EXHIBIT 10.14 CONFIDENTIAL NON-EXCLUSIVE LICENSE AGREEMENT

Exhibit 10.14

Confidential materials omitted and filed separately with the Securities and Exchange
Commission. Asterisks denote omissions.

CONFIDENTIAL

NON-EXCLUSIVE LICENSE AGREEMENT

BY AND AMONG

UNIVERSITY OF SOUTHERN CALIFORNIA,

CALIFORNIA INSTITUTE OF TECHNOLOGY

and

DIRECT METHANOL FUEL CELL CORPORATION

January 19, 2006

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CONFIDENTIAL NON-EXCLUSIVE LICENSE AGREEMENT

          THIS CONFIDENTIAL NON-EXCLUSIVE LICENSE AGREEMENT (this “ Agreement ” is entered into by and among University of Southern California, a California nonprofit educational institution having an address c/o Patent and Copyright Administration, 3716 South Hope Street, No. 313, Los Angeles, California 90007-4344 (“ USC ”), California Institute of Technology, a California nonprofit educational institution having an address c/o Office of Technology Transfer, 1200 East California Boulevard, M/C 210-85, Pasadena, California 91125 (“ Caltech ”) (USC and Caltech are collectively, the “ Licensor ”), and Direct Methanol Fuel Cell Corporation, a Delaware corporation qualified to do business in California and having its principal place of business at 2400 Lincoln Avenue, Altadena, California 91001 (the “ Licensee ”), sometimes collectively referred to as the “ Parties ” and individually referred to as a “ Party .”

RECITALS

          WHEREAS, pursuant to the DTI License, Licensor granted to DTI an exclusive license to make, have made and sell Licensed Products throughout the world, subject to (i) the reservation of USC’s and Caltech’s right, on the part of themselves and the Jet Propulsion Laboratory, to make, have made and use Licensed Products for educational, research and demonstrational purposes; and (ii) the rights of the U.S. Government under Title 35, United States Code, Sections 200-213, and NASA Contract NAS7-917 and the grant to the U.S. Government of a nonexclusive, non-transferable, irrevocable, paid-up license to practice or have practiced the Licensed Technology for or on behalf of the United States throughout the world.

          WHEREAS, pursuant to the Technology License and Transferred Rights Agreement, for the consideration described therein, DTI surrendered, assigned, transferred and conveyed to Licensor sufficient rights under the DTI License to enable Licensor to legally and effectively thereafter grant a single non-exclusive, non-transferable license to a single new entity.

          WHEREAS, pursuant to the Technology License and Transferred Rights Agreement, Licensee has been formed under the laws of Delaware and is qualified to do business in California for the purpose of being granted such non-exclusive, nontransferable license.

          WHEREAS, Licensee desires to obtain from Licensor, and Licensor is willing to grant to Licensee, a non-exclusive right and license (i) to use and exploit the Licensed Products and (ii) to practice the Licensed Technology for the purposes described herein, all subject to the terms and conditions of this Agreement.

AGREEMENT

     NOW, THEREFORE, in consideration of the premises and the mutual agreements, covenants and provisions contained herein, the receipt and sufficiency of which is acknowledged by the Parties, the Parties hereby agree as follows:

ARTICLE 1
Definitions and Interpretations

          1.1 Definitions . Unless the context requires otherwise, capitalized words and phrases used in this Agreement shall have the meanings specified in Schedule 1.1 attached hereto.

          1.2 Interpretations . In this Agreement, unless the context indicates otherwise: (a) the singular includes the plural and the plural the singular, and terms importing any gender shall be deemed to include all genders; (b) references to statutes, sections or regulations are to be construed as including all statutory or regulatory provisions consolidating, amending, replacing, succeeding or supplementing the statute, section or regulation referred to; (c) references to “writing” include printing, typing, lithography, facsimile reproduction and other means, including electronic, of reproducing words in a tangible visible form; (d) the words “including,” “includes” and “include” shall be deemed to be followed by the words “without limitation” or “but not limited to” or words of similar import; (e) references to articles, sections and schedules are to those of this Agreement unless otherwise indicated; (f) references to this Agreement shall be deemed to include all schedules attached hereto and all subsequent amendments and other modifications hereto (all of which are hereby incorporated herein by this reference); but if there is any conflict or inconsistency between the main body of this Agreement and any schedule or attachment, or any amendment or modification thereof, the provisions of the main body of this Agreement shall prevail; (g) references to other agreements, instruments or documents shall be deemed to include all amendments and other modifications thereto, but only to the extent such amendments and other modifications are permitted by the terms of this Agreement; (h) references to Laws shall be deemed to include all amendments, modifications and supplements thereto; and (i) references to Persons include their respective successors and permitted assigns.

ARTICLE 2

          2.1 Grant of License . Subject to the terms and conditions herein contained, on the Effective Date and for the duration of the License Period, Licensor shall grant and hereby grants to Licensee, a royalty-bearing, non-exclusive right and license to and under the Licensor Rights (“ License ”) to make, have made, assemble, manufacture, develop, use, operate, market, lease, sell, offer for sale, distribute, import and service Licensed Products, and to practice or have practiced the Licensed Technology in connection with the Licensed Products in the Licensed Territory. Nothing herein shall be

construed as including the right to transfer, sublicense or assign the rights to any Person other than as permitted pursuant to Section 15.2 hereof.

ARTICLE 3
Disclosure of Licensed Technology

          3.1 Licensor’s Disclosure . Within thirty (30) days following the Effective Date, Licensor agrees to disclose to Licensee, at Licensor’s sole cost and expense, all existing Confidential Information pertaining to the Licensed Technology, including technical information which is owned or possessed by Licensor and which relates to the Licensed Technology, and relevant experimental, test and performance information owned by Licensor concerning such Licensed Technology or similar information.

          3.2 Subsequent Transfers . In addition to the disclosures contemplated by Section 3.1, for the purpose of imparting technical information regarding the Licensed Technology, Licensor agrees, for the duration of the License Period and at Licensor’s sole cost and expense to furnish Licensee with copies of all patent applications filed in the United States Patent and Trademark Office pertaining to the Licensed Patents.

          3.3 Reasonable Cooperation . Caltech and USC agree to cooperate reasonably with Licensee with its efforts to commercialize the technology covered by the Transaction Documents. Such cooperation shall include:

               3.3.1 The loan to Licensee from time to time of presently existing direct methanol fuel cell demonstration units, which will be maintained in working order for a minimum period of twenty-four (24) months, for the purpose of showing them to prospective financiers and strategic partners, such loans to be requested by Licensee on at least three (3) days’ notice subject to prior commitments, for loan duration not to exceed five (5) business days each and subject to Licensee’s obligation to indemnify Caltech and USC for any loss, damage or other claims arising out of Licensee’s handling or use of such units during the period of each such loan;

               3.3.2 Licensee visits from time to time the direct methanol fuel cell laboratories with Licensee’s prospective financiers and strategic partners – such visits to be made at times reasonably convenient to Caltech and USC on at least seven (7) days’ prior notice (with Licensee to provide names and companies of prospective visitors), to be attended by on or more knowledgeable scientists from the relevant laboratories for approximately one hour so that they may answer questions within the scope of this Agreement and the Transaction Documents, and to be subject to the execution of confidentiality agreements consistent with Article IV by each visitor in form and substance acceptable to Caltech and USC; and

               3.3.3 Reasonable access by a Licensee scientist or engineer to the key laboratory scientists involved in the technology covered by the Transaction Documents for purposes of effectively transferring the technology to Licensee, at times reasonably convenient to Caltech and USC, on at least seven (7) days’ notice, subject to the execution of confidentiality agreements by each such scientist or engineer in form and substance acceptable to Caltech and USC and subject to travel and other commitments of such scientists. Licensee shall pay the reasonable actual costs, if any, of making such person or persons available, however, that the cost charged to Licensee shall be applied as a credit against Licensee’s future royalty obligations to Caltech and USC.

ARTICLE 4
Restrictions on Disclosure and Use of Licensor
Confidential Information

          4.1 Licensee’s Obligations . Licensee agrees to treat as confidential, and will use only in the manner and for the purposes expressly permitted in this Agreement, all Confidential Information disclosed by or acquired from Licensor or Licensor Representatives. Licensee further covenants that, except as expressly permitted by this Agreement, it will not disclose Confidential Information to any Person, and will exercise every reasonable precaution to preclude the unauthorized disclosure and use of Confidential Information by Licensee Representatives. To the extent any software is included in the Confidential Information supplied by Licensor to Licensee, Licensee agrees that it shall not decompile, disassemble or reverse engineer such software except as permitted in writing by Licensor.

          4.2 Permitted Disclosures .

               4.2.1 General . Notwithstanding the provisions of Section 4.1, Licensee may disclose, to the extent reasonably necessary for purposes of this Agreement or Licensee’s activities not inconsistent herewith, Confidential Information to (a) Licensee Representatives, and (b) engineers, consultants, contractors, vendors, partners or co-venturers of Licensee involved in the financing, design, development, maintenance, modification and exploitation of the Licensed Products produced by Licensee or any successor of Licensee; provided that prior to any such disclosure under (b) above, Licensee shall require any such Person to execute a confidentiality agreement in the form of Schedule 4.2 or other form of confidentiality agreement reasonably acceptable to Licensor and such Person. Notwithstanding the foregoing, if due to an emergency or other event beyond the reasonable control of Licensee it is not practicable for Licensee to obtain the execution of such agreement prior to disclosure of Confidential Information, Licensee shall be permitted to disclose such Confidential Information as is reasonably necessary in the circumstances provided that as soon as reasonably practicable thereafter, Licensee secures the execution of such confidentiality agreement by such Person to whom Licensee has disclosed Confidential Information. Within ninety (90) days after the execution thereof, Licensee will provide Licensor a copy of each

confidentiality agreement which is executed by each such Person to whom Licensee has disclosed Confidential Information under this Section 4.2.1.

               4.2.2 Disclosures Required by Law . If, pursuant to valid and applicable Law, Licensee or any Licensee Representative is legally required to disclose Confidential Information, Licensee will provide Licensor with prompt written notice of such requirement, as soon as reasonably possible after Licensee becomes aware of such requirement, so that the Licensor may take whatever action it deems appropriate, including intervening in any proceeding, seeking a protective order or injunction, or other reliable assurance that confidential treatment will be afforded to Confidential Information. Licensee will reasonably cooperate with Licensor and its counsel (at no cost to Licensee) so as to enable Licensor to obtain a protective order or other reliable assurance that confidential treatment will be afforded to Confidential Information. If, after complying with the provisions of this Section 4.2.2, Licensee or Licensee Representative is nonetheless required to disclose Confidential Information, Licensee or Licensee Representative, as applicable, will only furnish that portion of the Confidential Information which is legally required to be so furnished, and Licensee shall notify the Licensor of the disclosure within five (5) business days after such disclosure, unless the Licensor was an intervenor or participant in the proceeding.

ARTICLE 5
Consideration

          5.1 Consideration to Licensor . In consideration for the grant of the licenses under this Agreement and under that certain Confidential License Agreement dated as of January 19, 2006 by and among USC, Caltech and Licensee (collectively the “ Licenses ”), Licensee shall issue to USC and Caltech in equal shares, a number of shares (the “ License Shares ”) of the Common Stock of DMFCC equal to the difference between (i) fifteen (15%) of the issued and outstanding shares of common stock determined on a fully diluted basis (as defined in the Technology Transfer and Subscription Agreement dated May 21, 2002) and (ii) 5,000 of the 8,000 shares delivered as consideration for the Option Agreement (the “ Shares ”). Licensee also agrees to pay royalties on the Licensed Technology as set forth herein and in the Confidential License Agreement.

          5.2 Royalties . Licensee shall pay royalties to Licensor and to DTI under this Agreement as follows for the grant of the License, and the consideration therefor:

               5.2.1 Royalty to DTI . Licensee shall pay to DTI royalty payments of ********** of the Gross Revenue for Royalty-based Licensed Products sold or leased by Licensee during the License Period. Such payments shall be made concurrently with the reports required pursuant to Section 6.2 and shall be directed to such account or address as may be directed by DTI in a notice pursuant to Section 15.7 sent to Caltech, USC and Licensee.

               5.2.2 Royalty to Licensor . Licensee shall pay to Licensor royalty payments of (i) ********** of the Gross Revenue for Royalty-based Licensed Products sold or leased by Licensee for use in non-utility vehicles; and (ii) ********** of the Gross Revenue for Royalty-based Licensed Products sold or leased by Licensee for use in any other application. Such payments shall be made concurrently with the reports required pursuant to Section 6.2 and shall be directed in equal shares to USC and Caltech at their respective addresses set forth in Section 15.8, or to such other account or address as may be directed by USC or Caltech, as the case may be, in a notice pursuant to Section 15.8 sent to Licensee.

               5.2.3 Royalty on Imported Products . With respect to Licensed Products that are imported or contain at least one material part that is imported (“Imported Licensed Products”), in lieu of the royalties set forth in Section 5.2.2, Licensee shall pay to Licensor patent royalty payments of (i) ********** of the Gross Revenue for Royalty-based Licensed Products sold or leased by Licensee for use in non-utility vehicles; and (ii) ********** of the Gross Revenue for Royalty-based Licensed Products sold or leased by Licensee for use in any other application. Such payments shall be made concurrently with the reports required pursuant to Section 6.2 and shall be directed in equal shares to USC and Caltech at their respective addresses set forth in Section 15.8, or to such other account or address as may be directed by USC or Caltech, as the case may be, in a notice pursuant to Section 15.8 sent to Licensee.

ARTICLE 6
Recordkeeping and Reports

          6.1 Recordkeeping . During the License Period, Licensee agrees to keep records of major activity undertaken under this Agreement as such activity relates to the Licensed Patents. The activities of Licensee which shall constitute “ major activity ” for purposes of this Section 6.1, and the scope of the reports to be provided by Licensee under Section 6.2, are as follows:

               6.1.1 Any action with regard to a Licensed Patent or related patent application.

               6.1.2 Material correspondence with current or prospective investors.

               6.1.3 The initial manufacture, distribution or sale of each Licensed Product.

               6.1.4 Any agreement with a third party related to the exercise of any have made rights provided herein.

               6.1.5 Such other information or activity as Licensor may, in its reasonable judgment, deem to be a major activity hereunder material to this Agreement.

          6.2 Reports . On or before the last day of February, May, August and November throughout the License Period, Licensee shall deliver an oral briefing to Licensor, telephonically or at the offices of Licensee, and shall also furnish Licensor with a written summary report for the preceding calendar quarter, specifying the information to be provided by Licensee pursuant to Section 6.1. On or before the twentieth day of each January, April, July and October after the Effective Date and after the first commercial production of Royalty-based Licensed Products by Licensee, Licensee shall render to Licensor and DTI a report in writing, setting forth the number of units of Royalty-based Licensed Products manufactured and the number of units sold and/or leased during the preceding calendar quarter by Licensee and its distributors, agents and related companies, separately identifying the Imported Licensed Products sold and/or leased and also setting forth all information necessary to determine the royalties payable under the Agreement, such report to be forwarded simultaneously with the royalty payment. The report shall be certified as true and accurate by an officer of Licensee.

          6.3 Recordkeeping for Royalty-based Licensed Products . Licensee shall keep records and books of account in respect of all Royalty-based Licensed Products made, sold and leased under the Agreement. DTI and Licensor shall have the right, upon reasonable advance notice and during business hours, to examine, or to have their designated auditors examine, such records and books of account, including without limitation invoices, purchase orders or other documentation acceptable to Licensor evidencing the number of Royalty-based Licensed Products imported and/or sold by Licensee, and Licensee shall keep the same for at least three (3) years after it pays DTI and/or Licensor the royalties due for such Royalty-based Licensed Products. Such examination may be conducted no more frequently than once each calendar year and shall be conducted in a manner not unreasonably disruptive of the research, development or operations of Licensee. The costs of such audit shall be reimbursed to DTI and/or Licensor by Licensee if the audit identifies a shortfall of five percent (5%) or more of royalties due hereunder for the period. Licensee shall also promptly pay such shortfall together with a late charge in the amount of one percent (1%) per month from the date due until the date paid.

ARTICLE 7
Licensee Improvements

          7.1 Disclosure to Licensor . During the License Period and subject to the terms and conditions of this Agreement, Licensee agrees to disclose to Licensor all Licensee Improvements. For the purpose of imparting technical information to Licensor regarding the Licensee Improvements, Licensee agrees at a frequency no less than once per calendar quarter:

               7.1.1 to advise Licensor of the development of any Licensee Improvements;

               7.1.2 to permit Licensor’s employees and/or any technical consultants who have signed a confidentiality agreement substantially in the form of Schedule 8.2 or other confidentiality agreement reasonably acceptable to Licensee and such third party, to make such inspections of the Licensee Improvements as are acceptable to Licensee, in Licensee’s sole discretion, at reasonable times and at Licensor’s expense;

               7.1.3 to furnish Licensor with copies of drawings and other available technical data relative to all raw materials and all equipment developed for or found particularly suitable for use in such Licensee Improvements; and

               7.1.4 to furnish Licensor with copies of papers, documents and correspondence filed in the United States Patent and Trademark Office and foreign patent offices pertaining to those Licensee Patents which cover any aspect of such Licensee Improvements.

          7.2 Visits to Licensee’s Facilities . Licensee and Licensor shall develop reasonable procedures for allowing third parties the right to visit Licensee’s facilities at reasonable times during operation provided that (i) Licensor provides reasonable advance notice of the timing of the visit and identity of the visitors; (ii) the visitors execute confidentiality agreements in the form of Schedule 8.2 or other confidentiality agreement required by Licensee; (iii) the visitors agree to adhere to Licensee’s safety rules while on Licensee’s premises; (iv) all such visitors shall be subject to the prior approval of Licensee, not to be unreasonably withheld; and (v) no such visit will interfere with the activities or operations of Licensee. In no event will Licensee be obligated to provide any Licensee Confidential Information to such visitors, including information concerning Licensee Improvements (other than Third Parties which satisfy the provisions of Section 7.1(f)); however, Licensee will provide general performance data (at Licensor’s expense) concerning the Licensed Technology and Licensed Patents.

ARTICLE 8
Restrictions on Disclosure and Use of Licensee
Confidential Information

          8.1 Licensor’s Obligations . Licensor agrees to treat as confidential and will use only in the manner and for the purposes expressly permitted in this Agreement, all Licensee Confidential Information disclosed by or acquired, directly or indirectly, by Licensor or any Licensor Representative from Licensee or Licensee Representatives. Licensor further covenants that, except as expressly permitted by this Agreement, it will not disclose Licensee Confidential Information to any Person and will exercise every reasonable precaution to preclude the unauthorized disclosure and use of Licensee Confidential Information by Licensor Representatives. To the extent any software is included in any Licensee Confidential Information, Licensor agrees that it

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will not decompile, disassemble or reverse engineer such software except as permitted in writing by Licensee.

          8.2 Permitted Disclosures .

               8.2.1 General . Notwithstanding the provisions of Section 8.1, Licensor may disclose, to the extent reasonably necessary for purposes of this Agreement or Licensor’s activities not inconsistent herewith, Licensee Confidential Information to Licensor Representatives, provided that, prior to any such disclosure, Licensor requires each such Person to execute a confidentiality agreement substantially in the form of Schedule 8.2 or other confidentiality agreement reasonably acceptable to Licensee and such Person. Notwithstanding the foregoing, if due to an emergency or other event beyond the reasonable control of Licensor it is not practicable for Licensor to obtain the execution of such agreement prior to disclosure of Licensee Confidential Information, Licensor shall be permitted to disclose such Licensee Confidential Information as is reasonably necessary in the circumstances provided that as soon as reasonably practical thereafter, Licensor secures the execution of such confidentiality agreement by any such Person to whom Licensor has disclosed Licensee Confidential Information. Within ninety (90) days after the execution thereof, Licensor shall provide Licensee a copy of each confidentiality agreement which is executed by each such Person to whom Licensor has disclosed Licensee Confidential Information pursuant to this Section 8.2.1.

               8.2.2 Disclosures Required by Law . If, pursuant to valid and applicable Law, Licensor or any Licensor Representative is legally required to disclose Licensee Confidential Information, Licensor will provide Licensee with prompt written notice of such requirement, as soon as reasonably possible after Licensor becomes aware of such requirement, so that the Licensee may take whatever action it deems appropriate, including intervening in any proceeding, seeking a protective order or injunction, or other reliable assurance that confidential treatment will be accorded to Licensee Confidential Information. Licensor will reasonably cooperate with Licensee and its counsel (at no cost to Licensee) so as to enable Licensee to obtain a protective order or other reliable assurance that confidential treatment will be accorded to Licensee Confidential Information. If, after complying with the provisions of this Section 8.2.2, Licensor or Licensor Representative is nonetheless required to disclose Licensee Confidential Information, Licensor or Licensor Representative, as applicable, will only furnish that portion of the Licensee Confidential Information which is legally required to be so furnished, and Licensor shall notify the Licensee of the disclosure within five (5) business days after such disclosure, unless the Licensee was an intervenor or participant in the proceeding.

                8.2.3 Issued Patents and Published Patent Applications . Notwithstanding anything to the contrary herein, Licensee may identify, to third parties having no obligations to preserve the confidentiality of information received from Licensee, that it is a licensee of patents or patent applications licensed herein once they are published, provided that the form and content of any such disclosure shall be subject to the prior written approval of Licensor.

ARTICLE 9
Representations and Warranties

          9.1 Of Licensor . Licensor represents and warrants to Licensee as follows:

               9.1.1 Licensor owns or has sufficient authority to convey the rights under the Licensor Rights free and clear of all Encumbrances and, except as set forth herein, the Licensor Rights are not subject to any exclusive licenses or other rights of use;

               9.1.2 All necessary action has been taken by Licensor to approve the execution and consummation of this Agreement;

               9.1.3 Licensor has all necessary power and authority to enter into and perform its obligations under this Agreement and has taken all necessary action in accordance with its organizational documents and has received any consents and approvals which are necessary to authorize the execution and consummation of this Agreement;

               9.1.4 Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated nor the fulfillment of or compliance with the terms and provisions hereof will (i) violate any Law, or (ii) conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, the organizational documents of Licensor, or any agreement or instrument to which Licensor is a party or by which it is bound;

               9.1.5 Licensor has the full right, power and authority to grant to Licensee the use of the Licensor Rights in accordance with the terms and provisions of this Agreement;

               9.1.6 To the best of Licensor’s knowledge, the Licensor Rights do not infringe on or violate any right of any third party;

               9.1.7 There is no action, suit, claim, proceeding or governmental investigation pending or, to the best of Licensor’s knowledge, threatened against Licensor with respect to the Licensor Rights; and

               9.1.8 To the best of Licensor’s knowledge, the Licensed Patents are valid and enforceable within the Licensed Territory.

          9.2 Of Licensee . Licensee represents and warrants to Licensor as follows:

               9.2.1 Licensee has all necessary corporate power and authority to enter into and perform its obligations under this Agreement and has taken all necessary corporate action under its organizational documents and has received any consents or approvals which are necessary to authorize the execution and consummation of this Agreement;

               9.2.2 Neither the execution nor the delivery of this Agreement, nor the consummation of the transactions herein contemplated nor the fulfillment of or compliance with the terms and provisions hereof will (i) violate any Law, or (ii) conflict with or result in a breach of any of the terms, conditions or provisions of, or constitute a default under, the organizational documents of Licensee, or any agreement or instrument to which Licensee is a party or by which it is bound;

               9.2.3 All necessary government approvals have been obtained, and all government filings have been made, as necessary for the Licensee to enter into this Agreement and to perform in accordance with its terms;

               9.2.4 Licensee shall mark all Licensed Products with applicable patent numbers, as instructed by Licensor;

               9.2.5 Licensee shall not be majority-owned or controlled by an existing manufacturing company or its Affiliate for a period of three (3) years from the Effective Date; and

               9.2.6 Licensee is, as of the Effective Date, funded by one or more angel investors and/or venture capital groups and/or Caltech and/or USC themselves, and is capitalized in the amount of Two Million Five Hundred Thousand Dollars ($2,500,000.00), and is owned by such investors, and/or jointly with Caltech and/or USC and/or key employees of DMFCC.

               9.2.7 Licensee shall use it best efforts to develop the Licensed Products and practice the Licensed Technology in connection with the Licensed Products, promote the sale of Licensed Products and enhance the reputation and goodwill associated with the Licensed Products.

ARTICLE 10
Disclaimers

          10.1 General . Nothing in this Agreement is or shall be construed as:

               10.1.1 an obligation of either Party to bring or prosecute actions or suits against third parties for infringement, except to the extent and under the circumstances described in this Agreement; or

               10.1.2 a grant by implication, estoppel or otherwise of any licenses under patent applications or patents of Licensor, Licensee or other Persons other than as provided in this License Agreement.

          10.2 Warranty Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER LICENSOR, IN RESPECT OF LICENSOR RIGHTS, NOR LICENSEE, IN RESPECT OF LICENSEE IMPROVEMENTS OR LICENSEE CONFIDENTIAL INFORMATION, MAKES ANY REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

          10.3 Disclaimer of Consequential Damage Liability; Limitation of Liability . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE RESPONSIBLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST GOODWILL, LOST PROFITS, LOST BUSINESS OR OTHER INDIRECT ECONOMIC DAMAGES, WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT (INCLUDING STRICT LIABILITY) OR OTHER LEGAL THEORY, AS A RESULT OF A BREACH OF ANY WARRANTY OR ANY OTHER TERM OF THIS AGREEMENT, AND REGARDLESS OF WHETHER A PARTY WAS ADVISED OR HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

ARTICLE 11
Indemnification and Insurance

          11.1 Indemnification by Licensee . Licensee agrees to indemnify, hold harmless and defend Licensor and Licensor Representatives (collectively, the “ Licensor Indemnified Parties ”) from, against, and with respect to any Claims arising out of (a) the breach of any representation, warranty or covenant of Licensee under this Agreement, (b) the production of any Licensed Product and (c) the combination of Licensed Technology with any other technology, product, component or good. In the event of any such Claim, Licensee shall defend the Licensor Indemnified Parties in question at Licensee’s sole

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expense by counsel selected by Licensee, subject to approval by Licensor, which approval is not to be unreasonably withheld or delayed. The settlement of a Claim which is the subject of the foregoing indemnification and which involves more than the payment by Licensee of monetary damages, shall require Licensor’s prior approval; provided that if Licensor does not approve any such settlement and, after Licensee’s reasonable diligence in defending such Claim, the amount of the final judgment or award exceeds the amount of the settlement proposed by Licensee and disapproved by Licensor, then Licensor shall be responsible to pay any such excess amount, plus Licensee’s reasonable costs and expenses of litigation (including reasonable attorneys’ fees). In addition, Licensor Indemnified Parties shall have the right to hire counsel, at their sole expense, who shall cooperate with Licensee’s counsel in the defense of any Claim indemnified under this Section 11.1; provided that if Licensor reasonably determines there are Claims or defenses available to Licensor Indemnified Parties which are not otherwise available to Licensee or if a conflict of interest exists between Licensee and Licensor Indemnified Parties, or if Licensee fails to diligently prosecute any such Claim with competent counsel, then Licensor Indemnified Parties shall be entitled to separate representation by counsel of their choosing, and the cost thereof shall be borne by Licensee. The settlement of any Claim which is the subject of the foregoing indemnification and which involves more than the payment by Licensee of monetary damages shall require Licensor’s prior approval; provided that if Licensor does not approve any such settlement and, after Licensee’s reasonable diligence in defending such Claim, the amount of the final judgment or award exceeds the amount of the settlement proposed by Licensee and disapproved by Licensor, then Licensor shall be responsible to pay any such excess amount, plus Licensee’s reasonable costs and expenses of litigation (including reasonable attorneys’ fees).

          11.2 Indemnification by Licensor . Licensor agrees to indemnify, hold harmless and defend Licensee and Licensee Representatives (collectively, the “ Licensee Indemnified Parties ”) from, against and with respect to any Claim arising out of the breach of any representation, warranty or covenant of Licensor under this Agreement, and for any Claims that the Licensor Rights or Licensee’s use of the Licensor Rights infringe or violate any patents, copyrights, trademarks or trade secrets or other intellectual property rights of any Person. In the event of any such Claim, Licensor shall defend the Licensee Indemnified Party or Parties in question at Licensor’s sole expense by counsel selected by Licensor, subject to reasonable approval by Licensee, which approval is not to be unreasonably withheld or delayed. In addition, Licensee Indemnified Parties shall have the right to hire counsel, at their sole expense, who shall cooperate with Licensor’s counsel in the defense of any Claim indemnified under this Section 11.2; provided that if Licensee reasonably determines there are Claims or defenses available to Licensee Indemnified Parties which are not otherwise available to Licensor or if a conflict of interest exists between Licensor and Licensee Indemnified Parties, or if Licensor fails to diligently prosecute any such Claim with competent counsel, then Licensee Indemnified Parties shall be entitled to separate representation by counsel of their choosing, and the cost thereof shall be borne by Licensor. The settlement

of any Claim which is the subject of the foregoing indemnification and which involves more than the payment by Licensor of monetary damages shall require Licensee’s prior approval; provided that if Licensee does not approve any such settlement and, after Licensor’s reasonable diligence in defending such Claim, the amount of the final judgment or award exceeds the amount of the settlement proposed by Licensor and disapproved by Licensee, then Licensee shall be responsible to pay any such excess amount, plus Licensor’s reasonable costs and expenses of litigation (including reasonable attorneys’ fees).

          11.3 Indemnification of DTI . DTI shall not have any liability to Caltech, USC or Licensee, or to any purchasers or users of Licensed Products made or sold by Licensee, for any claims, demands, losses, costs or damages suffered by Licensee or any purchasers or users of such Licensed Products, or any other party, which may result from personal injury, death or property damage related to the manufacture, use, or sale of such Licensed Products (“ DTI Indemnifiable Claims ”). Licensee shall defend, indemnify, and hold harmless DTI, and the directors, officers, agents, and employees of DTI from any such DTI Indemnifiable Claims, provided that (i) Licensee is notified promptly of any DTI Indemnifiable Claims, (ii) Licensee has the sole right to control and defend or settle any litigation within the scope of this indemnity, and (iii) all indemnified parties cooperate to the extent necessary in the defense of any DTI Indemnifiable Claims.

          11.4 Insurance . At such time as the Licensee (“ Insured Party ”) begins to sell or distribute Licensed Products (other than for testing or demonstration in non-motive form or for the purpose of obtaining regulatory approvals), such Insured Party so selling or distributing Licensed Products shall at its sole expense, procure and maintain policies of comprehensive general liability insurance with commercially reasonable limits of coverage. Such comprehensive general liability insurance shall provide (i) product liability coverage and (ii) broad form contractual liability coverage for the Insured Party’s indemnification under Section 11.3. In the event the aforesaid product liability coverage does not provide for occurrence liability, the Insured Party shall maintain such comprehensive general liability insurance for a reasonable period of not less than five (5) years after it has ceased commercial distribution or use of any Licensed Product. The Insured Party shall provide Licensor and DTI with written evidence of such insurance upon the request of Licensor or DTI. In addition, Licensee, at its own expense, shall obtain and maintain for the term of this Agreement, property damage and liability insurance or self-insurance against injury or death to persons and loss or damage to property including loss by fire (including so-called “ extended coverage ”), theft, destruction, public liability risks, and such other risks customarily insured against by businesses in which Licensee is engaged and shall designate Licensor as an “additional insured” on all such policies.

ARTICLE 12
Prosecution and Maintenance of Patent Rights

          12.1 Responsibility of Licensor . Subject to those patent expenses which are the responsibility of DTI under the DTI License, Licensor will take all actions to maintain the Licensed Patents during the life of such patents and shall have full control over prosecution and maintenance of such patent applications and patents encompassed within the Licensor Rights.

          12.2 Patent Expenses . From and after the Effective Date, Licensee will pay within thirty (30) days of invoice by Licensor one-half of all patent expenses accruing after the Effective Date which are the responsibility of DTI under the DTI License. If DTI directly, indirectly or effectively grants sublicenses or similar rights under any of the Licensed Patents to third parties other than Ballard Power Systems, Inc., a corporation existing under the laws of Canada, Licensee’s share of such patent expenses will be reduced on a pro-rata basis. For example, if DTI grants one additional sublicense, Licensee will be responsible for one-third of all such patent expenses. Solely with respect to the calculation of royalty payments due Licensor pursuant to Section 5.2 above, all reasonable attorneys’ fees and expenses paid by Licensee under this Section 12.2 shall be included in Licensee’s Deductible Expenses.

          12.3 Prosecution of Infringements by Third Persons .

               12.3.1 In the event Licensee becomes aware of any actual or threatened infringement of any Licensor Rights, Licensee shall promptly notify Licensor and the parties shall discuss the most appropriate course of action to be taken. Subject to Licensor’s obligations under Section 11.2, the parties shall use commercially reasonable efforts in cooperating with each other to terminate such infringement without litigation. Subject to any applicable statutes of limitations, if within sixty (60) days after the date of such notification of infringement, attempts to abate such infringement are unsuccessful, then Licensor may, but is not obligated to, file suit. Licensee shall cooperate with Licensor’s reasonable requests related to prosecution of infringements at the expense of or reimbursement by Licensee. If Licensor elects not file suit, Licensee may request that Licensor file suit provided that Licensee pays all costs and expenses of such litigation, and accepts in writing all liability arising therefrom (including without limitation from any counterclaim(s), cross claim(s) or other c