EXHIBIT 10.147
JOINT MARKETING AGREEMENT
This
Agreement, made and entered into as of this 15th day of
January,
2006, by and between Laseroptronix AB, a foreign corporation
("Laseroptronix"),
whose principal address is Enhagsslingan 23, 187 34 Taby, Sweden;
and HiEnergy
Technologies, Inc., a Delaware corporation ("HiEnergy"), whose
principal address
is 1601B Alton Parkway, Irvine, California 92606.
WHEREAS,
Laseroptronix designs, manufactures and markets the products
listed in Exhibit A, and related software, documentation, and key
services;
WHEREAS,
HiEnergy has developed, manufactures and markets the products
listed in Exhibit A, and related software, documentation and key
services; and
WHEREAS,
Laseroptronix and HiEnergy desire to jointly market a proposed
product offering consisting of a combination of Laseroptronix and
HiEnergy
products for sales to prospective customers in the United States
and in Sweden
and have decided that it is in their mutual and respective best
interests to
enter into a program intended to promote sales under this
Agreement.
NOW
THEREFORE, in consideration of the mutual covenants contained
herein
Laseroptronix and HiEnergy enter into this Agreement in order to
provide for the
initial phase of joint marketing activities for the proposed joint
product
offering.
1. Definitions. As used herein, the following words or phrases have
the
following meanings:
1.1 "Laseroptronix Products" shall mean those specified in Exhibit
A and related
software, documentation, and key services.
1.2 "Laseroptronix Property" means any and all Intellectual
Property owned by
Laseroptronix as of the Effective Date or developed thereafter
solely by or on
behalf of Laseroptronix, and expressly excludes any HiEnergy
Property.
1.3 "Effective Date" means January 14, 2006.
1.4 "Hereof," "herein, and "hereunder" when used in this Agreement
shall refer
to the Agreement as a whole, unless the context otherwise
requires.
1.5 "HiEnergy Products" shall mean those specified in Exhibit A and
related
software, documentation, and key services;
1.6 "HiEnergy Property" means any and all Intellectual Property
owned by
HiEnergy as of the Effective Date or developed thereafter solely by
or on behalf
of HiEnergy, and expressly excludes any Laseroptronix Property.
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1.7 "Intellectual Property" means any and all inventions,
improvements,
enhancements, methods, designs, know-how, trade secrets, software,
hardware,
circuits, products, documentation, mask works, layouts, ornamental
designs,
trademarks, service marks, trade dress, company names, brand names,
logos, and
fictitious names, together with any and all worldwide vested and/or
inchoate
rights in and to any or all of the foregoing under any issued,
pending and/or
later filed applications for patent or copyright registration,
trademark and/or
service mark registration, utility models and/or any other form of
protection of
various forms of intellectual and/or industrial property recognized
anywhere in
the world including any and all rights of domestic and/or foreign
priority, the
right to sue and recover damages for infringements including,
without
limitation, any past infringements.
1.8 "Product" or "Products" shall mean any combination of the
Laseroptronix and
HiEnergy Products, developed in accordance with this Agreement.
1.9 "Project" means a mutual effort by the parties to promote,
sell, deliver,
and support a combination of the Laseroptronix Product and the
HiEnergy Product,
and/or improvement to any Product and/or components thereof,
whether hardware,
software, electronic, mechanical or otherwise.
1.10 "Proprietary Information" means proprietary rights in, and to,
all computer
programs, source code, algorithms, software routines, microcode and
other
similar data pertaining to Laseroptronix Products, the HiEnergy
Products, or the
Product, as the case may be.
1.11 "Specifications" means the criteria for and description of the
Product set
forth on Exhibit A hereto.
1.12 "Term" means the period from the Effective Date through the
Termination
Date.
1.13 "Termination Date" means any date upon which this Agreement
shall terminate
in accordance with the terms hereof, or one (1) year from the
Effective Date,
whichever is earlier.
2. Scope of Agreement
2.1 Laseroptronix shall:
2.1.1
Provide exclusive license for resale of Laseroptronix Product in
the
United States to HiEnergy under mutually acceptable terms;
2.1.2 Give
reasonable cooperation to the Project and HiEnergy in terms of
advertising, media and press relations, trade expositions and
shows,
and dealer and distributor support;
2.1.3 Make
management, marketing and technical personnel available to
assist the Project and HiEnergy to resolve issues and achieve
joint
and respective sales goals;
2.1.4
Provide training, technical data and product documentation to
the
Project and HiEnergy, where training, technical data and
product
documentation is reasonably required to achieve joint and
respective
sales goals, but such provision shall be under mutually
acceptable
terms;
2.1.5 Make
available after-sale support to the Project and HiEnergy
including
maintenance, software support and spare parts, technical
data and product documentation, under mutually acceptable terms;
and
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2.1.6
Perform design enhancements, modifications, or improvements of
Laseroptronix Product when required by the Project in the joint
determination of the parties, under mutually acceptable terms.
2.2 HiEnergy shall:
2.2.1
Provide exclusive license for resale of HiEnergy Product in
Sweden
to Laseroptronix under mutually acceptable terms;
2.2.2 Give
reasonable cooperation to the Project and Laseroptronix in
terms of advertising, media and press relations, trade
expositions
and shows, and dealer and distributor support;
2.2.3 Make
management, marketing and technical personnel available to
assist the Project and Laseroptronix to resolve issues and
achieve
joint and respective sales goals;
2.2.4
Provide training, technical data and product documentation to
the
Project and Laseroptronix, where training, technical data and
product documentation is reasonably required to achieve joint
and
respective sales goals, but such provision shall be under
mutually
acceptable terms;
2.2.5 Make
available after-sale support to the Project and Laseroptronix
including maintenance, software support and spare parts,
technical
data and product documentation, under mutually acceptable
terms;
2.2.6
Perform design enhancements, modifications, or improvements of
HiEnergy Product when required by the Project in the joint
determination of the parties, under mutually acceptable terms.
3. Pricing and Terms of Sales. The parties agree to negotiate in
good faith and
to reach agreement on the following matters within 15 days after
the Effective
Date: the initial List Prices for the Product, the discounts that
will be
available to the various sales channels, the other terms and
conditions of the
sales of the Product to third parties, and the terms, conditions
and pricing
under which Laseroptronix will act as reseller of the HiEnergy
Product and
HiEnergy will act as a reseller of the Laseroptronix. HiEnergy and
Laseroptronix
agree to cooperate in the future to establish different List Prices
and
discounts as needed to address cost changes or market
conditions.
4 Restrictions on Product Use, Trademarks, Trade Names and
Publicity. All use by
a party of the other's product is restricted as follows:
4.1 Either party is strictly prohibited from reverse engineering,
reverse
compilation, or reverse assembly of the other's product;
4.2 Either party is strictly prohibited from making a copy or
copies of the
other's product;
4.3 Either party is strictly prohibited from sublicensing or
otherwise
transferring the other's product;
4.4. Either party shall not use the trademarks or trade names of
the other; and
4.5 Either party shall not publicize this Agreement without the
consent of the
other party.
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5 Compliance With Laws and Business Practices.
5.1 It is expressly understood and agreed that this Agreement, and
any exports,
sales, transfers, or any other disposition of Laseroptronix
Products or HiEnergy
Products, to the extent incorporated in the Product, are subject to
the laws and
regulations of Sweden and the United States, respectively.
Specifically,
contracts and orders placed for the Product may require advance
Government
Export approval or licensing, and, therefore all such contracts and
orders are
subject to the receipt of any necessary approvals and licenses. The
parties
hereto agree to solicit orders from each, and the manufacturer
agrees to process
and ship orders, in accordance with all applicable laws and
regulations. During
the term of this Agreement, and thereafter, any Products purchased
by or
provided by the parties to the other hereunder, including any
technical data or
documentation pertaining thereto, shall not be sold, leased,
released, assigned,
transferred, conveyed or in any manner disposed of, either directly
or
indirectly, in any manner that violates applicable laws.
5.2 Laseroptronix and HiEnergy agree to comply in all respects with
the U.S.
Foreign Corrupt Practices Act of 1977 (FCPA), as amended, which
provides
generally that: under no circumstances will foreign officials,
representatives,
political parties or holders of public offices be offered, promised
or paid any
money, remuneration, things of value, or provided any other
benefit, direct or
indirect, in connection with obtaining or maintaining contracts or
orders
hereunder. When representatives or other individuals or
organizations associated
with the parties are required to perform any obligations related to
or in
connection with this Agreement the substance of this provision
shall be
flowed-down and included in any agreement between with any such
representatives.
The failure of the parties to comply in all respects with the
provisions of the
FCPA shall constitute a material breach by the offending party of
its
obligations hereunder; and, shall entitle the other to terminate
the Agreement
immediately.
5.3 Each party agrees to use its best efforts to obtain all
necessary Government
approvals or licenses for export of the Products hereunder.
6. Customer
Support
6.1 Initial Contact. HiEnergy shall be the initial point of contact
for customer
support of the Product and shall establish and maintain support
facilities
sufficient to provide primary support for the Product. Primary
support requires
that HiEnergy provide all necessary resources to provide initial
diagnosis of
both hardware and software problems and providing reasonable
assistance to
purchasers to resolve problems with the Product.
6.2 Maintenance. Following receipt of support requests from a
customer and an
assessment by HiEnergy of the customer's additional support
requirements, if it
is determined that the customer requires maintenance services,
Laseroptronix
shall provide such maintenance for Laseroptronix Products and
HiEnergy shall
provide such maintenance in all other instances. Each party hereto
agre
