MARKETING AGREEMENTAdvertising or Marketing Agreement |
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POLAR MOLECULAR CORPORATION | ELF ANTAR FRANCE. RealDealDocs™ contains millions of easily searchable legal documents and clauses from top law firms. Search for free - click here. |
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MARKETING AGREEMENT
This Marketing Agreement (this “Agreement”) is made as of this 11 day of September, 2001 (the “Effective Date”) between POLAR MOLECULAR CORPORATION, a Delaware corporation having its principal place of business at 4600 S. Ulster Street, Suite 700, Denver, Colorado 80237, USA, (“PMC”), and ELF ANTAR FRANCE, a French corporation having its principal place of business at 24, cours MICHELET, 92800 PUTEAUX, FRANCE (“ELF”)
RECITALS
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A. |
PMC has developed and is currently marketing the Duralt® FC additive technology for gasoline and diesel fuel which is designed to reduce octane requirement increase and combustion chamber deposits in gasoline engines, to act as a substitute for lead in gasoline, and to improve combustion in diesel fuels. The Duralt® FC additive technology, together with all improvements thereto, now existing or hereinafter made or acquired by PMC are herein called the “PMC Additive technology”. |
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B. |
ELF has developed gasoline and diesel fuel detergent additives and multipurpose package technology for the global gasoline and diesel fuel market. Such existing ELF additive and package technology, together with all improvements thereto, now existing or hereinafter made or acquired by ELF are herein called the “ELF Additive Technology”. |
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C. |
PMC and ELF desire to share their technology to formulate gasoline and diesel additive packages to address the needs of certain customers who desire a combined technology consisting of a combination of PMC Additive Technology and the Elf Additive Technology (the “Combined Technology”) and to use their joint efforts to market the Combined Technology to such customers. |
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D. |
To accomplish the foregoing, each of PMC and ELF desire to make available to the other party their respective databases of information regarding the chemical properties and performance of each of their respective Additive Technology. |
AGREEMENT
In consideration of the foregoing and the mutual promises contained herein, the parties agree as follows:
1. PURPOSE OF THE AGREEMENT
The parties have identified a set of potential customers with which the parties have existing relationships that are potential customers for the Combined Additives and have already achieved technical results relative to the Combined Additives. Appendix 1 lists the potential customers thus far identified by the parties. ELF shall have the initial responsibility, with the participation of PMC, for mixing and testing the Combined Additives in Elf’s research center in Solaize. The “Purposes” of this Agreement shall refer to each of the purposes and goals set forth in this Section 1 and the other provisions of this Agreement. In order to further the Purposes of this Agreement, PMC hereby agrees to seek support from each of U.S. automakers, U.S. oil companies, private environmental organizations, the U.S. Environmental Protection Agency, and the California Air Resources Board to demonstrate the benefits of the Combined Additive Technology including octane requirement increase in the U.S. market.
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2. POTENTIAL CUSTOMERS AND MARKETING EFFORTS
This Agreement shall apply to the marketing and sales efforts of the parties to their respective potential customers with respect to the Combined Technology.
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(a) |
Potential customers. PMC will be exclusively in charge of the potential customers located in North and South America and ELF will be exclusively in charge of the potential customers located in Europe, Asia and Africa for the marketing and sales of Combined Technology. Nothing in this Agreement shall limit PMC’s ability to market and sell the PMC Additive Technology (other than as part of the Combined Technology) or ELF’s ability to market and sell the ELF Additive Technology (other than as part of the Combined Technology) to any customer or potential customer wherever located. |
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(b) |
Development. ELF and PMC will share primary responsibility for the development of marketing to their respective potential customers. To this end the parties will make use of their respective databases, technical information regarding the Additives and their Intellectual Property related to their respective Additives, and each party shall provide the other party with any marketing and technical support reasonably requested by such other party in furtherance of the marketing plan. Specific laboratory tests including engine bench or road test required by potential customers will be directly paid by the party in charge of the potential customers as mentioned here above. The parties shall consult with each other on a regular basis concerning the development and implementation of the marketing plan and shall have the primary responsibility to implement each portion of the marketing plan with respect to each potential customer, and any material modifications thereof, shall be subject to review and approval of each party. |
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(c) |
Performance Testing. In order to secure the potential customers’ acceptance of the Combined Additives, all performance testing of Additives to be marketed pursuant hereto will be primarily provided in the ELF research center of Solaize by ELF if the tests are available at the facility. The cost of these tests shall be borne by the Party in charge of the potential customer as here above described and will be included free of charge to the technical databases relative to the Combined Additive. |
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(d) |
Additives Sales. Each party will be totally in charge of its customers inside its respective geographic area as described in Section 2(a) and will manufacture the Combined Additive in its existing manufacturing plants or contract partner plants. The other party will transfer its respective Additive with the transfer price as described in Appendix 2 (the “Transfer Price”). Remuneration of the other party will be only based on the sales margin included in the Transfer Price. |
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(e) |
Supply of additives. Each party shall supply its Additives to the extent necessary to supply other party’s customers and to manufacture the Combined Additives to supply its customers. The Additives may be supplied directly to the other party or a third party contract manufacturer for blending into the Combined Additives. The additives supplied by each party shall be of the usual and customary commercial quality as described in Appendix 3. The parties shall mutually agree upon the most economic logistics for supplying additives to the other party, including the shipping terms for delivery, points of delivery, title and risk transfer, insurance, payment, credit, and other terms and arrangements as necessary to supply each customer in the most economical manner. ELF acknowledges that PMC currently manufactures its Additives using a third party contract manufacturer and the parties shall cooperate to coordinate the timing, utilization and location of such manufacturing to facilitate most efficiency and economically servicing each potential customer’s needs. PMC also acknowledges that ELF currently manufactures its Additives using a third party contract manufacturers which is an ELF subsidiary and the parties shall cooperate to coordinate the timing, utilization and location of such manufacturing to facilitate most efficiency and economically servicing each customer’s needs. |
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3. COSTS
Except as expressly set forth in this Agreement or as otherwise agreed to by the parties in writing, the parties shall not engage in any form of sharing of costs, expenses or losses, and unless expressly stated herein, nothing in this Agreement shall require a party to provide reimbursement or financial assistance to the other party.
4. INTELLECTUAL PROPERTY
(a) PMC Intellectual Property and ELF Intellectual Property. During the Term of this Agreement, subject to the terms and conditions hereof, PMC hereby grants to ELF, and ELF hereby grants to PMC, a non-exclusive, non-transferable right to use PMC Intellectual Property and ELF Intellectual Property, respectively, for mixing of Additives into Combined Additives, and for marketing and sales of Additives to the customers, it being understood that this right shall automatically be revoked in the event of any non-permitted use that continues for a period of 30 days after the applicable party gives written notice of such non-permitted use to the offending party. For purposes of this Agreement, “Intellectual Property” shall mean, wherever registered or perfected, any and all (i) trademarks, service marks, trade names, logos, business and product names, slogans, and registrations and applications for registration thereof; (ii) works in which copyright may be claimed, and registrations and applications for registration thereof; (iii) patents, patent applications, ideas or inventions (whether patentable or not), processes, designs, formulae, ideas, trade secrets, know how, confidential and technical information, product specifications and other technical, business, financial, customer and product development plans, forecasts, strategies, and confidential business information; and (iv) intellectual property rights similar to any of the foregoing; that the respective party owns or has a right to pursuant to license, sublicense, agreement, or permission or otherwise.
(b) Limitation of Rights. Unless as otherwise agreed in writing by the parties, neither party shall assign, transfer or otherwise permit any person to use the rights granted herein to the Intellectual Property of the other party without the prior written consent of the other party. The parties agree that all goods or services promoted and/or rendered under either of the PMC Intellectual Property or the ELF Intellectual Property will be of a nature and quality conforming to standards approved by PMC or ELF, respectively, and that PMC and ELF shall have the right to do all things reasonably necessary to insure the adequacy of the nature and quality of such goods and services. The parties shall use the registered marks of the other party only for the goods and services for which they have been registered and the unregistered marks and other Intellectual Property of the other party only for the goods, services and locations for which they have been used in accordance with past practice.
(c) Trademark Benefit. The parties agree that all use of the other party’s marks and other Intellectual Property, and all goodwill arising from such use, will inure to the benefit of the party owning such marks or Intellectual Property; provided, however, that nothing set forth herein shall diminish the rights of the party owning such marks or Intellectual Property, and all goodwill arising from such use, in and to such Intellectual Property.
(d) Ownership of Intellectual Property. Neither party, by virtue of this Agreement or any of its activities hereunder, shall obtain any ownership interest in or title to the Intellectual Property or Additives (including all Improvements thereto) of the other party.
(e) Enforcement and Protection of Intellectual Property. Each party shall have the sole and exclusive right, with the other party’s reasonable cooperation, to pursue protection for its Intellectual Property and to enforce its rights in its Additives against third party infringers. The expenses of any such enforcement, including legal proceedings relating thereto, shall be paid by the party that is asserting such right and any and all recoveries from a lawsuit or settlement shall be the property of such party. Each party agrees to notify the other party promptly of any suspected infringement of the other party’s Intellectual Property which may come to its attention and further agrees to assist the party that owns the Intellectual Property, at such party’s request, in any lawsuit or any other dispute involving such party’s Intellectual Property.
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5. REPRESENTATIONS AND WARRANTIES OF PMC
(a) Authority. PMC has the corporate power and authority to execute, deliver and perform its obligations under this Agreement, and upon execution and delivery by the parties, this Agreement shall constitute the valid and binding agreement of PMC, enforceable in accordance with its terms.
(b) No Breaches. The execution and delivery’ of this Agreement and the consummation of the transactions contemplated hereunder, shall not result in the breach of, or give rise to cause for termination of any material contract to which PMC is a party, or, to PMC’s knowledge, which otherwise relates to the Additives and services defined in this Agreement.
(c) PMC Warranties. PMC warrants to ELF that it shall: (i) conduct its business in a manner that reflects favorably at all times on the parties’ Additives or services and the good name, goodwill and reputation of ELF; (ii) avoid deceptive, misleading or unethical practices that are detrimental to ELF or the parties’ Additives or services; (iii) make no false or misleading representations with regard to ELF or the parties’ Additives and services; and (iv) not publish or employ or co-operate in the publication or employment of any misleading or deceptive advertising material.
