IDT, INC.
2275 Swallow Hill Road - Building 2500
Pittsburgh, PA 15220
(412) 279-8715 Fax (412) 279-1367
July 22, 1998
Mr. Marc Clupper
Javelin Technologies, Inc.
30 Cadillac Court, Apt. 4C
Lafayette, IN 47905
Dear Marc:
I would like to extend our Design and Engineering Agreement with Javelin
Technologies, Inc., until the completion of the ThermoChem-HT-TM- . The
financial terms will be negotiated upon the availability of funds in IDT, Inc.
IDT, Inc. will compensate all travel between Pennsylvania and Indiana.
In addition, 80,000 Warrant Shares of IDT, Inc. at $.10 per share will be issued
upon completion of the ThermoChem-HT-TM-. IDT, Inc. will provide continued
support for the project as needed.
This agreement supersedes the previous agreement dated April 16, 1998.
I look forward to our continued work together. If you have anything with which
to discuss with me, please contact me.
Sincerely,
IDT, INC.
Glenn Keeling
President
Accepted by:
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Marc Clupper Date
DESIGN AND ENGINEERING AGREEMENT
BETWEEN
IDT, INCORPORATED
AND JAVELIN TECHNOLOGIES, INCORPORATED
1. INTRODUCTION
This is an agreement for Javelin Technologies, Inc. to develop engineering
software and documentation for IDT, Inc. in accordance with an agreed-upon
Letter of Agreement (See Attached).
2. DEFINITIONS
As used in this Agreement, the following definitions shall apply:
1. "Agreement" shall mean this Contract Agreement between Customer and
Developer.
2. "Customer" shall mean IDT, Incorporated of Pittsburgh, Pennsylvania.
3. "Commonly Used Code" shall include computer code, techniques,
functions, routines, and subroutines that are common in the computer
industry and computer programming methods in common use, whether or
not created for use in the Software.
4. "Confidential Information" shall mean any information relating to or
disclosed in the course of the Agreement, which is or should be
reasonably understood to be confidential or proprietary to the
disclosing party. "Confidential Information" shall not include
information (a) already lawfully known to the receiving party, (b)
disclosed in published materials, (c) generally known to the public,
or (d) lawfully obtained from any third party.
5. "Deliverables" shall mean all services that are offered and supplied
to the Customer by the developer under terms of this Agreement.
6. "Developer" shall mean Javelin Technologies, Incorporated of Wabash,
Indiana, and G. Marc Clupper, jointly and separately.
7. "Effective Date" shall mean no later than 15 January, 1998. The date
upon which this Agreement is executed by Developer.
8. "Software" shall mean all computer software developed by Developer for
Customer use throughout execution of this Agreement.
9. "Specifications" shall mean requirements for the Software's required
operation, functions, capabilities and performance and the
documentation to be retained therewith or as revised by the parties
under procedures set forth in this Agreement.
3. TERMS OF AGREEMENT
1. No later than the Effective Date, Developer shall provide one (1)
programmer to begin work for Customer to develop software at the site
of Customer.
2. Developer shall supply such resources, such as development equipment
and software, and efforts such as shall be reasonably necessary to
accomplish the tasks set forth by Customer.
3. Customer shall reimburse Developer expenses incurred during
customer-required trips for business pertaining to Customer.
4. RESOURCES TO BE PROVIDED TO DEVELOPER
Customer shall supply to Developer all information and resources that
Developer shall reasonably require in order to carry out the work required by
this Agreement.
5. CONFIDENTIALITY
1. Each party acknowledges that it will receive Confidential Information
of the other party relating to technical, marketing, product, and/or
business affairs. Each party agrees that all Confidential Information
of the other party shall be held in strict confidence and shall not be
disclosed or used without express written consent of the other party,
except as may be required by law.
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2. Developer is required to have all employees sign confidentiality
agreements, in a form reasonably satisfactory to Customer, which
include a promise to maintain confidentiality as required by this
Agreement. Developer shall provide to Customer, upon request, a list
of all employees who work on the Software and a copy of a current
confidentiality agreement between each employee and Developer.
6. PAYMENT
1. Customer shall pay Developer a fixed fee for services provided upon
the execution of this Agreement at the rate of Seven Thousand Five
Hundred Dollars ($7,500.00) per month. Payments of Three Thousand
Seven Hundred and Fifty Dollars ($3,750.00) shall be made bimonthly by
the customer to the developer on the 15th and last day of each month.
2. Customer shall provide Developer for services rendered a total of
thirty thousand (30,000) warrants for IDT, Inc. common stock at a
guaranteed conversion price of one dollar ($1.00) per share. Payment
shall be made in full within 30 days of the completion of the
ThermoChem-HT pre-production delivery/completion date.
3. If any payment is not made as required, Developer may give notice of
the failure to pay. The failure to pay, if not cured within fifteen
(15) days after notice, shall entitle Developer to terminate this
Agreement in accordance with the provisions on Termination.
7. INTELLECTUAL PROPERTY
1. Customer shall have and Developer shall be deemed to have irrevocably
assigned to Customer all rights, titles, and interest, throughout the
world, in all copyrights, trade secrets, patentable materials, and all
other proprietary rights in the Software.
2. The Developer shall execute such documents as Customer shall
reasonably require to evidence and confirm the transfer of rights made
under the Agreement.
3. Customer may register the copyright to the Software and any derivative
work in any and all countries and jurisdictions, place its copyright
notice on the Software, and take such further steps as it deems fit
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to provide legal protection to intellectual property relating to the
Software.
4. Notwithstanding any other provisions of this Agreement, Developer
shall retain the right to utilize all Commonly Used Code in Software
developed for others or for its own use.
8. DEVELOPMENT CREDIT
Customer shall acknowledge Developer as the programmer. Such development
credit shall not give Developer any trademark, copyright, or other proprietary
interest or rights in the Software.
9. DISCLAIMER OF WARRANTIES
Developer and Customer agree that due to the nature of complex computer
Software such as the Software, Developer cannot warrant that the Software will
be completely free of all defects and errors. Accordingly, the Software is
transferred and delivered to Customer "AS IS." EXCEPT AS PROVIDED BELOW IN THE
PROVISION ENTITLED INTELLECTUAL PROPERTY WARRANTY, ALL WARRANTIES EXPRESS OR
IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY. FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT, ARE DISCLAIMED.
10. INTELLECTUAL PROPERTY WARRANTY
Developer represents and warrants that it has no knowledge of any right,
title, and interest in the Software other than its own, and that it has granted
no license or ownership interest. Developer represents and warrants that it
knows of no fact or circumstance indicating that commercial use and sale of the
Software will infringe any rights existing under the laws United States or any
state thereof of any other person or entity.
11. TERM AND TERMINATION
1. The term of this Agreement shall commence on the Effective Date and
shall continue for a period of three (3) months, unless sooner
terminated in accordance with the provisions set forth in this
Agreement.
2. Either party may terminate this Agreement:
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A. In accordance with provisions stated in this Agreement that
provide for termination,
B. In the event that the other party ceases business operations or
is in any bankruptcy or state insolvency or receivership
proceeding not dismissed in thirty (30) days or assigns its
assets for the benefit of creditors, or
C. In the event of any material breach by the other party which is
not cured within thirty (30) days after notice.
3. Customer may terminate this Agreement at any time on thirty (30) days
notice for any cause or no cause. In the event of such a termination,
Customer shall pay the reasonable cost of Developer's services to the
date of receipt of notice of termination.
12. EFFECT OF TERMINATION
Upon any termination of this Agreement by any party:
1. All provisions of the section of this agreement entitled
Confidentiality shall remain in effect.
2. Customer shall promptly return all objects and materials owned by or
the responsibility of Developer.
13. REMEDIES
1. Except as is otherwise provided in this Agreement, the parties shall
have such remedies for breach or termination as are provided by
applicable law.
2. The parties agree that in the case of the breach of any provision of
the section of this agreement entitled Confidentiality, the aggrieved
party will suffer immediate and irreparable harm, and that immediate
injunctive relief will therefore be appropriate.
14. ARBITRATION
Any dispute relating to the terms, interpretation or performance of this
Agreement (other than claims for preliminary injunctive relief or other
pre-judgment remedies) shall be
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resolved at the request of either party through binding arbitration. Arbitration
shall be conducted in Lafayette, Indiana under the rules and procedures of the
American Arbitration Association ("AAA") . The parties shall request that the
AAA appoint a panel of three arbitrators and, if feasible, include one
arbitrator of the three who shall possess knowledge of computer software and its
distribution; however the arbitration shall proceed even if such a person is
unavailable.
15. ATTORNEYS' FEES
In the event of any litigation or arbitration between the parties arising
under this Agreement, the prevailing party shall be entitled to recover, in
addition to any other relief awarded, its reasonable costs and expenses,
including attorneys' fees, incurred in the proceeding.
16. RENEWAL
This Agreement is renewable and re-negotiable by Customer and Developer by
mutual agreement at any time during or after the Term of this Agreement.
17. GENERAL PROVISIONS
1. RELATIONSHIP OF PARTIES. Developer shall be deemed to have the status
of an independent contractor, and nothing in this Agreement shall be
deemed to place the parties in the relationship of employer-employee,
principal-agent, partners or joint ventures. Developer is responsible
for all payments to its subcontractors, and guarantees their
observance of their confidentiality requirements referred to herein.
2. PAYMENT OF TAXES, Developer shall be responsible for any withholding
taxes, payroll taxes, disability insurance payments unemployment taxes
and other taxes or charges incurred in the performance of the
Agreement.
3. FORCE MAJEURE. Neither party shall be deemed in default of this
Agreement to the extent that performance of their obligations or
attempts to cure any breach are delayed or prevented by reason of any
act of God, fire, nature disaster, accident, act of government,
shortages of materials or supplies, Or any other cause beyond the
control of such party ("Force Majeure") provided that such party gives
the other
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party written notice thereof promptly and, in any event, within
fifteen (15) days of discovery thereof and uses its best efforts to
cure the delay. in the event of such a Force Majeure, the time for
performance or cure shall be extended for a period equal to the
duration of the Force Majeure but not in excess of six (6) months.
4. ASSIGNMENTS. This Agreement may not be assigned by Customer in whole
or in part without consent of Developer which consent shall not be
unreasonably withheld. Customer may assign this Agreement, without
Developer's consent, to any third party which succeeds by operation of
law to, purchases, or otherwise acquires substantially all of the
assets of Customer and assumes Customer's obligations hereunder.
Notwithstanding the above, Customer shall retain the obligation to pay
if the assignee fails to pay as required by the payment obligations of
this Agreement. Developer may not assign its obligations under this
agreement without Customer's written consent, which Customer may
withhold in its complete discretion.
5. PARTIAL INVALIDITY. Should any provision of this Agreement be held to
be void, invalid, or inoperative, the remaining provisions of this
Agreement shall not be affected and shall continue in effect as though
such provisions were deleted.
6. NO WAIVER. The failure of either party to exercise any right or the
waiver by either party of any breach, shall not prevent a subsequent
exercise of such right or be deemed a waiver Of any subsequent breach
of the same or any other term of the Agreement.
7. NOTICE. Any notice required or permitted to be sent hereunder shall
be in writing and shall be sent in a manner requiring a signed
receipt, such as Federal Express, courier delivery, or if mailed,
registered or certified mail, return receipt requested. Notice is
effective upon receipt. Notice to Customer shall be addressed to
Glenn Keeling, President, 2275 Swallow Hill Road, Building 2500,
Pittsburgh, PA 15220 or such other person or address as Manufacturer
may designate. Notice to Developer shall be addressed to G. Marc
Clupper, President, 1373 Mill Street, Wabash, TN 46992 or such other
person or address as Dealer may designate.
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8. ENTIRE AGREEMENT. This Agreement, including the Schedules thereto,
states the entire agreement between the parties on this subject and
supersedes all prior negotiations, understandings, and agreements
between the parties concerning the subject matter. No amendment or
modification of this Agreement shall be made except by a written
document signed by both parties.
9. GOVERNING LAW. This Agreement shall be governed and interpreted in
accordance with the substantive law of the State of Indiana.
10. VENUE AND JURISDICTION OF LEGAL ACTIONS. Any legal action brought
concerning this Agreement or any dispute hereunder, including but not
limited to an action to enforce an. arbitration award, shall be
brought only in the courts of the state of Indiana in the county of
Marion or in the federal courts located in such state and county, and
both parties agree to submit to the jurisdiction of these courts.
IN WITNESS WHEREOF, IDT, incorporated and Javelin Technologies,
Incorporated and G. Marc Clupper have executed this Agreement.
IDT, Incorporated
By:
-----------------------------
Glenn Keeling, President
Javelin Technologies, Incorporated
By:
-----------------------------
G. Marc Clupper, President
WITNESS:
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