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As Of Filer Filing For·On·As Docs:Size Issuer Agent 2/21/06 Carthew Bay Technologies Inc 6-K/A 2/21/06 3:244K Vintage/FA |
Document/Exhibit Description Pages Size 1: 6-K/A Amendment to Report of a Foreign Private Issuer HTML 14K 2: EX-99.1 Miscellaneous Exhibit HTML 11K 3: EX-99.2 Miscellaneous Exhibit HTML 69K
| 1. |
ASTRIS
is a world leader in the development and practice of Alkaline Fuel
Cell
(AFC) technology with more than twenty years of progressive experience,
and produces a power generator (the “ASTRIS AFC
Power Generator”)
and related products, and
|
| 2. |
TROPICAL
has necessary resource to market and sell ASTRIS products
and
|
| 3. |
TROPICAL
intends to act as a Reseller for ASTRIS AFC Power Generator products,
and
|
| 4. |
TROPICAL
intends to represent ASTRIS at trade shows and
conventions.
|
| 1. |
Cooperation.
TROPICAL and ASTRIS (the “Parties”)
intend to cooperate in marketing ASTRIS current products and demonstration
units. Such cooperation shall include, but not be limited to the following
matters:
|
| a. |
During
the term of this agreement, TROPICAL
will:
|
| i. |
Act
as a Reseller for ASTRIS AFC Power Generators including the Golf Car,
and
|
| ii. |
Ensure
that all products that include any part of ASTRIS technology are
appropriately identified with ASTRIS logo and/or ASTRIS trademarks
in
accordance with the prior written approval of ASTRIS,
and
|
| iii. |
Agree
to submit to ASTRIS, in advance of any proposed use, samples of its
use of
the ASTRIS logo and/or ASTRIS trademarks for review in accordance with
Section 7 below, and
|
| iv. |
Attend
necessary training at ASTRIS facility,
and
|
| v. |
Act
in accordance with the terms of Attachment B - End User License Agreement
a copy of which will be delivered to the end user with every
shipment.
|
| b. |
During
the term of this agreement, ASTRIS will:
|
| i. |
Provide
current specification sheet(s) and publicity material of relevant ASTRIS
technology to TROPICAL, and
|
| ii. |
Sell
to TROPICAL at prices detailed in Attachment A - Pricing Structure
and
under current delivery times, ASTRIS AFC Power Generator(s),
and
|
| iii. |
Provide
training to TROPICAL representatives onsite at ASTRIS head office,
and
|
| iv. |
As
required by TROPICAL, provide onsite and/or remote
support.
|
| 2. |
Compensation/Costs.
The Parties agree as follows regarding the compensation and costs related
to this agreement:
|
| a. |
TROPICAL
will be responsible for:
|
| i. |
Costs
related to purchase of ASTRIS AFC Power Generator units,
and
|
| ii. |
Costs
related to shipping of ASTRIS AFC Power Generator units from the
Mississauga, Ontario head office of ASTRIS,
and
|
| iii. |
Direct
costs of training or support provided by ASTRIS,
and
|
| iv. |
Indirect
costs of training or support incurred by ASTRIS at cost, including
but not
limited to travel, lodging, meals and sundry,
and
|
| v. |
All
taxes payable on all such amounts.
|
| b. |
Terms
of payment will be consistent with ASTRIS’ current market terms at the
time of order of any products or services, which are subject to change
in
ASTRIS’ sole discretion at any time, and presently
require:
|
| i. |
40%
deposit at time of order, and
|
| ii. |
Complete
payment at time of delivery.
|
| c. |
Terms
of delivery will be consistent with ASTRIS’ current market terms at the
time of order of any products or services and presently require a delivery
time of 6 months from time of order accompanied by
deposit.
|
| 3. |
Intellectual
Property.
It
is the intention of the Parties that no intellectual property shall
be
created as a result of this agreement. In the event the Parties engage
in
activities that create any intellectual property, unless otherwise
set out
in writing between the Parties, the Parties agree as
follows:
|
| a. |
all
intellectual property created or established as a result of this agreement
shall be owned by, and be the exclusive property of, ASTRIS
alone;
|
| 4. |
Terms/Conditions.
The Parties agree as follows regarding the term of this agreement and
conditions associated with this
agreement:
|
| a. |
The
term of this agreement is one year from its effective
date.
|
| b. |
This
agreement shall be extended for an additional one year term unless
otherwise terminated by either Party in accordance with Section
12.
|
| 5. |
Confidentiality
and Restricted Use of Confidential Information- TROPICAL.
For the purposes of this agreement, “Confidential
Information”
includes,
without limitation, information concerning the customers and accounts
of
the Parties, the purchase and sale prices or lists, methods, techniques,
processes and trade secrets of the Parties, discoveries, concepts and
ideas including, without limitation, the nature and results of research
and development activities, formulas, inventions, technology, “know-how”,
designs, drawings and specifications, and the marketing and selling
strategies of the Parties, in any medium whatsoever. TROPICAL
shall treat all Confidential Information furnished, or to be furnished,
to
TROPICAL in any medium whatsoever in accordance with the provisions
of
this agreement, and to take, or abstain from taking, the other actions
as
set forth in this paragraph. The Confidential Information shall be
used by
TROPICAL solely for the purpose of performing TROPICAL’s obligations under
this agreement and absolutely for no other purpose whatsoever, and
will be
kept strictly
confidential
by
TROPICAL and its officers, directors, employees, representatives, agents
and advisors; provided
that
(i) any of such Confidential Information may be disclosed to the
TROPICAL’s officers, directors, employees, representatives, agents and
advisors who need to know such Confidential Information for the purpose
of
performing TROPICAL’s obligations under this agreement, (ii) such
Confidential Information may be otherwise disclosed to the extent that
ASTRIS may expressly consent in writing prior to such disclosure, and
(iii) such Confidential Information may be disclosed to the extent
required by law. Upon any termination of this agreement in accordance
with
its terms, TROPICAL and its officers, directors, employees,
representatives, agents and advisors shall immediately return to ASTRIS
all
material containing or reflecting the Confidential Information disclosed
by ASTRIS in all mediums and immediately cease any use of such
Confidential Information, ASTRIS logo and/or ASTRIS trademarks. The
obligations set out in this paragraph shall survive
indefinitely.
|
| 6. |
Confidentiality
and Restricted Use of Confidential Information- ASTRIS. ASTRIS
shall treat all Confidential Information furnished, or to be furnished,
to
ASTRIS in any medium whatsoever in accordance with the provisions of
this
agreement, and to take, or abstain from taking, the other actions as
set
forth in this paragraph. The Confidential Information shall be used
by
ASTRIS solely for the purpose of performing ASTRIS’s obligations under
this agreement and absolutely for no other purpose whatsoever, and
will be
kept strictly
confidential
by
ASTRIS and its officers, directors, employees, representatives, agents
and
advisors; provided
that
(i) any of such Confidential Information may be disclosed to ASTRIS’s
officers, directors, employees, representatives, agents and advisors
who
need to know such Confidential Information for the purpose of performing
ASTRIS’s obligations under this agreement, (ii) such Confidential
Information may be otherwise disclosed to the extent that TROPICAL
may
expressly consent in writing prior to such disclosure, and (iii) such
Confidential Information may be disclosed to the extent required by
law.
Upon any termination of this agreement in accordance with its terms,
ASTRIS and its officers, directors, employees, representatives, agents
and
advisors shall immediately return to TROPICAL all
material containing or reflecting the Confidential Information disclosed
by TROPICAL in all mediums and immediately cease any use of such
Confidential Information, TROPICAL logo and/or TROPICAL trademarks.
The
obligations set out in this paragraph shall survive
indefinitely.
|
| 7. |
Trademarks.
|
|
a.
|
Ownership. All
trademarks, service marks, trade names, logos or other words or symbols
identifying the products or ASTRIS’s business (the “Marks”) are and will
remain the exclusive property of ASTRIS. TROPICAL will not take any
action
that jeopardizes ASTRIS’s proprietary rights or acquire any right in the
Marks, except the limited use rights specified in paragraph 1a.
above. TROPICAL will not register, directly or indirectly, any trademark,
service mark, trade name, copyright, company name or other proprietary
or
commercial right which is identical or confusingly similar to the
Marks or
which constitute translations thereof.
|
|
b.
|
Use. TROPICAL
will use the Marks exclusively in accordance with paragraph 1a.
above. All advertisements and promotional materials will (i) clearly
identify ASTRIS as the owner of the Marks, (ii) conform to ASTRIS's
then-current trademark and logo guidelines and (iii) otherwise comply
with any local notice or marking requirement contemplated under the
laws
of the territory in which any products are sold. Before publishing
or
disseminating any advertisement or promotional materials bearing
a Mark,
TROPICAL will deliver a sample of the advertisement or promotional
materials to ASTRIS for prior approval. If ASTRIS notifies TROPICAL
that
the use of the Mark is inappropriate, in ASTRIS’s sole discretion,
TROPICAL will not publish or otherwise disseminate the advertisement
or
promotional material until they have been modified to ASTRIS's
satisfaction in writing.
|
| 8. |
Remedies.
The Parties hereby agree that in the event of a breach of the foregoing
Sections 5 through 7 inclusive, the non-breaching Party shall have
the
right to seek a court order to prevent any further breach, including
the
ability to obtain injunctive relief without the necessity of posting
a
bond. Each Party shall indemnify and hold harmless the other from and
against any and all loss, liability, cost, attorneys’ fees or expense
based upon, arising out of or otherwise in respect of any breach or
violation of this agreement.
|
| 9. |
Warranty
and Disclaimer.
ASTRIS gives no warranty with respect to the workmanship, merchantability
or fitness for a particular purpose of the ASTRIS power generators
where
same have been incorporated into any product produced by TROPICAL.
TROPICAL acknowledges the developmental and/or experimental nature
of the
products and that as a result of such nature the products have not
been
approved or certified in any manner by any independent third party
or
governmental regulatory authority or body, and TROPICAL agrees to take
all
necessary precautions suitable for handling such early stage technology.
ASTRIS warrants the products solely to TROPICAL and solely against
defects
in workmanship and materials for a period of ninety (90) days from
the
date of delivery
to
TROPICAL (“Warranty
Period”).
All warranty claims must be requested of ASTRIS prior to the expiration
of
the applicable Warranty Period. TROPICAL may not transfer this warranty.
TROPICAL’s sole remedy, and ASTRIS’ sole liability for a covered warranty
defect shall be for ASTRIS, at its sole discretion, to either repair
or
replace the defective product at no charge, or to refund the price
for the
affected product. These warranties are void if the applicable product
has
been altered in any way or damaged by accident, misuse or abuse,
including, but not limited to, the use of unauthorized third party
software or repairs, power surges, excessive heat or humidity. ASTRIS’
warranty obligations shall not be enlarged or diminished by ASTRIS’
provision of technical advice to TROPICAL. THE PRECEEDING WARRANTY
DOES
NOT APPLY TO (I) ANY SOFTWARE COMPONENTS OF THE PRODUCT; (II) ANY THIRD
PARTY SOFTWARE DISTRIBUTED ON OR WITH THE PRODUCT; (III) ANY EXPENDABLE
COMPONENTS INCLUDING, BUT NOT LIMITED TO, FUSES, FILTERS, BULBS, AND
CLEANING ACCESSORIES; AND (IV) ANY PRODUCTS NOT MANUFACTURED BY OR
FOR
ASTRIS (THE “EXCLUDED ITEMS”). THE EXCLUDED ITEMS ARE LICENSED TO THE
LICENSEE ON AN AS IS BASIS.
|
| 10. |
Limitation
of Liability.
Except for payment obligations, a Party will not be liable for any
failure
or delay in performing an obligation that is due to causes beyond its
reasonable control, so long as the party gives prompt notice to the
other
party and makes all reasonable efforts to perform. IN NO EVENT WILL
A
PARTY BE LIABLE FOR ANY LIABILITIES, CLAIMS, CAUSES OF ACTIONS, SUITS,
DAMAGES, COSTS AND EXPENSES (INCLUDING ALL LEGAL FEES AND EXPENSES),
INCLUDING SPECIAL, INDIRECT, PUNITIVE, MORAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING, BUT NOT LIMITED TO,
LOST
PROFIT. ASTRIS’
MAXIMUM LIABILITY FOR ANY CLAIMS BY TROPICAL ARISING OUT OF TROPICAL’S USE
OF THE PRODUCTS SHALL IN NO EVENT EXCEED THE PRICE PAID BY TROPICAL
FOR
THE APPLICABLE PRODUCT.
|
| 11. |
Public
Announcements.
The parties hereto agree that neither they nor any of their respective
subsidiaries, officers, directors, employees or agents shall disclose
to
any third party or publicly announce the proposed Agreement until such
time as the parties hereto agree in writing to make such disclosure
or
announcement or unless otherwise required by law or regulation. Any
public
announcement concerning the proposed Agreement shall be approved in
advance by appropriate officers of the parties
hereto.
|
| 12. |
Termination. This
agreement may be terminated at any time upon delivery of not less than
30-day written notification of either of the parties hereto. Sections
3,
5, 6, 7, 8, 9 and 10 shall survive any termination of this agreement.
Upon
any termination of this agreement, TROPICAL shall immediately pay ASTRIS
all due and outstanding amounts, and TROPICAL will, at ASTRIS's option,
destroy or deliver to ASTRIS or its designee all items within TROPICAL
's
possession or control that contain any Confidential Information or
bear a
Mark and shall cease using all Marks.
|
| 13. |
U.S.
Export Restrictions. TROPICAL
acknowledges that the products supplied by ASTRIS hereunder and all
related technical information, documents and materials may be subject
to
export controls under the U.S. Export Administration Regulations. Where
such products are subject to such controls, TROPICAL will (i) comply
strictly with all legal requirements established under these controls,
and
(ii) cooperate fully with ASTRIS in any official or unofficial audit
or inspection that relates to these controls, and (iii) not export or
re-export any such products without the appropriate United States and
foreign governmental licenses or approval.
|
| 14. |
Status
of Parties.
The Parties acknowledge that they are independent contracting parties,
and
this agreement shall not constitute any such party as an agent,
representative, partner, co-venturer, employee, employer or franchisee
of
the other party, except as expressly provided for herein. Neither party
shall assume or create any obligation or responsibility whatsoever
on
behalf of, or in the name of, the other party except as otherwise provided
for herein.
|
| 15. |
Assignment
and Binding Effect.
This agreement shall be binding upon and enure to the benefit of the
Parties and their respective successors and permitted assigns, if any,
as
the case may be. This agreement may not be assigned by either Party
without the prior written consent of all other
parties.
|
| 16. |
Applicable
Law.
This agreement shall be governed by and interpreted in accordance with
the
laws of the Province of Ontario and the laws of Canada applicable therein.
The Parties do hereby irrevocably attorn to the jurisdiction of the
courts
of the Province of Ontario.
|
| 17. |
Notice.
Any notice or other communication required or permitted to be given
hereunder shall be in writing and, if mailed by prepaid first-class
mail
at any time other than during a general discontinuance of postal service
due to strike, lockout or otherwise, shall be sent to the other Party
at
the last known address of the other Party and be deemed to have been
received five (5) business days after the post-marked date thereof,
or if
telecopied, emailed or delivered by another form of recorded
communication, shall be deemed to have been received on the next business
day following dispatch and acknowledgement of receipt by the recipient’s
telecopier machine or other form of recorded communication, or if
delivered by hand shall be deemed to have been received at the time
it is
delivered. If either Party changes its address during the term of this
agreement, it shall immediately notify the other Party of such change
of
address in the foregoing manner.
|
|
Astris
Energi Incorporated
|
Tropical
S.A.
|
|
per:
/s/ Jiri K. Nor
|
per:
/s/ George Lagios
|
|
Jiri
K. Nor - President and CEO
|
George
Lagios - President & CEO
|
|
Astris
Energi Inc.
|
Tropical
S.A., Greece
|
|
Astris
Energi Incorporated
|
Tropical
S.A.
|
|
per:
/s/ Jiri K. Nor
|
per:
/s/ George Lagios
|
|
Jiri
K. Nor - President and CEO
|
George
Lagios - President & CEO
|
|
Astris
Energi Inc.
|
Tropical
S.A., Greece
|