MANUFACTURING AGREEMENT
This Agreement ("Agreement") is made as of the 22nd day of November, 2006,
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by and between INTEGRAL TECHNOLOGIES, INC., a Nevada corporation (hereinafter
called "Integral") with offices at 805 West Orchard Street, #7, Bellingham,
Washington 98225, and JASPER RUBBER PRODUCTS, INC., an Indiana corporation with
offices at 1010 First Avenue, Jasper, Indiana 47546 ("Jasper").
RECITALS:
WHEREAS, Integral desires to contract for the manufacture of resin based
conductive, moldable capsules incorporating the ElectriPlast technology; and
WHEREAS, Jasper desires to provide such manufacturing on and subject to the
terms of this Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual undertakings hereinafter set
forth and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement the following terms shall have
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the respective meanings set forth below:
"Developed Products" means Products with definitive Product Specifications
suitable to the requirements of Integral or Integral's customer(s), as
applicable.
"Integral's Intellectual Property" means the intellectual property rights
owned or purposed to be owned by Integral, including without limitation the
patents, provisional patents, utility patent applications and respective
divisions, continuations, continuations-in-part, reissues and re-examinations
thereof pertaining to the ElectriPlast technology.
"Integral Raw Materials" means the applicable raw materials, including
without limitation micron conductive fiber, to be delivered to Jasper by
Integral and used in the manufacture of the Products.
"Jasper Raw Materials" means the applicable raw materials, including
without limitation the applicable polymer resins, to be procured by Jasper and
used in the manufacture of the Products.
"Orders" means a written order or similar writing issued by Integral
containing information with respect to each purchase of Developed Product under
this Agreement.
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"Products" means resin-based conductive, moldable capsules incorporating
Integral's Intellectual Property, and includes Developed Products and Test-Run
Products.
"Product Specifications" means, for each applicable Product, the
specifications therefor designated in accordance with the terms of this
Agreement, including without limitation the specifications for the Jasper Raw
Materials and Integral Raw Materials to be used in the manufacture of the
respective Product and Product packaging requirements.
"Test-Run Products" shall mean Products in initial development to determine
proper and appropriate Product Specifications suitable to Integral and
Integral's customers.
2. PRODUCTS DEVELOPMENT AND MANUFACTURE, SALE.
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2.1. Manufacture by Jasper after Development and Test-Runs, if any.
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During the Primary Term and any extension thereof, and provided
that Jasper has the requisite facilities, equipment and available
capacity and accepts Integral's respective order therefor, Jasper
shall manufacture Integral's requirements of Developed Products
to be used by Integral or sold by Integral to third parties.
2.2. Coordination of Manufacturing Scheduling, Raw Materials. Not
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later than five (5) business days after the beginning of each
calendar quarter during the term of this Agreement, Integral will
provide Jasper a non-binding forecast of the estimated number of
Products to be manufactured for the quarter immediately following
the current quarter ("Forecast"). The Forecast will include the
estimated quantity of Product units that will be ordered in the
relevant quarter. Unlike Orders, the Forecast does not create any
obligations on the part of Integral in connection with the order
or non-order of units of the Product. Integral and Jasper will
mutually agree on reasonable guidelines and requirements with
respect to delivery requests, delivery of Integral Raw Materials
to Jasper and the coordination and purchase of Jasper Raw
Materials.
2.3. Tendering of Orders. All Orders shall be proposed by Integral to
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Jasper in writing (including facsimile, email or mail). Each
Order shall include the applicable Product(s) and proposed
delivery dates, the price, the consignment destination and/or any
other detail or instruction. Each order so submitted shall be
accepted or declined in writing, in whole or part, not later than
five (5) business days following receipt by Jasper. Where the
quantity of Developed Product units ordered is within the scope
of the Forecast, Jasper will accept the Order. Where the quantity
of units is higher than the quantity in the Forecast, Jasper may
confirm the entire Order or it may confirm only the quantity
falling within the scope of the Forecast and decline the extra
quantity, and its decision shall be stated in the notice to
Integral. Failure to notify Integral of rejection of an Order
within the stated period constitutes acceptance of the entire
Order.
2.4. Development of Specifications and Manufacture of Test-Run
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Products. During the Primary Term and any extension thereof,
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Integral will develop proposed
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Product Specifications for Test Run Products. Jasper will work
with Integral to manufacture Test-Run Products in accordance with
the Product Specifications developed by Integral.
2.5. Specifications. Prior to tendering to Jasper an Order, Integral
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shall provide to Jasper written Product Specifications for the
applicable Product, including proposed Product Specifications for
Test-Run Products. Integral may, by written request (including
facsimile or email), make changes in the Product Specifications
and Jasper will not unreasonably refuse such request ("CHANGE
ORDER"). If the Change Order results in a cost modification that
has been mutually agreed to by the parties at the time the Change
Order is proposed, the new price will apply to any subsequent
orders of Product.
2.6. Integral Raw Materials. Integral shall retain title and, subject
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to the provisions set forth below, risk of loss to all Integral
Raw Materials until such Integral Raw Materials are combined with
Jasper Raw Materials in the manufacture of Products; provided
however that Jasper shall retain insurance on Integral Raw
Materials on Jasper's premises as required by Section 10 hereof
and Integral shall be a loss payee with respect to such insurance
as applicable to Integral Raw Materials.
2.7. Products. Jasper will package the Products in accordance with the
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packaging specifications provided by Integral from time to
time. Title and risk of loss to all Products shall transfer to
Integral upon loading into trucks or railcars at Jasper's
facility for shipment in accordance with written instructions
provided by Integral.
2.8. Inspection and Acceptance. Within ten (10) days after
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confirmation to Integral of receipt of each complete shipment of
Product by Integral's customers, Integral conclusively shall be
deemed to have concurred in the appropriateness of the quantity
of the shipment, unless Integral shall state a claim for shortage
in count in writing within such ten (10) day period. Integral
will accept any Products that have been manufactured, packaged
and delivered in compliance with the terms of this Agreement, the
Product Specifications and Integral's orders ("Conforming
Products"). Integral or its customer if direct shipped may reject
or revoke acceptance of any Products that are not Conforming
Products upon discovery of defects or other non-conformities
within a reasonable time of its receipt of such Products. Upon
rejection or revocation of non- Conforming Products, Integral
will immediately send a representative sample of such
non-Conforming Product to Jasper. Upon Integral's rejection or
revocation of acceptance of Products hereunder or Jasper's
failure to fully meet the terms of a Product order in whole or in
part, Integral shall return the rejected Products to Jasper and,
at its sole option, direct Jasper to (i) pay to Integral the
Price (as defined below) of such rejected or missing Product if
Integral has already paid for such Product through a direct
payment to Integral or (at Integral's sole option) apply a credit
towards Integral's future payments or (ii) replace such rejected
or missing Product with Conforming Product at no additional cost
to Integral.
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3. TERM AND TERMINATION.
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3.1. Primary Term. This Agreement shall commence on the date hereof,
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and shall continue until the close of Jasper's business on
the date five (5) years from the date hereof (the "Primary
Term"), unless sooner terminated, or extended, as hereinafter
provided.
3.2. Extensions. After the Primary Term, this Agreement shall renew
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automatically for successive five (5) year renewal terms, unless
notice of non-renewal is given not less than one (1) year prior
to the commencement of the applicable renewal term.
3.3. Default Termination. Either party may terminate this Agreement
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upon a "Default", as defined in Section 3.4, below, by the
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other party, such termination to be effective thirty (30) days
from the date the party desiring termination gives the other
party written notice of the Default; provided that if the party
in Default cures or remedies the same within such thirty (30) day
period, such termination shall be deemed null and void.
3.4. Default. The occurrence of any one or more of the following
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events shall constitute a Default under this Agreement; provided
that none of the following shall constitute a Default if disputed
in good faith, pending receipt of a final judicial determination
as to the alleged Default or Settlement of the matter.
1. If either party to this Agreement fails to pay any
undisputed amount due under this Agreement when the same is
due and payable;
2. If either party to this Agreement is in material breach of
any warranty, term or condition of to this Agreement. ;
3. If either party becomes insolvent, makes an assignment for
the benefit of creditors or is unable to pay its debts as
they mature; or
4. If any action or proceeding is brought by or against either
party under any law that affects the rights of creditors
(including, but not limited to, any action or proceeding
seeking the dissolution or liquidation of, or the
appointment of a receiver or trustee for, any of either
party's assets); provided, however, that the party subject
to such actions shall not be in Default hereunder so long as
that party in good faith challenges the appointment of a
receiver or trustee for any of its assets;
3.5. Termination without Cause by Integral. Integral may terminate
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this Agreement for any reason, with or without cause, upon one
year's prior written notice to Jasper, provided that Integral may
not terminate the Agreement under this Section 3.5 during the
first two (2) calendar years following the Effective Date. In the
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event of any termination without cause by Integral during the
Primary Term, Integral shall purchase from Jasper all equipment,
fixtures and facilities purchased by Jasper for purposes of
performing the work under this Agreement (the "Purchased
Equipment") at a fee equal to the then-current fair-market value
of such Purchased Equipment (which appraiser of such "fair-market
value" shall be jointly appointed by, and whose cost shall be
borne equally by, the parties). In addition to purchasing the
Manufacturing Equipment, Integral will pay Jasper a fee equal to
any and all sums due for leased equipment acquired for such
purpose accruing or payable after the termination of this
Agreement provided that Jasper will use commercially reasonable
good faith efforts to assign such leases to Integral.
4. PRICE, INVOICING AND PAYMENT.
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4.1. Price. The Price and its components will be set forth in Schedule
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A to be attached to this Agreement and amended periodically
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as provided herein. The per unit price for each unit of Product
produced and shipped by Jasper (the "Price") shall consist of the
sum of (x) the mutually agreed upon anticipated delivered cost of
the Jasper Raw Materials (the "Materials Component"), plus (y)
the cost of manufacturing by Jasper (the "Conversion Component")
as set out in Schedule A, which shall be an hourly charge for
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Test-Run Products and a per unit or per pound charge agreed upon
in advance for all Developed Products, plus (z) Jasper's
packaging costs (such costs to be agreed in advance by the
parties).
4.2. Materials Component. The Materials Component of the Price shall
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be reconciled, within thirty (30) days after the end of each
calendar quarter via a quarterly Materials Variance Report which
Jasper shall provide to Integral, to the actual cost experienced
for a calendar quarter as of the end of each calendar quarter. If
neither party requests a payment to reconcile any calculated
difference in Material costs, such reconciled balance shall be
carried until a reconciliation is requested. If the actual cost
of Materials significantly changes, either party may request and
receive a Schedule A adjustment of the Materials Component to
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compensate for such Material Component changes.
4.3. Conversion Component. The Conversion Component shall include all
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of Jasper's direct and indirect labor costs, overhead, overtime,
profit and waste above the applicable Waste Component (estimated
at five percent (5%), and only applicable for hourly charge
work). For Products for which a per unit or per pound Conversion
Component is changed, the Waste Component for Integral Raw
Materials shall be two percent (2%), and Jasper shall compensate
Integral for excess waste of Integral Raw Materials if the Waste
Component for Integral Raw Materials exceeds two percent (2%) for
any calendar quarter. The Conversion Component shall be agreed
upon in good faith for each Product based upon the volume
("Period Volume") of Products produced and shipped during each
calendar quarter from and after the date of this Agreement as set
forth on Schedule A. The Conversion Component for the upcoming
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period shall be based
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on the Forecast provided by Integral. Within thirty (30) days
after the end of each quarter, a retroactive billing adjustment
shall be calculated to the extent the actual volume produced and
shipped is greater or less than the projected volume estimated by
Integral on which the Conversion Component was based. A credit or
charge shall be issued to compensate for the proper Conversion
Component based upon the actual Period Volume.
4.4. Taxes and Law Changes. Integral shall be responsible for any
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sales or use taxes relating to the transfer of the Products to
Integral unless Integral provides to Jasper necessary
documentation relating to resale of the Products to properly
avoid such taxes. If a change in law or regulation affecting the
price of Jasper Raw Materials or the production or sale of the
Products after the date hereof shall increase the cost to Jasper,
Jasper and Integral shall negotiate a mutually agreeable
adjustment to the Price to offset such increased cost from a
change in law or regulation.
4.5. Payment Terms. Jasper will provide Integral with an invoice
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setting forth the quantity and Price for Products in each
delivery identified by the applicable purchase order, product
code, callout numbers or other applicable reference. Integral
agrees to pay Jasper (i) net ten (10) days from the date of the
invoice less a one percent (1%) discount on the fee set forth in
such invoice or (ii) net thirty (30) days from the date of the
invoice with no discount. If the date payment is due is a weekend
or is a holiday recognized by the party sending the payment, the
payment will be made on the immediately following workday. The
instruction for sending payments to Jasper is:
Jasper Rubber Products, Inc.
P.O. Box 660233
Indianapolis, Indiana 46266-0233
All invoices will be sent to Integral at the following address:
Integral Technologies, Inc.
805 West Orchard Street, #7
Bellingham, Washington 98225
5. FORCE MAJEURE.
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5.1. Force Majeure Defined. The term "Force Majeure," as used herein,
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shall mean any causes beyond the control of the party affected
thereby, such as, without limitation, acts of God; acts of the
public enemy; national emergency; insurrections; riots; strikes;
labor disputes; fires; explosions; floods, breakdown or damage to
plants, equipment, or facilities not the fault of the party
attempting to exercise the applicability of this section and the
non-performance or inadequate performance by any vendor of any
Integral Raw Materials or Jasper Raw Materials.
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5.2. Performance Excused. If, because of Force Majeure, either party
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hereto is reasonably prevented from performing its obligations
under this Agreement and if such party promptly gives to the
other party notice of the Force Majeure, the obligations of the
parties shall be excused as of the commencement of the Force
Majeure event to the extent affected by the Force Majeure and its
continuance, provided the party claiming Force Majeure uses
commercially reasonable efforts to mitigate the effect of such
Force Majeure insofar as possible with reasonable dispatch.
Nothing herein shall be construed as requiring either party to
settle any labor dispute.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Integral is the sole and exclusive owner of all the intellectual
property rights (including rights in inventions, patents,
copyright, trademarks, trade secrets, and any other legally
recognized intellectual property right) embodied in, relating to
or linked to the Product and the Specifications. In the event
that Jasper or anyone on its behalf creates works deriving from
the Products or Specifications, Jasper undertakes to transfer or
to arrange for the transfer of any right that it or anyone on its
behalf might have in the derivative works. This agreement does
not vest Jasper with any proprietary or obligatory right to the
Products or Specifications.
7. WARRANTY; DISCLAIMER
7.1. Warranty by Jasper. Jasper warrants that the Products and the
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Jasper Raw Materials will (a) assuming conformity of the Integral
Raw Materials, conform to the Product Specifications and any
samples, drawings, and descriptions applicable to the specific
Product; (b) assuming conformity of the Integral Raw Materials,
be free from defects in material and workmanship under normal use
and service for a period of at least twelve (12) months from the
date of shipment of the Products to the end-user customer in the
form of a completed product to be used by the end-user; (c) be
new and unused; and (d) be free and clear of any and all liens,
claims, encumbrances and other restrictions of any kind. These
warranties shall survive any delivery, inspection, acceptance,
payment, or resale of the Products.
7.2. Warranty by Integral. Integral warrants that the Integral Raw
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Materials will (a) conform to the Product Specifications and any
samples, drawings, and descriptions applicable to the specific
Product; (b) be free from defects in material and workmanship
under normal use and service for a period of at least twelve (12)
months from the date of shipment of the Products to the end-user
customer in the form of a completed product to be used by the
end-user; (c) be new and unused; (d) be free and clear of any and
all liens, claims, encumbrances and other restrictions of any
kind; (e) conform to all the requirements of applicable law
including all applicable health, safety and environmental
regulations, and (f) not infringe upon the intellectual property
rights of any third party.
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7.3. EXCEPT FOR THOSE WARRANTIES EXPRESSLY PROVIDED IN SECTIONS 7.1
AND 7.2, EACH PARTY ON BEHALF OF ITSELF AND ITS SUBSIDIARIES,
AFFILIATES, AND SUPPLIERS, DISCLAIMS ALL WARRANTIES AND DUTIES,
WHETHER EXPRESS, IMPLIED STATUTORY, OR OTHERWISE, AS TO ANY
MATTER WHATSOEVER RELATING TO THIS AGREEMENT, INCLUDING THE
SERVICES, PRODUCTS AND ANY OTHER INFORMATION OR MATERIALS
EXCHANGED BETWEEN THE PARTIES, INCLUDING BUT NOT LIMITED TO ANY
(IF ANY) IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE
CARE OR WORKMANLIKE EFFORT, OR RESULTS, ALL WITH REGARD TO THIS
AGREEMENT, INCLUDING THE SERVICES, PRODUCTS, AND ANY OTHER
INFORMATION OR MATERIALS EXCHANGED BETWEEN THE PARTIES IN
CONNECTION WITH THIS AGREEMENT.
8. INDEMNITY OBLIGATIONS.
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8.1. Indemnification by Jasper. Jasper will defend, indemnify, and
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hold harmless Integral and its parents, subsidiaries, affiliates,
successors, and assigns, and their respective officers,
directors, employees, agents, and contractors from and against
(i) any and all claims, demands, liabilities, losses, damages,
costs, or expenses (including reasonable attorneys' fees),
including by way of example only and not limitation for death,
personal injury, property damage, or otherwise, to the extent
based on, arising out of, or in any way related to (a) the
operation or condition of Jasper's equipment and facilities, (b)
Jasper's or its parents', subsidiaries', affiliates',
successors', or assigns', or their respective officers',
directors', employees', agents', or contractors' failure to
perform its obligations under this Agreement or breach of the
warranties under Section 7.1, (c) any claim that the Jasper Raw
Materials violate the Intellectual Property rights of a third
party, or (d) any negligent act, misfeasance, or malfeasance, by
Jasper or its parents, subsidiaries, affiliates, successors, or
assigns, or their respective officers, directors, employees,
agents, or contractors, (ii) any and all fees (including
reasonable attorneys' fees), costs, and expenses incurred by
Integral or its parents, subsidiaries, affiliates, successors, or
assigns, or their respective officers, directors, employees,
agents, or contractors, in the investigation, correction, or
defense against any and all such losses, claims, or threatened
claims; except to the extent any such claim for loss, cost,
expense, damage, or liability is the direct result of the acts or
negligence of Integral or its parents, subsidiaries, affiliates,
successors, or assigns or their respective officers, directors,
employees, agents, or contractors. If Integral receives notice of
any claim for which it considers Jasper responsible under this
Paragraph, Integral promptly will inform Jasper in writing
8.2. Indemnification by Integral. Integral will defend, indemnify, and
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hold harmless Jasper and its parents, subsidiaries, affiliates,
successors, and assigns, and their respective officers,
directors, employees, agents, and contractors from and against
(i) any and all claims, demands, liabilities, losses, damages,
cost, or expenses
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(including reasonable attorneys' fees), including by way of
example only and not limitation for death, personal injury,
property damage, or otherwise to the extent based on, arising out
of, or in any way related to (a) Integral's or its parents',
subsidiaries', affiliates', successors', or assigns', or their
respective officers', directors', employees', agents;, or
contractors; failure to perform its obligations under this
Agreement or breach of the warranties under Section 7.2, (b) any
claim that Integral's Intellectual Property violates the rights
of any third party, or (c) any negligent act, misfeasance,
malfeasance, or non-feasance by Integral or its parents,
subsidiaries, affiliates, successors, or assigns, or their
respective officers, directors, employees, agents, or
contractors, and (ii) any and all fees (including reasonable
attorney's fees), costs, and expenses incurred by Jasper or its
parents, subsidiaries, affiliates, successors, or assigns, or
their respective officers, directors, employees, agents, or
contractors in the investigation, correction, or defense against
any and all such losses, claims, or threatened claims; except to
the extent any such claim for loss, cost, expense, damage, or
liability is the direct result of the acts or negligence of
Jasper or its parents, subsidiaries, affiliates, successors, or
assigns, or their respective officers, directors, employees,
agents, or contractors. If Jasper receives notice of any claim
for which it considers Integral responsible under this Paragraph,
Jasper promptly will inform Integral in writing.
8.3. Procedure. The foregoing indemnifications are conditioned on the
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party claiming indemnification promptly furnishing the
indemnifying party with written notice of each claim, loss,
damage, or expense for which indemnity will be claimed and
permitting the indemnifying party to assume the defense thereof
with the cooperation of the other party, at the indemnifying
party's sole cost and expense. The indemnifying party will have
the obligation to assume the defense of any such claim to the
extent the indemnifying party has responsibility to the
indemnified party under this Article 6. The indemnified party may
participate in, but not control, the defense of such claim at its
sole cost and expense. An indemnifying party will have no
liability under this Article 6 as to any claim for which
settlement or compromise or an offer of settlement or compromise
is made by the indemnified party without the prior consent of the
indemnifying party, which consent will not be unreasonably
withheld.
9. LIMITATION OF LIABILITY.
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9.1. EXCEPT FOR A BREACH OF SECTION 15.6 (CONFIDENTIALITY) OR A BREACH
OF A PARTY'S OBLIGATIONS UNDER SECTION 8 (INDEMNIFICATION),
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL,
CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, EVEN IF SUCH PARTY
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. INSURANCE.
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10.1. Insurance. Jasper will maintain the insurance coverage required
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in Subparagraphs 1, 2, 3 and 4.
1. Workmen's Compensation. Workmen's compensation insurance
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in compliance with the applicable workmen's compensation
and/or occupational disease act.
2. Employer's Liability. Employer's liability insurance with
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limits of liability of not less than $500,000 for any one
accident or disease.
3. General Liability. Comprehensive or commercial general
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liability insurance (including coverage for premises
operations, broad form property damage, products/completed
operations, contractual liability covering this Agreement as
an "insured contract", independent contractor and personal
injury, with limits of not less than $10,000,000). Products
liability includes a broad form vendor's endorsement naming
Integral as an additional insured.
4. Automobile. Automobile liability insurance (including hired
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car and non-ownership liability insurance if any automobiles
will be hired by Jasper or if its employees will use their
personally owned vehicles in the business of Jasper) with
limits of liability of not less than $1,000,000 combined
single limit bodily injury and property damage.
5. All Risk Property Policy. All risk property policy,
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including coverage for business interruption, based upon
replacement cost covering Jasper's plant, Jasper Raw
Materials, Integral Raw Materials on Jasper premises and
finished Products inventory.
Certificates of insurance showing compliance with foregoing
requirements shall be furnished by Jasper to Integral within
fifteen (15) days of the execution of this Agreement. Integral
has no obligation to either review such certificates or to inform
Jasper that the certificates or policies do not conform to the
requirements of this Agreement. Certificates shall state that the
General Liability policy or policies will not be canceled nor
altered without at least thirty (30) days prior written notice to
Integral and without reducing the coverage amounts of such policy
or policies. No other required policy shall be altered to lower
the coverage or coverage limits from those required above without
Integral's prior consent. If Integral shall so request, Jasper
shall furnish Integral for its inspection and approval such
policies of insurance with all endorsements, or conformed
specimens thereof certified by the insurance company to be true
and correct copies. The policy limits specified above may be
satisfied through a combination of the stipulated primary
liability insurance and umbrella and/or excess liability
insurance. The insurance policies required by this Agreement must
be written by an insurance company that is authorized to do
business in the states where Jasper's facilities exist and that
have a rating or A- or above.
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11. ADDITIONAL COVENANTS AND UNDERTAKINGS.
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11.1. Authority. Both parties respectively state that they have full
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power and authority to execute and deliver this Agreement and all
related documents, and to carry out the transactions contemplated
herein. This Agreement is valid, binding and enforceable against
the parties in accordance with its terms. The execution of this
Agreement and the consummation of the transactions contemplated
herein will not result in the breach of the terms and conditions
of, nor constitute a default under or a violation of, either
parties' articles of incorporation, or by-laws, or any law,
regulation, court order, mortgage, note, bond indenture,
agreement, license, or other instrument or obligation to which
either party is now a party or by which either party of any of
its assets may be bound or affected.
11.2. Non-competition. During the Term and for a period of twelve (12)
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months after its expiration or termination for any reason, Jasper
will not, directly, indirectly or through a third party, supply,
manufacturer or assemble products that constitute or might
constitute an alternative to the Products or performs the same
functionality as the Products and will not engage, directly or
indirectly or through a third party, as manager, employee,
consultant, agent, franchisee, shareholder and/or in any other
way assist in the development of a product competing or that
might compete with Integral's business, that constitutes or might
constitute an alternative to the Products or performs the same
functionality as the Product. Jasper agrees that the above
restrictions are fair and reasonable for the purpose of
protecting Integral's interests pursuant to this agreement,
including the protection of its trade secrets, that they do not
deny Jasper an opportunity to make reasonable earnings and that
the parties took these restrictions into account when agreeing to
the payments provided for herein.
12. DISCLAIMER OF AGENCY AND PARTNERSHIP.
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12.1. Relationship of the Parties. The relationship between Integral
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and Jasper shall be that of vendor and purchaser only. Nothing
contained herein shall be deemed or construed to create a joint
venture or general partnership between Integral and Jasper, nor
authorize either party to act as a general agent for the other
party, nor to permit either party to undertake any obligations
for or on behalf of the other party, except as expressly set
forth herein. It is further expressly understood and agreed that
no work, act, commission or omission of either party, its agents,
servants or employees, shall be construed to make or render
either party (or its agents, servants or employees), an agent,
servant or employee of other party. No agent, servant or employee
of either party shall be entitled to the benefits provided by the
other party to its agents, employees or servants, including but
not limited to, wages, salaries, health benefits and deferred
compensation benefits. Furthermore, this agreement shall not
create nor be construed to create in any manner whatsoever any
third-party beneficiary rights in any person.
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13. WAIVERS; REMEDIES CUMULATIVE.
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13.1. Waiver. The failure of either party hereto to insist in any one
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or more instances upon strict performance of any provision
of this Agreement by the other party hereto, or to take advantage
of any of its rights hereunder, shall not be construed as a
waiver by it of any such provision or the relinquishment by it of
any such rights in respect of any subsequent nonperformance of
such provision; but the same shall continue and remain in full
force and effect.
13.2. Remedies Cumulative. Each remedy specifically provided for under
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this Agreement shall be taken and construed as cumulative
and in addition to every other remedy provided for herein or by
law.
14. MEDIATION.
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14.1. Dispute Resolution. In the event of any controversy, claim,
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counterclaim, defense, dispute, difference or misunderstanding of
any type whatsoever between the parties arising out of or
relating to this Agreement ("Dispute(s)"), representatives of the
parties shall meet promptly in an effort to resolve the Dispute
amicably. If the Dispute is not amicably resolved by negotiation
within forty-five (45) days of the disputing party's notice of
such Dispute, or if the parties' representatives failed to meet
within twenty (20) days of such notice, the parties shall
endeavor to settle such Dispute by mediation. All Disputes will
be referred to mediation before, and as a condition precedent to
the initiation of any adjudicative action.
14.2. Mediation Procedure. If the parties fail to resolve a Dispute
--------------------
by negotiation or to meet within the time limits provided above,
the parties will have ten (10) calendar days to appoint a
mutually acceptable mediator. If unable to agree, the parties
will seek the assistance of the Attorney-Mediators Institute,
based in Houston, Texas, to choose a mediator. The parties will
mediate in good faith for up to twenty (20) calendar days from
the appointment of the mediator. If the parties do not resolve
the Dispute within the twenty (20) day period, either party may
initiate an action or proceeding based on the Dispute. Each party
will continue to perform this Agreement pending the final
resolution of the Dispute.
15. MISCELLANEOUS.
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15.1. Change of Control. Jasper shall not assign its rights, interests,
-------------------
or duties under this Agreement without the prior written consent
of Integral. Following any assignment or attempted assignment by
Jasper, Integral may, but is not obligated to, immediately
terminate this Agreement. For purposes of this Agreement, an
"assignment" by Jasper under this Section 15.1 is deemed to
include, without limitation, each of the following: (a) a merger
of Jasper with another party, whether or not Jasper is the
surviving entity; (b) the acquisition of more than twenty percent
(20%) of any class of Jasper's voting stock (or any class of non-
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voting security convertible into voting stock) by another party
(whether in a single transaction or series of transactions); and
(d) the sale or other transfer of more than fifty percent (50%)
of Jasper's assets (whether in a single transaction or series of
transactions). Following any assignment or attempted assignment
by Jasper, Integral may, but is not obligated to, immediately
terminate this Agreement. In the event of any assignment
permitted under this Section 15.1, Jasper will remain liable for
the performance of their obligations under this Agreement.
15.2. Notices. Except as otherwise provided herein, all notices
-------
required or permitted to be given hereunder shall be in writing
and shall be deemed properly given when delivered in person to
the party to be notified, or when mailed by registered or
certified United States mail, postage prepaid, or by telegraph,
Telex, TWX, or other electronic means, to the party to be
notified or such designee as it may designate by written notice,
at its address set forth below, or such other address within the
continental United States of America as the party to be notified
may have designated prior thereto by written notice to the other:
As to Jasper: Jasper Rubber Products, Inc.
1010 First Avenue
Jasper, IN 47547
Attention: President
Fax: 812/481-2702
As to Integral: Integral Technologies, Inc.
805 West Orchard Street, #7
Bellingham, Washington 98225
Attention: President
Fax: 604/685-6794
Reports and statements hereunder also may be mailed by ordinary
United States mail, postage prepaid, addressed as set forth
above.
15.3. Governing Law. This Agreement shall be governed by and
--------------
interpreted by the laws of the State of Washington, without
regard to conflicts of laws provisions. The prevailing party in
any such action shall be entitled to recover its attorney fees,
court costs and expenses reasonably incurred in connection with
any such action.
15.4. Time. Time is of the essence of each part of this Agreement.
----
15.5. Further Assurances. Each party hereto will perform all other
-------------------
acts and execute and deliver all other documents and/or
instruments as may be necessary or appropriate to carry out the
intent and purpose of this Agreement.
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15.6. Confidentiality. Integral and Jasper acknowledge that the
---------------
specific terms of this Agreement, and the parties' disclosures
and activities in connection with this Agreement, are
confidential and subject to the terms and conditions of the
Proprietary Information Mutual Nondisclosure Agreement between
Jasper and Integral dated April 10, 2006 as "Proprietary
Information."
15.7. Entire Agreement. This Agreement (together with any exhibits,
-----------------
all of which are incorporated by reference in their entirety)
contains the entire agreement between the parties hereto relating
to the rights herein granted and the obligations herein assumed.
Any other prior agreements, promises, negotiations or
representations relating to the subject matter of this Agreement
not expressly set forth herein shall be of no force or effect.
15.8. Modification. This Agreement shall not be modified, altered, or
------------
amended except in writing signed by both parties.
15.9. Binding Effect. This Agreement and all rights and obligations
---------------
accruing hereunder, shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors,
including successors by way of merger, consolidation,
reorganization and/or purchase and sale of all, or substantially
all, of the assets of a party hereto.
15.10. Headings. The headings of this Agreement are for convenience
--------
and reference only, have no substantive significance and shall be
disregarded in the interpretation of this Agreement.
15.11. Execution. This Agreement may be executed in counterparts, each
----------
of which shall be deemed an original, but all of which together
shall constitute one and the same.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
as of the date first above written.
INTEGRAL TECHNOLOGIES, INC.
BY: /s/ William A. Ince
---------------------------------------------
ITS: President
---------------------------------------------
Before me, a Notary Public, in and for said County and State, personally
appeared the within named William A. Ince, President and CFO of INTEGRAL
TECHNOLOGIES, INC. who acknowledged the execution of the foregoing Manufacturing
Agreement to be their voluntary act and deed and to be the voluntary act and
deed of said corporation.
WITNESS my hand and Notarial Seal this 22nd day of November, 2006.
----
/s/Erica Zender
---------------
Notary Public
My Commission Expires: 4-1-10 My County of Residence is:
STATE of WASHINGTON )
)
COUNTY OF WHATCOM )
JASPER RUBBER PRODUCTS, INC.
BY: /s/ Douglas R. Mathias
---------------------------------------------
ITS: President and CEO
---------------------------------------------
Before me, a Notary Public, in and for said County and State, personally
appeared the within named Douglas R. Mathias, President and CEO of JASPER RUBBER
PRODUCTS, INC. who acknowledged the execution of the foregoing Manufacturing
Agreement to be their voluntary act and deed and to be the voluntary act and
deed of said corporation.
WITNESS my hand and Notarial Seal this 27th day of November, 2006.
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/s/ Janelle Durcholz
---------------------
Notary Public
My Commission Expires: Oct 19, 2007 My County of Residence is:
STATE of INDIANA )
)
COUNTY OF DUBOIS )
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