The
price
to be paid by EPIR for any and all EPIR Products, EPIR Independent Products and
related SETI Products shall be cost, as defined by GAAP.
9.1.4.
Within
sixty (60) days from the date that an EPIR Product or EPIR Independent Product
is available to sell, EPIR shall provide SETI with a Product Price Listing
in a
form set forth in Exhibit E hereto. The Product Price Listing will
include pertinent product information including, but not limited to the
following: part number, dimensions, and basic performance data. EPIR
shall provide an updated Product Price Listing to SETI within thirty (30) days
from the date that any new pricing becomes available.
17
9.1.5.
At
the
request of the other party, either party is required to provide any and all
data
necessary to audit the pricing of the EPIR Products, the EPIR Independent
Products and the related SETI Products.
ARTICLE
10. SHIPMENT
AND INVOICING
10.1.
Delivery
Terms And Partial Shipments. EPIR shall ship EPIR Products and
EPIR Independent Products to SETI via UPS Ground at SETI’s
expense. SETI shall provide EPIR with its UPS account information
whereby all shipments from EPIR to SETI shall be billed. The products
shall be delivered to SETI’s Sarasota, Florida location or to the location
designated by SETI in the corresponding Purchase Order. EPIR Products
and EPIR Independent Products shall remain the responsibility of EPIR until
they
are picked up by UPS, and title to and risk of loss for the EPIR Products and
EPIR Independent Products shall pass to SETI upon EPIR’s delivery to
UPS. EPIR shall ensure that the proper amount of insurance covering
damage or loss to the products during shipping is assessed to each shipment,
and
insurance charges shall be paid by SETI.
If,
in
the Purchase Order confirmation, EPIR indicates expected dates for shipment
that
would result in partial shipments, SETI may request, within five (5) days of
SETI’s receipt of EPIR’s notice of partial shipments that EPIR hold delivery
until shipment is complete. If no such request is received, EPIR may
ship in accordance with the Purchase Order confirmation and SETI will be deemed
to have agreed to accept the partial shipments.
10.2. Exporter
Of Record. SETI shall be the exporter of record for any EPIR
Product or EPIR Independent Product shipped out of the United States, as SETI
remains the owner of such EPIR Product or EPIR Independent Products. SETI
warrants that all shipments of any EPIR Product or EPIR Independent Products
exported from the United States will be made in compliance with all applicable
United States export laws and regulations and all applicable import laws and
regulations into the country of deportation.
10.3. Export
Costs And Documents. SETI shall be responsible for any costs
applicable to the exportation of EPIR Product or EPIR Independent Product from
the United States. SETI shall select and pay the freight forwarder
who shall solely be SETI’s agent. SETI and its freight forwarder shall be
responsible for preparing and filing documents such as the Shipper’s Export
Declaration and any other applications required for the export. EPIR shall
cooperate with SETI by providing reasonable assistance in preparing and filing
any necessary documents to support SETI’s import and export
applications.
10.4. Foreign
Corrupt Practices Act. SETI acknowledges it is not the agent of
EPIR and represents and warrants that it has not, and covenants that it will
not, pay anything of value to any government employee in connection with the
resale, if any, of the EPIR Products or the EPIR Independent Products, or the
sale of the SETI Products.
18
10.5. EPIR
Product and Services Payment Terms. EPIR shall invoice SETI for
each EPIR Product or EPIR Independent Product that is purchased and delivered
under this Agreement. The stated due date of each such invoice shall
be within thirty (30) days following the date of SETI’s receipt of the invoiced
product. EPIR shall also invoice SETI for any additional amounts
owed, including but not limited to, amounts owed for private labeling,
customization of product, facility expenses, labor expenses, and any other
EPIR
service expenses (if any) on a monthly basis, in arrears, which invoices shall
set forth in reasonably specific detail the description of the costs therefor.
SETI shall pay all amounts invoiced on or before the stated due date of the
applicable invoice, provided that on the date of such invoice EPIR shall have
(a) sent by facsimile such invoice to SETI to such facsimile number as most
recently requested in writing by SETI for such purpose, and (b) deposited
the original of such invoice in the United States mail, first class postage
prepaid and addressed to SETI at such address as most recently requested in
writing by SETI for such purpose. Payments shall be made in U.S.
dollars by check delivered to EPIR, or by wire transfer. Each invoice shall
be
payable by SETI in accordance with the terms noted above.
Any
payment due under this Section 10.5 not received within the times noted above
shall bear interest at the lesser of (a) the maximum rate permitted by law,
or (b) 1.5% per month on the outstanding balance compounded
monthly.
10.6. Default
In Payment Obligations. In addition to all other remedies
available to EPIR in the event of a SETI default, if SETI fails to make payments
as required of amounts due under this Agreement (other than amounts contested
by
SETI in good faith), EPIR may suspend product shipments to SETI until the
amount due (other than amounts contested by SETI in good faith) is paid in
full,
revoke the foregoing terms of payment, place the SETI account on a letter of
credit basis, and/or require prepayment for any and all future shipments of
product until the balance of any and all unpaid invoices (other than amounts
contested by SETI in good faith) is paid in full. Failure by SETI to
make payment for amounts due shall be cause for termination of the Agreement
pursuant to Section 3.2, and repeated failures to make payment for invoiced
amounts when due shall be a material breach of this Agreement by
SETI.
ARTICLE
11. ACCEPTANCE
OF EPIR PRODUCT AND EPIR INDEPENDENT PRODUCT
11.1. EPIR
Product and EPIR Independent Product Conformity. Within
thirty (30) days following the date of SETI’s receipt of a EPIR Product or EPIR
Independent Product, SETI shall have the right to determine whether the product
conforms to the applicable Product Specifications. EPIR and SETI
shall comply with the quality control procedures set forth in Exhibit F
hereto. Notwithstanding the foregoing, if SETI has conducted a
mutually agreed upon standard testing procedure on three (3) separate units
of
the EPIR Product or EPIR Independent Product in question, and if all three
of
the tested units of the product fail to meet the applicable Product
Specifications, then SETI may in good faith request in writing, within the
time
period specified in Section 7.3.4, an additional time to perform additional
testing. Upon such request, such period shall be extended for
fourteen (14) days so that SETI may perform such additional
testing.
19
11.1.1.
If
SETI
fails to notify EPIR within thirty days, as extended by the fourteen-day period
for additional testing (if so indicated) by Section 11.1 above, that any EPIR
Independent Product or EPIR Product does not conform to its Product
Specifications, then SETI shall be deemed to have accepted such product and
waived its right to revoke acceptance.
11.1.2.
If
SETI
believes any EPIR Product or EPIR Independent Product does not conform to its
Product Specifications, it shall give written notice to EPIR specifying the
manner in which such product fails to meet the Product
Specifications. If EPIR agrees with SETI’s assessment, EPIR
shall repair, replace or refund the defective product according to it
obligations under the EPIR product warranty.
11.1.3.
If
the
Parties dispute whether any EPIR Product or EPIR Independent Product is
conforming or non-conforming, the disputed product will be submitted to a
mutually acceptable laboratory or consultant for resolution, whose determination
of conformity or non-conformity, and the cause thereof of non-conformity, shall
be binding upon the Parties. The non-prevailing party shall bear the costs
of
such laboratory or consultant.
11.2. Remedies
For Non Conforming EPIR Product or EPIR Independent
Product.
11.2.1.
In
the
event EPIR agrees or a mutually acceptable laboratory or consultant selected
pursuant to Section 11.1.3 finds that any EPIR Product or EPIR Independent
Product is non-conforming or the laboratory determines that the shipment of
product is non-conforming, EPIR shall repair, replace or refund such
non-conforming product according to its obligations under the EPIR product
warranty.
11.2.2.
In
the
event the laboratory determines that the EPIR Product or EPIR Independent
Product is conforming, then SETI shall immediately remit full payment for any
and all unpaid balances for such product to EPIR.
11.2.3.
If
EPIR
agrees or a mutually acceptable laboratory or consultant selected pursuant
to
Section 11.1.3 finds the EPIR Independent Product or EPIR Product is
non-conforming as a result of being damaged during shipping, then EPIR, upon
SETI’s reasonable request, shall cooperate with SETI in its claim to receive
compensation for the damaged non-conforming product from the shipping
company. SETI bears the risk of loss arising from events occurring
after EPIR has delivered the EPIR Products or EPIR Independent Products to
the
common carrier at EPIR’s plant.
ARTICLE
12. PRODUCTION
OF EPIR PRODUCTS AND EPIR INDEPENDENT PRODUCTS
12.1. Production. EPIR
shall produce, or shall cause the production of, EPIR Products and EPIR
Independent Products in accordance with the applicable Product
Specifications. Subject to compliance with reasonable rules and
regulations of EPIR relating to confidentiality, safety and security, SETI
shall, upon ten (10) days’ advance written notice, have the right to tour the
facilities directly affecting the production of the EPIR Products or EPIR
Independent Products in accordance with the production facility’s standard
visitation policy. All information provided to SETI during such
inspection shall be EPIR’s Confidential Information for the purposes of this
Agreement.
20
12.2. Testing. In
accordance with the applicable Product Specifications and quality standards,
and
in accordance with the quality assurance and control procedures set forth in
Exhibit F hereto, EPIR shall test the EPIR Products and EPIR Independent
Products on a regular basis.
12.3. Permits
And Licenses.
12.3.1.
SETI
shall have sole responsibility, at its expense, for obtaining all permits and
licenses necessary or required for the sale, resale, marketing and
commercialization of any SETI Products.
12.3.2.
EPIR
shall have sole responsibility to obtain and maintain all permits and licenses
required for it to carry out its research, development, quality control and
production obligations hereunder.
12.3.3.
Each
party, at the other party’s request, shall provide any information that may be
required in the preparation and filing of any necessary documents to support
the
requesting party’s applications for permits and licenses.
12.4. Regulatory
Requirements. Each Party promptly shall notify the other of new
regulatory requirements of which it becomes aware which are relevant to the
production of a EPIR Product or EPIR Independent Product under this Agreement
and which are required by any applicable regulatory authority or other
applicable laws or governmental regulations, and shall confer with each other
with respect to the best means to comply with such requirements. Notwithstanding
anything to the contrary in this Agreement, EPIR shall be responsible for its
compliance with all regulatory requirements of the United States and any foreign
countries that are applicable to EPIR’s facilities and activities in
production.
12.5. Changes
In Manufacturing.
12.5.1.
Changes
to EPIR Product Manufacturing. EPIR agrees to inform SETI in writing
within thirty (30) days of any development that directly affects: (a) the
production of a EPIR Product or EPIR Independent Product, (b) the Product
Specifications, or (c) the standard operating procedures used by EPIR in
manufacturing the EPIR Products or EPIR Independent Products. Through
the TDB, SETI and EPIR will review such development or changes to the extent
they relate to EPIR Products in accordance with the quality control procedures
set forth in Exhibit F. Any necessary changes to the Product
Specifications or standard operating procedures for EPIR Products will be issued
by the TDB. Any necessary changes to the Product Specifications or
standard operating procedures for EPIR Independent Products will be issued
by
EPIR.
21
12.5.2.
Product-Specific
Changes. If facility, equipment, process or system changes are required by
EPIR, and such changes apply primarily to the production and supply of a EPIR
Product then EPIR shall allow SETI to review such requirements and changes
at
least ninety (90) days in advance so that SETI can make any necessary
adjustments to its manufacturing processes that include the specific EPIR
Product in one or more SETI Products.
ARTICLE
13. TRADEMARKS
13.1. All
trademarks owned by EPIR (“EPIR Trademarks”) are the sole and exclusive property
of EPIR and may not be used by SETI without the prior written consent of
EPIR.
13.2. All
trademarks owned by SETI (“SETI Trademarks”) are the sole and exclusive property
of SETI and may not be used by EPIR without the prior written consent of
SETI.
ARTICLE
14. REPRESENTATIONS
AND WARRANTIES
14.1. Mutual
Representations. Each Party hereby represents and warrants to the
other Party that (a) the person executing this Agreement is authorized to
execute this Agreement; (b) this Agreement is legal and valid, and the
obligations binding upon such Party are enforceable by their terms; and (c)
the
execution, delivery and performance of this Agreement does not violate any
law
or regulation of any court, governmental body or administrative or other agency
having jurisdiction over it.
14.2. EPIR
Warranties. EPIR represents and warrants that the developed EPIR
Products and the EPIR Independent Products shall conform to the applicable
Product Specifications, as stated in Exhibit G. EPIR warrants that
performances of its obligation under this Agreement shall not violate any other
contract or agreement to which EPIR is a party. EPIR represents it
shall not knowingly utilize information or technology in the development of
EPIR
Products under this Agreement that EPIR knows may infringe upon the legal
intellectual property rights of others, including patent rights. EPIR
represents and warrants that it has obtained (or will obtain prior to producing
any EPIR Product or EPIR Independent Product), and will remain in compliance
with during the Term, all permits, licenses and other authorizations (the
“Permits”) which are required under federal, state and local laws, rules and
regulations applicable to the production and wholesale of the EPIR Products
or
EPIR Independent Products. EPIR makes no representation or warranty
with respect to the sale, marketing, distribution or use of the EPIR Products,
EPIR Independent Products, or the SETI Products or to printed materials
specified by SETI or its consignee. The terms and conditions of the
EPIR warranty for the EPIR Products and EPIR Independent Products purchased
by
SETI hereunder are set forth within Exhibit G attached hereto and made a part
of
this Agreement by this reference.
14.3. Disclaimer
Of Warranties. Except for those representations and warranties
set forth in Sections 14.1, 14.2 and Exhibit G of this Agreement, EPIR makes
no
warranties, written, oral, express or implied, with respect to the New
Technologies, EPIR Products, EPIR’s research and development obligations under
this Agreement, or the EPIR Independent Products, including its capability
to
develop such New Technologies, EPIR Products or EPIR Independent Products.
ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT, ARE DISCLAIMED BY EPIR. NO WARRANTIES OF EPIR MAY BE CHANGED
UNILATERALLY BY ANY REPRESENTATIVES OF EPIR. SETI accepts EPIR Products and
EPIR
Independent Products subject to the terms hereof.
22
14.4. SETI
Warranties. SETI warrants that it has the right to give EPIR any
information provided by SETI hereunder, and that EPIR has the right to use
such
information for the production of EPIR Products and EPIR Independent
Products. SETI warrants that performances of its obligation under
this Agreement shall not violate any other contract or agreement to which SETI
is a party. SETI further warrants that it has obtained (or will
obtain prior to producing SETI Products), and will remain in compliance with
during the Term, all permits, licenses and other authorizations (the “Permits”)
which are required under federal, state and local laws, rules and regulations
applicable to the marketing, distribution and sale of the EPIR Products, the
EPIR Independent Products and the SETI Products.
14.5. Disclaimer
Of Warranties. Except for those warranties set forth in Section
14.1 and 14.4 of this Agreement, SETI makes no warranties, written, oral,
express or implied, with respect to the SETI Products or the sale of the EPIR
Products or EPIR Independent Products. ALL OTHER WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE
DISCLAIMED BY SETI. NO WARRANTIES OF SETI MAY BE UNILATERALLY CHANGED BY ANY
REPRESENTATIVES OF SETI.
ARTICLE
15. LIMITATION
OF LIABILITY, WAIVER OF SUBROGATION
15.1. Limitation
Of Liability. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE
TO THE OTHER FOR LOSS OF USE OR PROFITS OR OTHER COLLATERAL, SPECIAL,
CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO
THE
COST OF A RECALL OR LOST PROFITS, WHETHER SUCH CLAIMS ARE FOUNDED IN TORT,
CONTRACT, STRICT LIABILITY OR OTHERWISE. The foregoing limitation of
liability shall not apply to limit a Party’s liabilities resulting from its
breach of the nondisclosure and publicity provisions of Article 19 or the
intellectual property provisions of Article 18.
15.2. Waiver
Of Subrogation. All EPIR supplied EPIR Products and EPIR
Independent Products, and equipment used by EPIR in the production of EPIR
Products and EPIR Independent Products, (collectively, “EPIR Property”), shall
at all times remain the property of EPIR and EPIR assumes the risk of loss
for
the EPIR Property, until delivery of EPIR Products or EPIR Independent Products
to a common carrier as specified under Section 10.1. EPIR hereby waives any
and all rights of recovery against SETI and its affiliates, and against any
of
their respective directors, officers, employees, agents or representatives,
for
any loss or damage to EPIR Property to the extent the loss or damage is covered
by the insurance described in this Agreement.
23
ARTICLE
16. INDEMNIFICATION
16.1. SETI
Indemnification. SETI shall indemnify, defend and hold harmless
EPIR and its affiliates and any of their respective directors, managers,
members, officers, employees, authorized subcontractors and agents (collectively
the “EPIR Parties”) from and against any and all liabilities, obligations,
penalties, judgments, disbursements of any kind and nature, losses, damages,
costs and expenses (including, without limitation, reasonable attorney’s fees
and costs) incurred as a result of any claims, demands, actions or other
proceedings by unaffiliated third parties against an EPIR Party (collectively
“Claims”), resulting from (a) SETI’s possession, sale, offer for sale,
importation, use, storage, promotion, labeling, marketing or distribution of
a
EPIR Independent Product, EPIR Product or SETI Product, (b) SETI’s breach
of its representations or obligations under this Agreement, (c) the
execution, delivery and performance of this Agreement by SETI conflicting with
any other agreement of SETI, (d) any claim that the creation, manufacture,
use, sale, offer for sale, reproduction, display, importation, marketing or
distribution of EPIR Products or EPIR Independent Products by EPIR in accordance
with this Agreement, or by SETI, violates the patent, trademark, copyright
or
other proprietary rights of any third party, (e) a third party allegation of
product liability or personal injury arising from or relating to a failure
of
the SETI Products, or (f) the execution, delivery and performance of this
Agreement by SETI conflicting with any other agreement of SETI, except to the
extent any of the foregoing (a) or (d) is caused by the gross
negligence or willful misconduct of the EPIR Parties or by the breach by EPIR
of
its representations or obligations under this Agreement.
16.2. EPIR
Indemnification. EPIR shall indemnify, defend and hold harmless
SETI and its affiliates and any of their respective directors, officers,
employees, and agents from and against any and all Claims resulting from (a)
the
EPIR Parties’ gross negligence or willful misconduct relative to the design,
manufacture or storage by EPIR of a EPIR Product or EPIR Independent Product,
(b) any and all Claims resulting from EPIR’s breach of its representations or
obligations under this Agreement, or (c) the execution, delivery and performance
of this Agreement by EPIR conflicting with any other agreement of
EPIR.
16.3. Indemnitee
Obligations. A party (the “Indemnitee”) which intends to claim
indemnification under this Article 16 shall promptly notify the other party
(the
“Indemnitor”) in writing of any claim, demand, action, or other proceeding in
respect of which the Indemnitee intends to claim such indemnification; provided,
however, that failure to provide such notice within a reasonable period of
time
shall not relieve the Indemnitor of any of its obligations hereunder except
to
the extent the Indemnitor is prejudiced by such failure. The Indemnitee shall
permit, and shall cause its affiliates, and their respective directors,
officers, employees, subcontractors and agents to permit, the Indemnitor, at
its
discretion, to settle any such action, claim or other matter, and the Indemnitee
agrees to the complete control of such defense or settlement by the Indemnitor.
Notwithstanding the foregoing, the Indemnitor shall not enter into any
settlement that would adversely affect the Indemnitee’s rights hereunder, or
impose any obligations on the Indemnitee in addition to those set forth herein,
in order for it to exercise such rights, without Indemnitee’s prior written
consent, which shall not be unreasonably withheld or delayed. No such action,
claim or other matter shall be settled without the prior written consent of
the
Indemnitor, which shall not be unreasonably withheld or delayed. The Indemnitee,
its affiliates, and their respective directors, officers, employees,
subcontractors and agents shall reasonably cooperate with the Indemnitor and
its
legal representatives in the investigation and defense of any claim, demand,
action, or other proceeding covered by the indemnification obligations of this
Article 16. The Indemnitee shall have the right, but not the obligation, to
be
represented in such defense by counsel of its own selection and at its own
expense.
24
ARTICLE
17. INSURANCE
17.1. SETI
Insurance. SETI shall procure and maintain, during the Term and
for a period one (1) year beyond the end of the Term, Commercial General
Liability Insurance, including without limitation, product liability and
contractual liability coverage (the “SETI Insurance”). The SETI Insurance shall
cover amounts not less than one million dollars ($1,000,000) combined single
limit and shall be with a reputable insurance carrier.
17.2. EPIR
Insurance. EPIR shall procure and maintain, during the
Term and for a period of one (1) year beyond the end of the Term,
Commercial General Liability Insurance, including without limitation, product
liability and contractual liability coverage (the “EPIR Insurance”). The EPIR
Insurance shall cover amounts not less than one million dollars ($1,000,000)
combined single limit and shall be with a reputable insurance
carrier.
ARTICLE
18. INTELLECTUAL
PROPERTY
18.1. Definition
Of Intellectual Property. For purposes of this Agreement,
“Intellectual Property” shall mean any invention, innovation, improvement,
development, discovery, computer program, device, trade secret, method,
know-how, process, technique or the like, whether or not written or otherwise
fixed in any form or medium, regardless of the media on which contained and
whether or not patentable or copyrightable, and all patents, trademarks,
copyrights and other intellectual property rights related thereto.
18.2. Existing
Intellectual Property. Except as expressly provided in this
Agreement or as the Parties may otherwise expressly agree in writing, each
party
shall continue to own its Intellectual Property existing as of the Effective
Date or developed or acquired outside the scope of this Agreement (each Party’s
“Separate Intellectual Property”), without conferring any interests therein on
the other Party. Without limiting the generality of the preceding
sentence, EPIR and SETI shall retain all right, title and interest arising
under
the United States Patent Act, the United States Trademark Act, the United States
Copyright Act and all other applicable United States and foreign laws, rules
and
regulations relating to the Separate Intellectual Property. Neither
Party nor any third party shall acquire any right, title or interest in the
other Party’s Separate Intellectual Property by virtue of this Agreement or
otherwise, except to the extent expressly provided
herein. Notwithstanding anything to the contrary in this Agreement,
all Intellectual Property relating to EPIR Independent Products shall be solely
owned by EPIR, shall not be Joint Intellectual Property, and shall not subject
to Sections 18.3 through 18.6 below.
25
18.3. Joint
Intellectual Property Developed During The Term. Except as the
Parties may otherwise agree in writing and subject to the last sentence of
Section 18.2, all patents, patent applications, copyrights (whether registered
or unregistered), and trademarks (whether registered or unregistered) that
are
conceived, created or reduced to practice by either Party (or by the Parties
together) during the Term and in the course of performing the Parties’
obligations under this Agreement (the “Joint Intellectual Property”) shall be
co-owned equally and jointly (50%/50%) by the Parties hereto and, except as
expressly limited in this Article 18, each party shall have full rights to
freely exploit, transfer, license or encumber its rights in all Joint
Intellectual Property. For the avoidance of doubt, “Joint
Intellectual Property” does not include any unpatented know-how or
information.
18.4. Prosecution
of Joint Patent Rights. All patent applications and patents
included in the Joint Intellectual Property shall be defined as “Joint Patent
Rights”. SETI shall be responsible for the costs of the mutual patent
filings with respect to all Joint Patent Rights. The decision to file
for a patent application that would be a Joint Patent Right shall be agreed
upon
by the TDB, and the TDB shall select a mutually acceptable patent counsel to
file and prosecute such patent applications in the name of both
Parties. The patent counsel shall be deemed to jointly represent EPIR
and SETI and shall take direction from the TDB. If SETI fails to pay
the fees and expenses of the selected patent counsel, the parties agree that
the
patent counsel may withdraw from representation of both parties in matters
arising under this Agreement and SETI shall assign to EPIR its entire right,
title and interest in and to the Joint Patent Rights. If SETI desires
to abandon a Joint Patent Right, then, at least sixty (60) days prior to such
Joint Patent Right becoming abandoned, SETI will assign its entire right, title
and interest in such Joint Patent Right to EPIR and EPIR may, at EPIR’s sole
discretion and expense, file or continue prosecution or maintenance of such
Joint Patent Right. In either such event, upon request from EPIR,
SETI will execute such documents and perform such acts, at EPIR’s expense, as
may be reasonably necessary to effect such assignment and permit EPIR to file,
prosecute or maintain such Joint Patent Right.
18.5. Licenses
And Transfers Of Joint Intellectual Property.
18.5.1. During
the Term, neither Party shall grant any license to any third party under the
Joint Intellectual Property without the prior written consent of the other
Party, except that EPIR may grant licenses under the Joint Intellectual Property
to a contract manufacturer that manufactures on EPIR’s behalf.
26
18.5.2. After
the
Term, neither Party shall grant any license under any Joint Intellectual
Property without the prior written consent of the other Party, except that
the
Parties may grant licenses under the Joint Intellectual Property to a contract
manufacturer that is manufacturing on the Party’s behalf.
18.5.3. Both
during and after the Term, neither Party shall assign its joint interest in
any
Joint Intellectual Property to any third party without providing the other
Party
with written notice (the “Assignment Notice”) at least thirty (30) days prior to
the proposed date of such proposed assignment, which notice must identify the
proposed assignee and the purchase price such assignee proposes to pay for
such
Joint Intellectual Property (the “Proposed Price”). Upon receipt of
the Assignment Notice, the nonassigning Party shall have the option to purchase
the assigning Party’s interest in the Joint Intellectual Property for the
Proposed Price, which option the non-assigning party may exercise, within sixty
(60) days after receiving the Assignment Notice, by providing the assigning
Party with written notice of its desire to exercise the option and paying the
Proposed Price. If the nonassigning Party does not exercise this
option within such period, the assigning Party may assign its interest in such
Joint Intellectual Property to the third party identified in the Assignment
Notice at the Assignment Price or any higher price. This Section
18.5.3 shall not apply to a proposed assignment of Joint Intellectual Property
in connection with a merger, change of control, or sale of substantially all
the
assets of the Party’s business to which the Joint Intellectual Property
relate.
18.6. Enforcement
Of Intellectual Property. If either Party becomes aware of any
infringement of any issued Joint Intellectual Property, such Party will promptly
notify the other Party in writing to that effect. EPIR shall have the
first exclusive right, but not the obligation, to take action to obtain a
discontinuance of infringement or bring suit against such third party to enforce
such Intellectual Property and to join SETI as a party plaintiff. If
EPIR has not taken any such action or brought such a suit within a period of
ninety (90) days after receiving written notice from SETI of such infringement,
then SETI shall have the second exclusive right, but not the obligation, to
take
such action or bring such suit, and to join EPIR as a party
plaintiff. If SETI does not take such action or bring such suit
within ninety (90) days after the expiration of such period, then neither Party
shall take such action or bring such suit without the written consent of the
other party. The Party taking the enforcement action shall be the
“Enforcing Party” and will bear all the expenses of any such suit
brought. The other Party will cooperate with the Enforcement Party in
any such suit brought against a third party, and will have the right to consult
with the Enforcement Party and to participate in and be represented by
independent counsel in such litigation at its own expense. The
Enforcement Party will incur no liability to the other Party as a consequence
of
such litigation or any unfavorable decision resulting therefrom; provided,
however, that the Enforcement Party will not, without the other Party’s prior
written consent, enter into any settlement or consent decree that requires
any
payment by or admits or imparts liability to the other Party. Any
recoveries obtained by the Enforcement Party as a result of any proceeding
against a third party infringer of Joint Intellectual Property will be allocated
as follows:
|
|
(i)
|
Such
recovery will first be used to reimburse each Party for all litigation
costs in connection with such litigation paid by that
Party;
|
|
|
(ii)
|
EPIR
and SETI will share equally any remaining portion of such recovery
after
payment of the amounts specified in clause
(i).
|
27
18.7. Disclaimer. Except
as otherwise expressly provided herein, nothing contained in this Agreement
shall be construed or interpreted, either expressly or by implication, estoppel
or otherwise, as: (i) a grant, transfer or other conveyance by either Party
to
the other of any right, title, license or other interest of any kind in any
of
the other Party’s Intellectual Property, (ii) creating an obligation on the part
of either Party to make any such grant, transfer or other conveyance or (iii)
requiring either Party to participate with the other Party in any cooperative
development program or project of any kind or to continue with any such program
or project.
18.8. Confidentiality. The
protection of each Party’s Confidential Information is described in
Article 19. Any disclosure of information by one Party to the
other under the provisions of Article 19 shall be treated as the disclosing
Party’s Confidential Information under this Agreement (subject to the exceptions
set forth in Article 19). When the TDB decides that a patent
application for Joint Intellectual Property should be prepared and filed, both
Parties thereby assent to the inclusion into the specification thereof of any
Confidential Information necessary under the United States Patent Law to support
the claims of the patent application; to the laid open publication of the patent
application, at a time which the TDB in its sole discretion may direct; and
to
the later disclosure, if any, of such Confidential Information as may be
necessary to prosecute the patent application to issuance.
ARTICLE
19. NONDISCLOSURE
AND PUBLICITY
19.1. Confidentiality.
(a) It
is contemplated that in the course of the performance of this Agreement each
Party (the “Disclosing Party”) may, from time to time, disclose Confidential
Information to the other Party (the “Receiving Party”). “Confidential
Information” shall be defined as: (a) any information that is specifically
related to the New Technologies and EPIR Products being developed under this
Agreement, or to the EPIR Independent Products; (b) any customer data or market
related information; (c) any information related to the process of development
or manufacture of the New Technologies, EPIR Products or the EPIR Independent
Products; (d) any information relative to the Schedule of Payments or to the
other terms and conditions of this Agreement; and (e) any information or
material that is marked as “Confidential” or “Proprietary”. In
particular, any information disclosed by EPIR to SETI relating to the New
Technology EPIR Products or EPIR Independent Products shall be
treated as EPIR’s Confidential Information. Any information disclosed
by SETI to EPIR relating to SETI Products shall be SETI’s Confidential
Information. Notwithstanding the foregoing, “Confidential
Information” shall not include any information that the Receiving Party can
demonstrate:
28
|
|
(i)
|
was
in Receiving Party’s possession prior to disclosure by Disclosing Party
hereunder;
|
|
|
(ii)
|
was
generally known, in the trade or business in which it is practiced
by
Disclosing Party, at the time of disclosure to Receiving Party hereunder,
or becomes so generally known after such disclosure, through no act
of
Receiving Party or its employees, agents or independent contractors;
or
|
|
|
(iii)
|
has
come into the possession of Receiving Party from a third party who
is not
known by Receiving Party to be under any obligation to Disclosing
Party to
maintain the confidentiality of such
information;
|
(b) If
a particular portion or aspect of Confidential Information becomes subject
to
any of the foregoing exceptions, all other portions or aspects of such
information shall remain subject to all of the provisions of this
Agreement.
(c) In
accordance with the terms and conditions of this Agreement, each Party shall
maintain in confidence the Confidential Information of the other Party, shall
not use or grant the use of the Confidential Information of the other Party
except as expressly permitted hereby, and shall not disclose the Confidential
Information of the other Party except on a need-to-know basis to such Party’s
directors, officers and employees to the extent such disclosure is reasonably
necessary in connection with such Party’s activities as expressly authorized by
this Agreement.
19.2. Third
Party Disclosure. Either Party may disclose Confidential
Information of the Disclosing Party to those affiliates, agents and consultants
who need to know such information to accomplish the purposes of this Agreement
(collectively, “Related Parties”), provided, however:
(a) the
disclosing party shall be informed of all Related Parties who have access to
the
Confidential Information;
(b) the
Related Parties shall be advised that such Confidential Information is
confidential and proprietary to the disclosing party and shall require each
such
Related Party to agree to restrictions and obligations at least as strict as
those set forth herein prior to disclosure of any Confidential Information;
and
(c) the
Party disclosing the other Party’s Confidential Information to the Related
Parties shall diligently enforce any and all confidentiality agreements with
Related Parties and shall be responsible and liable for any breach of the
confidentiality obligations and restrictions on use set forth herein by any
Related Parties.
29
19.3. Litigation
And Governmental Disclosure. Each Party may disclose Confidential
Information hereunder to the extent such disclosure is reasonably necessary
for
prosecuting or defending litigation, complying with applicable laws,
governmental regulations or court orders, provided that if a Party is required
by law or regulation to make any such disclosure of the other Party’s
Confidential Information it will, except where impractical for necessary
disclosures, for example in the event of a medical emergency, give reasonable
advance notice to the other Party of such disclosure requirement and will use
good faith efforts to assist such other Party to secure a protective order
or
confidential treatment of such Confidential Information required to be
disclosed.
19.4. Limitation
Of Disclosure. The Parties agree that information concerning this
Agreement and the transactions contemplated herein shall be considered
Confidential Information of both Parties and shall not be disclosed without
the
prior written consent of the other Party. Notwithstanding the
foregoing, either Party may disclose this Agreement (a) as may be required
by
applicable laws, regulations, rules or orders, including without limitation
the
rules and regulations promulgated by the United States Securities and Exchange
Commission and as authorized in Section 19.3, and (b) to prospective investors
and business partners conducting due diligence pursuant to customary
confidentiality agreements, the form of which must be agreed to in writing
by
the Parties prior to any disclosure.
19.5. Publicity
and SEC Filings. The Parties agree that the public announcement of the
execution of this Agreement shall only be by one or more press releases mutually
agreed to by the Parties. The failure of a party to return a draft of a press
release with its proposed amendments or modifications to such press release
to
the other party within five (5) business days of such party’s receipt of such
press release shall be deemed as such party’s approval of such press release as
received by such party. Each party agrees that it shall cooperate fully and
in a
timely manner with the other with respect to all disclosures to the Securities
and Exchange Commission and any other governmental or regulatory agencies,
including requests for confidential treatment of Confidential Information of
either party included in any such disclosure.
ARTICLE
20. FORCE
MAJEURE
20.1. Any
delay
in the performance of any of the duties or obligations of either Party hereto
(except the payment of money), to the extent caused by an event outside the
affected Party’s reasonable control, shall not be considered a breach of this
Agreement, and unless provided to the contrary herein, the time required for
performance shall be extended for a period equal to the period of such delay.
Such events shall include without limitation, acts of God; acts of public
enemies; insurrections; riots; injunctions; embargoes; labor disputes, including
strikes, lockouts, job actions, or boycotts; fires; explosions; floods;
shortages of material or energy; delays in the delivery of raw materials; acts
or orders of any government or agency thereof or other unforeseeable causes
beyond the reasonable control and without the fault or negligence of the party
so affected. The Party so affected shall give prompt written notice to the
other
Party of such cause and a good faith estimate of the continuing effect of the
force majeure condition and duration of the affected party’s nonperformance, and
shall take whatever reasonable steps are appropriate to relieve the effect
of
such causes as rapidly as possible. If the period of nonperformance by EPIR
because of force majeure conditions exceeds ninety (90) calendar days, SETI
may terminate this Agreement by written notice to EPIR. If the period of
nonperformance by SETI because of force majeure conditions exceeds ninety
(90) calendar days, EPIR may terminate this Agreement by written notice to
SETI.
30
ARTICLE
21. MISCELLANEOUS
21.1. Entire
Agreement. This Agreement, as including its Exhibits,
supersedes and incorporates all prior and contemporaneous written and oral
negotiations and representations of the Parties concerning the subject matter
hereof. This Agreement may not be amended except by a further writing
signed by both Parties.
21.2. No
Waiver. The failure of a Party to exercise any right under this
Agreement shall not amount to a continuing waiver of such right.
21.3. Assignment. This
Agreement shall be binding upon the administrators, successors and permitted
assigns of the Parties. A Party may freely assign the rights and
duties created by this Agreement as a body to a single successor in interest
to
the entire business of such Party, which may in turn freely assign all of the
rights and duties as a body to a further similar successor in
interest. In the event of any such permitted assignment, the
assigning Party will notify the nonassigning Party thereof promptly thereafter
and provide information concerning the assignee that the nonassigning Party
may
reasonably request. No other assignment under this Agreement shall be
made without the express prior written permission of the nonassigning
Party.
21.4. Governing
Law. This Agreement shall be construed according to the laws of
the State of Illinois, other than such laws, rules, regulations and case
law which would result in the application of the laws of a jurisdiction other
than the State of Illinois.
21.5. Headings;
Interpretation. Headings and subheadings in this Agreement are
included solely for convenience of reference and will not affect the
interpretation of, or be considered a part of, this Agreement. As
used in this Agreement, the words "include," “includes” and “including” are not
limiting, and the word "or" is not exclusive.
21.6. Counterparts. This
Agreement may be signed in two or more counterparts, each of which will be
deemed an original but all of which will constitute the same
instrument.
21.7. Remedies. Unless
otherwise expressly provided in this Agreement, all remedies hereunder are
cumulative and in addition to any other remedies provided for by law and may,
to
the extent permitted by law, be exercised concurrently or separately, and the
exercise of any one remedy shall not be deemed to preclude the exercise of
any
other remedy.
21.8. Notices. All
notices hereunder shall be delivered by facsimile, and by overnight delivery
(with signature required) with a reputable overnight delivery service, to the
following address of the respective Parties:
31
|
Sunovia
Energy Technologies, Inc.
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Fax
#: 941/
751-3583
Phone
#: 941/ ▇▇▇-▇▇▇▇
|
▇▇▇▇
Technologies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax #: ▇▇▇ ▇▇▇ ▇▇▇▇
Phone #: ▇▇▇ ▇▇▇
▇▇▇▇
|
32
Each
Party warrants and represents that the person(s) signing this Agreement below
are the authorized representatives of such party with authority to execute
this
Agreement on behalf of such party. This Agreement will be effective
and come into force on the Amendment Effective Date listed above.
|
SUNOVIA
ENERGY TECHNOLOGIES, INC.
|
EPIR TECHNOLOGIES, INC: | ||||
| DATE: | DATE: | ||||
| SIGNATURE: |
/s/
|
SIGNATURE: |
/s/
|
||
| NAME: |
▇▇▇▇
▇▇▇▇▇
|
NAME: |
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
| TITLE: |
|
TITLE: |
|
||
| WITNESS SIGNATURES: | |||||
| SIGNATURE OF SETI WITNESS | SIGNATURE OF EPIR WITNESS | ||||
| PRINTED NAME OF WITNESS | PRINTED NAME OF WITNESS |
33
EXHIBIT
A
TECHNOLOGY
DEVELOPMENT BOARD
The
Technology Development Board (“TDB”) shall consist of four (4)
individuals. The members of the TDB will be appointed as
follows:
|
1.
|
Appointed
by EPIR (“EPIR Appointed Member”)
|
|
2.
|
Appointed
by EPIR (“EPIR Appointed Member”)
|
|
3.
|
Appointed
by SETI (“SETI Appointed Member”)
|
|
4.
|
Appointed
by SETI (“SETI Appointed Member”)
|
Either
Party may replace either or both members of the TDB that they have
appointed. The TDB may act only by unanimous vote or
consent.
The
Parties shall co-develop a Technology Development Board Agreement (“the TDB
Agreement”) that the sitting members of the TDB must sign prior to formally
joining the TDB. The TDB Agreement shall be included as an addendum
to this agreement upon its finalization.
The
duties of the TDB shall include:
(a)
define the New Technologies and EPIR Products that are to be developed and
commercialized under this Agreement.
(b)
establish Product Specifications, including initial target production cost,
for
each EPIR Product, and appropriate timelines for the development, manufacture
and subsequent sale of such SETI Product or EPIR Product.
(c)
for
each EPIR Product, establish and define quality control, quality standards
and
standard operating procedures.
(d)
modify, as the TDB deems necessary or desirable, the Product Specifications
and/or standard operating procedures for any and all EPIR Products manufactured
hereunder.
(e)
with
respect to Joint Intellectual Property: decide, for any invention conceived
of
or reduced to practice in the course of carrying out this Agreement, whether
patent protection for such invention should be pursued, and if so in which
countries or regions such protection should be pursued, or whether such
invention should be protected as a trade secret.
(f)
with
respect to Joint Intellectual Property: direct the prosecution of any and all
resulting patent applications, determine which applications or issued patents
should be maintained, and determine which applications or issued patents should
be abandoned for failure to further prosecute or should be permitted to lapse
for failure to pay governmental maintenance fees or annuities.
34
(g)
with
respect to Joint Intellectual Property: select and appoint patent counsel to
protect the invention(s) considered under (e) and (f). Selected
counsel shall be deemed to have been jointly appointed by EPIR and
SETI.
(h)
except as provided in section 7.1, endeavor, within commercially reasonable
means to ensure that each project authorized by the TDB for undertaking by
EPIR
is sufficiently funded so that anticipated research expenditures during any
six-month period do not exceed the research portion of the applicable Scheduled
Payment previously received by EPIR. In the event that the TDB
determines that EPIR shall undertake projects that will cause EPIR’s aggregate
research and development costs to exceed the aggregate research portions of
the
Scheduled Payments received by EPIR to date, the TDB shall increase the amount
of the Scheduled Payments so as to fully fund the research and development
work,
and the Parties shall amend Exhibit A-1 to reflect such changes.
(i)
establish sales goals for each EPIR Product and related SETI Product to be
marketed by SETI, which shall include sales goals for each [year] for the
[three] year period following the introduction of a new SETI Product in the
marketplace.
35
Exhibit
A-1
Scheduled
Payments
SETI
shall make to EPIR the non-refundable payments set forth below. The
Parties understand that the TDB may identify, and EPIR may undertake, research
and development of additional New Technologies and EPIR Products, which are
not
listed in Exhibit B hereto, but that additional capital may be required to
fund
such work. The Parties further understand that mass producing the
EPIR Products in quantities sufficient to satisfy SETI’s commercial demand
therefor will require funding additional to the payments listed
below.
[The
first $1,000,000 per calendar year of payments by SETI to EPIR under this
Exhibit will be classified as research and development capital, and any excess
of such payments in the calendar year will be considered investment in
capital. However, the classification of the payments shall have no
bearing on either Parties responsibility to promptly and efficiently satisfy
its
obligations hereunder.]
SETI
agrees to provide funding to EPIR based upon the following
Schedule:
Payment
Amount Payment
to be received by
$1,700,000 November
30, 2007*
$1,000,000 February
1, 2008
$1,000,000 April
1, 2008
$1,000,000 October
1, 2008
$1,000,000 December
1, 2008
$1,000,000 March
1, 2009
$1,000,000 June
1, 2009
$1,000,000 August
1, 2009
$1,000,000 October
1, 2009
$1,000,000 December
1, 2009
$1,000,000 March
1, 2010
$1,000,000 June
1, 2010
$1,000,000 August
1, 2010
$1,000,000 October
1, 2010
$1,000,000 December
1, 2010
$ 500,000 April
1, 2011
$ 500,000 October
1, 2011
$ 500,000 April
1, 2012
$ 500,000 October
1, 2012
$ 500,000 April
1, 2013
$ 500,000 October
1, 2013
$ 500,000 April
1, 2014
$ 500,000 October
1, 2014
$ 500,000 April
1, 2015
$ 500,000 October
1, 2015
$ 500,000 April
1, 2016
$ 500,000 October
1, 2016
$ 500,000 April
1, 2017
$ 500,000 October
1, 2017
$ 500,000 March
1, 2017
$ 500,000 October
1, 2017
*
Previously funded
36
Exhibit
A-2
Company
Contacts
EPIR’s
Technical
Contact:
Printed
Name
Telephone
Number
Email address
SETI’s
Technical
Contact:
Printed
Name
Telephone Number
Email address
SETI’s
Marketing
Contact:
Printed
Name
Telephone Number
Email address
37
EXHIBIT
B
Technology
Development Strategy and Procedure
The
“Product List” will be formally identified by the Parties as EPIR Products that
will be researched and developed under this Agreement.
Initially,
the TDB shall produce a “Technology Development Strategy and Roadmap” (TDSR)
that identifies key technologies to examine, possible application of the
technologies, cost effective manufacturing strategies for EPIR Products using
the technologies, and concepts for commercialization of the technologies into
applications with targeted price points for the systems to be
developed.
A
key
exhibit within the TDSR will be a requirements document that specifies core
technologies that will be developed during the Term, strategic sequencing of
those technologies, and list of potential products that would be anticipated
from the core technologies developed. For example, the development of advanced
encapsulates from zinc oxide which enhance the performance of existing PV
materials within solar applications would be a candidate for immediate
development and commercialization while ongoing efforts for higher efficiency
solar materials continue.
It
is
important that, for each EPIR Product, the Product Specifications include,
but
not be limited to, information specific to New Technology performance criteria,
product dimensions, and other pertinent data that will be necessary to develop
the New Technology to standards required to sell the related SETI
Products.
38
EXHIBIT
C
“Minimum
Purchase Commitments”
EPIR
Products
Upon
the
development of the New Technologies and prior to the mass manufacturing of
the
EPIR Products, EPIR and SETI shall negotiate, in good faith, a fair and
reasonable schedule that delineates the quantities of EPIR Product that SETI
must purchase from EPIR (“Minimum Purchase Commitments” for EPIR
Product).
The
Parties understand and agree that pertinent market data, competitive product
analyses, and other relative information must be carefully reviewed in order
to
make a fair and reasonable determination as to the quantities to be purchased
from EPIR by SETI on an annualized basis. The Parties shall use good
faith efforts to develop and agree upon a Minimum Purchase Commitment schedule
by the second anniversary of the Effective Date.
EPIR
Independent Products
EPIR
may
specify from time to time a fair and reasonable schedule that delineates the
quantities of EPIR Independent Product that SETI must purchase from EPIR
(“Minimum Purchase Commitments” for EPIR Independent Product)
39
EXHIBIT
D
“EPIR
PRODUCT PRICING”
EPIR
and
SETI agree to establish EPIR Product pricing that is favorable to both EPIR
and
SETI.
Upon
completion of development of an EPIR Product, EPIR agrees to provide to SETI,
in
writing, the projected cost of the EPIR Product, without markup, at several
tiers of mass production. The projected cost will only include the
costs specifically associated with the EPIR Product, and will be based upon
GAAP. Annual audits shall be conducted by a SEC certified auditing
firm whereby the actual expenses of the EPIR Product will be
determined.
Market
research shall then be completed by a mutually acceptable, independent and
expert organization that specializes in establishing price points for such
products. Upon receipt of the suggested price points from this
organization, the Parties agree to develop pricing for the EPIR Products, the
EPIR Independent Products and the related SETI Products that will be equally
beneficial and equally profitable to both EPIR and SETI.
The
Parties agree to abide by the recommendations of the abovementioned independent
organization as it relates to product pricing to third parties.
“SALES
PERFORMANCE”
SETI
agrees to cause the sale of any and all EPIR Products manufactured by EPIR
as
long as the EPIR Products meet or exceeds all of the specifications and
parameters set forth by the TDB within the designated timeframe.
Should
SETI fail to sell any manufactured EPIR Products that meets or exceeds the
TDB’s
specifications, then EPIR has the right to engage a new sales and marketing
firm
to distribute the manufactured EPIR Products.
40
EXHIBIT
E
“SAMPLE
EPIR PRODUCT PRICE LISTING” or
“SAMPLE
EPIR INDEPENDENT PRODUCT PRICE LISTING”
EPIR
shall provide a Product Price List to SETI in a format similar to the Sample
Price List below:
|
Part
No.
|
Description
|
Dimensions
|
Performance
Data
|
Unit
Price
|
|
0000001
|
Solar
Enhancement
|
$x,xxx.xx
|
EPIR
shall provide SETI with any and all Product Specifications for any and all
EPIR
Products.
41
EXHIBIT
F
QUALITY
ASSURANCE AND QUALITY CONTROL
a. EPIR
and
SETI shall manufacture or cause the EPIR Products, EPIR Independent Products
and
SETI Products to be manufactured in accordance with any applicable
laws.
b. If
EPIR
or SETI obtains information that any of the EPIR Products, EPIR Independent
Products or SETI Products or any portion thereof is alleged or proven not to
perform at the levels specified within the applicable Product Specifications,
then the Party shall notify the other Party immediately and both Parties shall
cooperate fully regarding the investigation and disposition of any such
matter.
c. EPIR
and
SETI shall each maintain such traceability records as are sufficient and as
may
be necessary to permit a recall or field correction of any SETI Products, EPIR
Products and EPIR Independent Products.
d. In
the
event (a) any applicable federal or state regulatory authority should issue
a
request, directive or order that any of the SETI Products, EPIR Products or
EPIR
Independent Products be recalled, or (b) a court of competent jurisdiction
orders such a recall, or (c) EPIR determines that any of the EPIR Products
or
EPIR Independent Products, or SETI determines that any of the SETI Products
(respectively), already in commerce present a risk of injury or gross deception
or is otherwise defective, and that recall of such SETI Products, EPIR Products
or EPIR Independent Products is appropriate (a “Recall”), each Party shall give
telephonic notice (to be confirmed in writing) to the other within twenty-four
(24) hours after becoming aware of the event. EPIR and SETI shall
mutually determine all corrective action to be taken and to implement the
Recall.
e. Product
Complaints. SETI and EPIR shall each record any complaints received
with respect to the SETI Products, EPIR Products and EPIR Independent
Products.
EPIR
shall promptly provide to SETI written notice of any complaints (and will
provide copies of any written complaints) received by EPIR with respect to
any
EPIR Product, EPIR Independent Product or SETI Product.
SETI
shall promptly provide to EPIR written notice of any complaints (and will
provide copies of any written complaints) received by SETI with respect to
any
EPIR Product, EPIR Independent Products or SETI Product. SETI shall have
responsibility for responding to all complaints, and for promptly providing
EPIR
with a copy of any responses to complaints, relating to the SETI Products,
EPIR
Products or EPIR Independent Products, including but not limited to complaints
from competitors regarding promotional activities by SETI. EPIR shall
cooperate with SETI to provide any information SETI, in good faith, deems
necessary to respond to such complaints. EPIR shall have sole responsibility
at
its expense for reporting any complaints relating to the EPIR Products or EPIR
Independent Products to any Governmental Authority required, including, but
not
limited to, complaints relating to the manufacture of the EPIR Products or
EPIR
Independent Products as well as any adverse reports.
42
f. SETI
shall (a) not give any third party purchaser of the SETI Products any guarantee
or warranty on behalf of EPIR, (b) follow up and investigate customer and
tampering complaints related to the products, (c) keep EPIR informed, as
appropriate, as to the nature, status and resolution of such complaints on
a
timely basis with sufficient information to EPIR to investigate such complaints,
and (d) handle, use and store the EPIR Products, EPIR Independent Products
and
SETI Products in compliance with Good Manufacturing Practices and Applicable
Laws.
g. Compliance
with Applicable Law. Each Party shall use commercially reasonable efforts to
maintain in full force and effect all necessary licenses, permits and other
authorizations required by Applicable Law to carry out its duties and
obligations under this Agreement. Each Party shall comply with all Applicable
Laws, provided, that SETI shall be solely responsible for compliance with those
Applicable Laws pertaining to the marketing, promotion, advertisement, sale
and
distribution of the SETI Products (including, without limitation, those
Applicable Laws that apply to documentation and records retention pertaining
to
the distribution and use of SETI Products) and EPIR shall be solely responsible
for compliance with those Applicable Laws pertaining to the manufacturing and
supply of the EPIR Products and EPIR Independent Products (including, without
limitation, those Applicable Laws that apply to documentation and records
retention pertaining to the manufacture of EPIR Products or EPIR Independent
Products). Without limiting the generality of the foregoing, SETI shall not
promote the EPIR Products or EPIR Independent Products for any representations
not contained in the approved Product Specifications or in any manner in
conflict with the approved labeling and all Applicable Laws. SETI shall store
and distribute the EPIR Products, EPIR Independent Products and trade forms
in
compliance with all Applicable Laws. Each Party will cooperate with the other
to
provide such letters, documentation and other information on a timely basis
as
the other Party may reasonably require to fulfill its reporting and other
obligations under Applicable Laws to applicable regulatory authorities. Except
for such amounts as are expressly required to be paid by a Party to the other
under this Agreement, each Party shall be solely responsible for any costs
incurred by it to comply with its obligations under Applicable
Laws.
h. Reasonable
Cooperation. EPIR and SETI each hereby agrees to use commercially reasonable
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary or proper to make effective the transactions
contemplated by this Agreement, including such actions as may be reasonably
necessary to obtain approvals and consents of governmental persons (including,
without limitation, all notifications).
i. Compliance
Audits. (a) From time to time as EPIR may elect during the Term (but
no more than once each calendar year), during normal business hours and upon
reasonable notice from EPIR (but not less than ten (10) business days’ prior
notice), SETI shall permit duly authorized representatives of EPIR to review
and
inspect, to the extent relevant to SETI’s marketing and distribution of the EPIR
Products and EPIR Independent Products, the premises, facilities, inventories
of
the SETI Products, records and documentation maintained by SETI for the purpose
of determining compliance by SETI with its obligations under this
Agreement. (b) From time to time as SETI may elect during the Term
(but no more than once each calendar year), during normal business hours and
upon reasonable advance notice from SETI (but not less than ten (10) business
days’ notice), EPIR shall permit duly authorized representatives of SETI to
review and inspect, on the premises of EPIR or its relevant subcontractors
each
manufacturing facility for the EPIR Products and EPIR Independent Products
and
on the premises of EPIR where such records and inventory are kept, inventory
of
the EPIR Products and EPIR Independent Products, manufacturing documentation
and
EPIR’s quality control records relating to the storage of the EPIR Products and
EPIR Independent Products to ensure compliance with Good Manufacturing
Practices, quality control standards and the packaging and labeling for the
EPIR
Products and EPIR Independent Products; and with applicable terms of this
Agreement pertaining to the use of the SETI Trademarks; provided, however,
that
except as otherwise provided herein, nothing in the foregoing shall allow or
be
construed to allow SETI to have access to any confidential manufacturing
know-how or trade secrets of EPIR or any records containing or pertaining to
the
same.
43
EXHIBIT
G
“EPIR
WARRANTY OF EPIR PRODUCTS” and
"EPIR
WARRANTY OF EPIR INDEPENDENT PRODUCTS”
Warranty
EPIR
warrants to SETI that the EPIR Products and EPIR Independent Products will
be
free from material defects in material and workmanship. A material defect shall
exist only if a product does not meet an applicable Product
Specification. Subject to the conditions and limitations set forth
below, EPIR will, at its option, either repair or replace the defect product
or
any part of the defective product. Repaired or replaced products will be
provided by EPIR to SETI on an exchange basis, and will be either new or
refurbished to be functionally equivalent to new. If EPIR is unable
to repair or replace the product, it will refund to SETI the amount paid to
EPIR
by SETI for that product. Repair or replacement of, or refund for,
defective products shall be SETI’s sole and exclusive remedy for violation of
this Warranty.
This
limited warranty does not cover any damage to a EPIR Product or EPIR Independent
Product which occurs during shipment from EPIR to SETI, or that results from
improper installation, accident, abuse, misuse, natural disaster, abnormal
mechanical or environmental conditions, or any unauthorized disassembly, repair,
or modification. This limited warranty also does not apply to any product on
which the original identification information has been altered, obliterated
or
removed, has not been handled or packaged correctly, has been sold as
second-hand or has been resold contrary to the US export
regulations.
This
limited warranty covers only repair, replacement or refund for defective EPIR
Products or EPIR Independent Products, as provided above. EPIR is not liable
for, and does not cover under warranty, any loss of data or any costs associated
with determining the source of system problems or removing, servicing or
installing EPIR Products or EPIR Independent Products. In the event
of a claim, EPIR’s sole obligation shall be replacement of the EPIR Product or
EPIR Independent Product.
Six-Month
Warranty:
The
EPIR
Products and EPIR Independent Products are covered by this warranty for a period
of six months from the date of delivery and acceptance of such EPIR Product
or
EPIR Independent Product.
Discontinued
EPIR Products or EPIR Independent Products will not be covered as their warranty
has expired.
This
limited warranty is non-transferable.
44
EPIR
Technical Support can be contacted by calling .
Warranty
Claim Procedures and Requirements
SETI
must
notify EPIR within the warranty period to receive a Returned Materials
Authorization (“RMA”) number to return or arrange for the return of the defect
EPIR Product or EPIR Independent Product. SETI may not return or
arrange for the return of a EPIR Product or EPIR Independent Product to EPIR
for
any reason without EPIR’s RMA. Once EPIR issues an RMA, EPIR shall
accept return of the EPIR Product or EPIR Independent Product. SETI
shall bear the cost of shipping defective products back to EPIR. If
the product returned to EPIR was not, in fact, defective, then SETI shall bear
the risk of loss during shipment.
SETI
must
return the defective EPIR Product or EPIR Independent Product to EPIR in
appropriate secure packaging. Product identification information must
be included (RMA, part number and serial number (if applicable) with a detailed
description of the problem). SETI must also include proof of the date
of delivery and acceptance as evidence that the product is within the applicable
warranty period.
SETI
will
return the product directly to the EPIR facility located at the following
address:
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇
▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
The
returned EPIR Product or EPIR Independent Product will become the property
of
EPIR. Except as provided above, repaired or replacement products will
be shipped at EPIR’s expense via UPS Ground. SETI shall bear the risk
of loss during shipment. Repaired or replacement EPIR Products or
EPIR Independent Products will continue to be covered by this limited
warranty.
Disclaimers
THE
FOREGOING IS THE COMPLETE WARRANTY FOR THE EPIR PRODUCTS AND EPIR INDEPENDENT
PRODUCTS. EXCEPT AS EXPRESSLY SET FORTH ABOVE, NO OTHER WARRANTIES ARE MADE
WITH
RESPECT TO THE EPIR PRODUCTS OR EPIR INDEPENDENT PRODUCTS AND EPIR EXPRESSLY
DISCLAIMS ALL WARRANTIES NOT STATED HEREIN, INCLUDING, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY WARRANTY THAT MAY EXIST UNDER NATIONAL, STATE, PROVINCIAL
OR LOCAL LAW INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ALL
WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARE LIMITED TO THE PERIODS OF TIME
SET
FORTH ABOVE. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION
OF
IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS,
SO THE
ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
45
THE
EPIR PRODUCTS AND EPIR INDEPENDENT PRODUCTS ARE NOT AUTHORIZED FOR USE AS
CRITICAL PRODUCTS IN 3RD PARTY
EQUIPMENT OR
FOR APPLICATIONS IN WHICH THE FAILURE OR MALFUNCTION OF THE EPIR PRODUCTS
OR
EPIR INDEPENDENT PRODUCTS WOULD CREATE A SITUATION IN WHICH PERSONAL INJURY
OR
DEATH IS LIKELY TO OCCUR. EPIR SHALL NOT BE LIABLE FOR THE DEATH OF ANY PERSON
OR ANY LOSS, INJURY OR DAMAGE TO PERSONS OR PROPERTY BY USE OF EPIR PRODUCTS
OR
EPIR INDEPENDENT PRODUCTS USED IN APPLICATIONS INCLUDING, BUT NOT LIMITED
TO,
MILITARY OR MILITARY-RELATED EQUIPMENT, TRAFFIC CONTROL EQUIPMENT, DISASTER
PREVENTION SYSTEMS AND MEDICAL OR MEDICAL-RELATED
EQUIPMENT.
EPIR’S
TOTAL LIABILITY UNDER THIS OR ANY OTHER WARRANTY, EXPRESS OR IMPLIED, IS
LIMITED
TO REPAIR, REPLACEMENT OR REFUND. REPAIR, REPLACEMENT OR REFUND ARE THE SOLE
AND
EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EPIR SHALL NOT BE LIABLE FOR
ANY
DAMAGES, EXPENSES, LOST DATA, LOST REVENUES, LOST SAVINGS, LOST PROFITS,
OR ANY
OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM THE PURCHASE, USE
OR
INABILITY TO USE THE EPIR PRODUCT OR EPIR INDEPENDENT PRODUCT, EVEN IF EPIR
HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR OTHER
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY
TO
YOU.
THIS
LIMITED WARRANTY PROVIDES SPECIFIC LEGAL RIGHTS, AND SETI MAY ALSO HAVE OTHER
RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO
JURISDICTION.
THIS
DISCLAIMER DOES NOT PURPORT TO LIMIT OR EXCLUDE EPIR’S LIABILITY FOR DEATH OR
INJURY CAUSED BY ITS NEGLIGENCE OR FOR FRAUDULENT
MISREPRESENTATION.
46