WEB SITE LEASE AGREEMENT
THIS WEB SITE LEASE AGREEMENT (the "Agreement") is made and entered into as
of the 4th day of January, 2000 but effective as of the 1st day of November,
1999 (the "Effective Date"), by and between Lawrence F. Curtin ("Lessor") and
Photovoltaics.com, Inc. ("Lessee"), a Delaware corporation.
RECITALS:
WHEREAS, Lessor is the owner of the entire right, title and interest in
and to the domain name "www.photovoltaics.com" (the "Domain Name") and certain
computer and related hardware, hardware configurations, operations systems and
related software, proprietary and other software algorithms, and other data and
facilities assembled by Lessor for purposes of developing, operating and
maintaining a currently existing site on the World Wide Web (the "Web") using
the foregoing domain name (such Web site is referred to hereinafter as the
"Leased Web Site");
WHEREAS, Lessee desires to lease, for the Lease Period (as defined
below), the Domain Name and the Leased Web Site for the purpose of marketing and
selling Lessee's proprietary solar cells ("Lessee's Solar Cells"); and
WHEREAS, Lessor is willing to enter into such a lease on the terms,
provisions and conditions hereinafter set forth;
AGREEMENTS:
NOW, THEREFORE, for and in consideration of $10.00, the mutual
covenants, terms and conditions hereinafter expressed, and other good and
valuable consideration (the receipt, adequacy and sufficiency of which the
parties hereto hereby acknowledge), the parties hereto agree as follows:
ARTICLE I.
LEASE
A. In consideration of the amounts to be paid by Lessee to Lessor
pursuant hereto, Lessor hereby leases to Lessee for the Lease Period the Domain
Name and the Leased Web Site, upon the terms, provisions and conditions set
forth herein. Lessee shall have the right to use, operate, possess, and control
the Domain Name and the Leased Web Site during the Lease Period (subject to all
restrictions set forth herein), provided Lessee is not in default of the lease
payments required herein or any other provision of this Agreement.
B. Lessee shall use the Domain Name and the Leased Web Site solely for
marketing and selling Lessee's Solar Cells (the "Permitted Purpose") and for no
other purposes whatsoever. Lessee may not use the Domain Name or the Leased Web
Site to facilitate any illegal activity. All use of the Leased Web Site and the
Domain Name must comply with all applicable state, federal and international
laws and regulations. Lessee shall not operate the Leased Web Site in a manner,
and Lessee shall not offer at the Leased Web Site sales or services, that
Landlord reasonably believes to be offensive or not in keeping with the
Permitted Purpose.
C. Lessee shall have the right to have the Leased Web Site hosted by
any provider that Lessee chooses and to have the Domain Name redirected to
another Uniform Resource Locater (a "URL"), provided that, prior to doing so,
Lessee gives to Lessor in writing all relevant information in this regard and
(as requested by Lessor) such other information as Lessor may reasonably request
at that time or at any time thereafter.
D. Lessee shall not have the right to sublease or assign the Domain
Name or the Leased Web Site (or any portion of either of the same) except with
the express prior written consent of Lessor, which Lessor may grant or withhold
in his sole discretion. Any sublease or assignment of the Domain Name or the
Leased Web Site in violation of this ARTICLE I, Section D shall be null, void
and without effect.
ARTICLE II.
LEASE PAYMENTS
A. For purposes of computing lease payments under this
Agreement, "Net Sales Price" shall mean Lessee's invoice price for the Lessee's
Solar Cells, f.o.b. factory, after deduction of regular trade and quantity
discounts, but before deduction of any other items, including but not limited to
freight allowances, cash discounts, and agents' commissions. When Lessee's Solar
Cells are not sold, but are otherwise disposed of, the Net Sales Price of such
Lessee's Solar Cells for the purposes of computing lease payments shall be the
selling price at which Lessee's Solar Cells of similar kind and quality, sold in
similar quantities, are currently being offered for sale by Lessee. When such
Lessee's Solar Cells are not currently being offered for sale by Lessee, the Net
Sales Price of Lessee's Solar Cells otherwise disposed of, for the purpose of
computing lease payments, shall be the average selling price (on a cost-per-watt
basis) at which products of similar kind and quality, sold in similar
quantities, are then currently being offered for sale by other manufacturers.
When such products are not currently sold or offered for sale by Lessee or
others, then the Net Sales Price, for the purposes of computing lease payments,
shall be Lessee's cost of manufacture, determined by Lessee's customary
accounting procedures, plus one hundred percent (100%). In order to assure to
the Lessor full lease payments contemplated in this Agreement, Lessee agrees
that in the event any Lessee's Solar Cells shall be sold for purposes of resale
either (1) to a corporation, firm, or association that, or individual who, owns
a controlling interest in Lessee by stock ownership or otherwise, or (2) to a
corporation, firm, or association in which Lessee or its stockholders own a
controlling interest by stock ownership or otherwise, the lease payments to be
paid in respect to such Lessee's Solar Cells shall be computed on the net
selling price at which the purchaser for resale sells such Lessee's Solar Cells
rather than on the net selling price of the Lessee.
B. Lessee shall pay to Lessor continuing lease payments of five percent
(5.0%) of the Net Sales Price of Lessee's Solar Cells sold or otherwise disposed
of by Lessee by means of the Leased Web Site. All amounts that become due to
Lessor pursuant to this ARTICLE II, Section B with respect to a calendar quarter
shall be paid to Lessor within thirty (30) days after the end of such calendar
quarter.
C. Lessee shall maintain complete books and records with respect to the
sale or other disposition of Lessee's Solar Cells by means of the Leased Web
Site. Within thirty (30) days after the end of each calendar quarter, Lessee
shall render to Lessor a written statement regarding the sale or other
disposition of Lessee's Solar Cells by means of the Leased Web Site during such
calendar quarter. If any error is made by Lessee in any statement, it may be
corrected by Lessee within one year thereafter by making any necessary
deductions or additions on subsequent statements, or at Lessee's option by the
rendering of an amended statement. Any statement rendered by Lessee shall
conclusively be deemed true and correct and binding upon Lessor, shall
constitute an account stated and shall be incontestible unless Lessor delivers
to Lessee, within 13 months from the date such statement was delivered to
Lessor, specific written objections, setting forth specific transactions or
items objected to and the basis of such objections. Any recovery by Lessor shall
be limited to those items specifically objected to in writing by Lessor within
said 13 months. Lessor shall have the right to examine the books and records of
Lessee to the extent they pertain to the sale or other disposition of Lessee's
Solar Cells by means of the Leased Web Site. Such examination shall be made
during reasonable business hours, upon reasonable advance written notice, at the
regular place of business of Lessee where such books and records are maintained,
and shall be conducted on Lessor's behalf, at Lessor's expense, by Lessor or his
designee. Such examination shall not be made more frequently than annually,
unless Lessor discovers a material error in a statement, whereupon Lessor may
conduct an examination with respect to the next four quarterly statements
notwithstanding anything else contained herein. Moreover, not more than one
examination shall be made with respect to any statement rendered hereunder. With
respect to any statement previously rendered by Lessee, such examination shall
be permitted only for a period of 13 months from the date such statement was
mailed or delivered to Lessor. Lessor's examination shall be limited to those
records relating to the sale or other disposition of Lessee's Solar Cells by
means of the Leased Web Site and under no circumstances shall Lessor have the
right to examine records relating to Lessee's business generally.
ARTICLE III.
DUTIES OF LESSOR
A. Promptly after the execution of this Agreement, Lessor shall give to
Lessee full access to and possession of the hardware and software then being
used to operate and maintain the Leased Web Site and access to the benefit of
all agreements and contracts relating thereto to the extent that such access
will not result in the ability to terminate or assess a penalty thereunder.
Except upon expiration or termination of this Agreement, Lessor shall not during
the Lease Period reacquire possession of the foregoing.
B. Lessor shall not be under any liability or obligation in any manner
with regard to the operation or maintenance of the Leased Web Site. Lessee shall
have absolute control over and responsibility for the Leased Web Site during the
Lease Period, subject to all restrictions set forth herein. Lessor shall have no
obligations hereunder but to give to Lessee initial full access to and
possession of the Leased Web Site and not reacquire possession thereof until the
termination of this Agreement. Without any limitation on the foregoing, Lessor
shall have no obligations to do any of the following:
(1) configure, maintain or modify hardware or
software believed necessary for the operation of
the Leased Web Site;
(2) be responsible for the design of the features or
functions of the Leased Web Site;
(3) create, format or load content into the Leased Web
Site, or host, run, maintain or modify such content;
(4) maintain Internet connectivity for the Leased Web
Site;
(5) keep the Leased Web Site available for any period of
time;
(6) maintain redundant hardware or software as backup in
the event of the failure of, or damage to, all or any
portion of the Leased Web Site;
(7) assist with graphic design or content;
(8) assist with advertising or traffic promotion to the Leased
Web Site; or
(9) be responsible for the maintenance of security measures.
ARTICLE IV.
DUTIES OF LESSEE
A. Lessee shall assume all obligation, liability and expense concerning
possession of the Leased Web Site, and for its use, operation and condition
during the Lease Period. Lessee shall, at Lessee's expense, maintain the Leased
Web Site in good condition and operating order. Lessee agrees to continue the
operation of the Leased Web Site throughout the entire Lease Period.
B. Lessee hereby agrees to operate, maintain, and conduct Lessee's
business on, the Leased Web Site according to regularly accepted high standards
and will use its best efforts to create, maintain and promote a decent,
acceptable, respectable, tasteful and professional image and reputation for the
Leased Web Site. Lessee hereby agrees to consult and cooperate with Lessor, and
take under serious considerations suggestions made by Lessor, in this regard.
Any unresolvable disagreement regarding the effects on the image and reputation
of the Leased Web Site of Lessee's operation, maintenance and use of the Leased
Web Site or the Domain Name shall be submitted to arbitration in Dade County,
Florida pursuant to the rules of the American Arbitration Association,
Commercial Division.
C. Lessee shall be solely liable and responsible for obtaining,
maintaining, keeping and/or reobtaining any and all approvals, authorizations,
licenses, variances and/or permits from any private party and/or from any
governmental and/or quasi-governmental agencies required and/or suggested for
and/or in connection with the use of the Domain Name and the Leased Web Site.
D. Lessee is liable for, shall be required to pay on or before their
due dates, all sales taxes, use taxes, personal property taxes, and any other
taxes or governmental charges imposed on the Leased Web Site or the Domain Name
or based on the amount of lease payments to be made under this Agreement. Lessee
shall promptly notify Lessor and send Lessor copies of any notices, reports, and
inquiries received by Lessee from taxing authorities concerning delinquent
taxes, fees, charges, or other assessments. If any taxing authority requires
that a tax as described in this Section be paid to the taxing authority directly
by Lessor, Lessee shall, on notice from Lessor, pay to Lessor the amount of the
tax, together with the next lease payment. Lessee shall have the right at
Lessee's own expense to contest the validity or amount of any tax referred to in
this Section by legal proceedings promptly instituted and diligently conducted.
Lessee shall pay the tax demanded by the taxing authority before initiating any
proceedings. If taxes are reduced or cancelled, Lessee shall be entitled to the
refund for any taxes previously paid by Lessee, provided that Lessee is not in
default under any of the terms and conditions of this Lease.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
A. Lessor hereby represents and warrants that he is the owner of the
entire right, title and interest in and to the Leased Web Site and the Domain
Name, he has the sole right to enter into a lease of the scope herein provided,
and (to the best of his knowledge) the use of the Leased Web Site and the Domain
Name by Lessee will not infringe the rights of any other person.
B. LESSEE EXPRESSLY ACKNOWLEDGES THAT IT HAS DILIGENTLY EXAMINED THE
LEASED WEB SITE AND HAS DETERMINED THAT IT IS SUITABLE FOR LESSEE IN ALL
RESPECTS AND/OR FOR LESSEE'S INTENDED PURPOSES, AND LESSEE ACCEPTS THE LEASED
WEB SITE IN ITS CURRENT CONDITION, "AS IS" "WHERE IS". LESSEE EXPRESSLY
REPRESENTS AND WARRANTS UNTO LESSOR THAT IT HAS THE SKILL, JUDGMENT AND BUSINESS
ACUMEN NECESSARY TO MAKE SUCH DETERMINATIONS, AND LESSEE'S CONTINUED USE OF THE
LEASED WEB SITE SHALL BE DEEMED LESSEE'S ACCEPTANCE OF THE LEASED WEB SITE IN
ITS "AS IS, WHERE IS" CONDITION, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS
OR IMPLIED, INCLUDING ANY WARRANTY OF SUITABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
ARTICLE VI.
LIMITATIONS ON LIABILITY AND INDEMNIFICATION
A. Lessee shall be responsible for all content and graphics placed by
it on the Leased Web Site, and Lessor shall have no responsibility or liability
therefor.
B. Lessee assumes all risks relating to the interruption of the
availability of the Leased Web Site for any reason, and Lessor shall have no
responsibility or liability therefor.
C. Lessor shall indemnify Lessee and hold Lessee harmless from any
damages and liabilities (including reasonable attorneys' fees and costs) arising
from any breach of any agreement, representation or warranty made by Lessor
herein. Lessor's maximum liability to Lessee under this Agreement, regardless on
what basis liability is asserted, shall in no event exceed the total amount paid
to Lessor under this Agreement. Lessor shall not be liable to Lessee for any
incidental, consequential, punitive or special damages.
D. Lessee shall indemnify Lessor and hold Lessor harmless from any
damages and liabilities (including reasonable attorneys' fees and costs) (1)
arising from any breach of any agreement, representation or warranty made by
Lessee herein, (2) arising out of any use of the Leased Web Site or the Domain
Name, except to the extent that such use results in a claim for infringement
because of Lessee's use of the Leased Web Site (in its state on the Effective
Date) or the Domain Name, and Lessor knew or should have known that Lessee's use
of the Leased Web Site in such state or the Domain Name would result in the
infringement of the rights of another person, (3) arising out of any alleged
defects or failures to perform of the Lessee's Solar Cells or any product
liability claims or use of the Lessee's Solar Cells, or (4) any claims arising
out of advertising, distribution or marketing of the Lessee's Solar Cells.
ARTICLE VII.
INTELLECTUAL PROPERTY RIGHTS AND PROTECTION
A. The Leased Web Site and the Domain Name shall be deemed and shall
remain the property of Lessor. Lessee shall not have or at any time acquire any
right, title, equity, or other interest in the Leased Web Site or the Domain
Name, except the right to possession and use as provided for in this Agreement.
Lessee hereby agrees that it shall not at any time contest anywhere in the world
Lessor's ownership rights in the Leased Web Site or the Domain Name. Lessee
hereby agrees that it shall not at any time trademark, patent or copyright the
Domain Name.
B. Improvements in the Leased Web Site (an "Improvement") made by
Lessee shall be the exclusive property of Lessee. Lessee hereby grants to Lessor
a worldwide, royalty-free, perpetual license under all Improvements, together
with the right to sublicense others. Except with regard to Lessee's use of the
Improvements in connection with the Leased Web Site, Lessor's license shall be
exclusive. In the event Lessee does not wish to seek governmental protection of
any Improvement, it shall so notify Lessor prior to any public divulging thereof
and upon the request of Lessor, execute and procure the execution of any and all
applications and papers necessary or desirable to enable Lessor to seek
governmental protection and whatever assignments or transfer instruments are
necessary or required to effectuate ownership of the rights in Lessor in any and
all countries of the world which Lessor may elect. Any expense incurred in the
prosecution of such governmental protection by Lessor shall be borne by Lessor.
C. In the event that either party learns of imitations or infringements
of the Leased Web Site or the Domain Name or any item relating thereto, that
party shall notify the other in writing of the infringements or imitations.
Lessor shall have the right to commence lawsuits against third persons arising
from such infringement. In the event that Lessor does not commence a lawsuit
against an alleged infringer within 60 days of notification by Lessee, Lessee
may commence a lawsuit against the third party. Before the filing suit, Lessee
shall obtain the written consent of Lessor to do so, and such consent shall not
be unreasonably withheld. Lessor shall cooperate fully and in good faith with
Lessee for the purpose of securing and preserving Lessee's rights to the Leased
Web Site and the Domain Name. Any recovery (including, but not limited to a
judgment, settlement or licensing agreement included as resolution of an
infringement dispute) shall be divided equally between the parties after
deduction and payment of reasonable attorneys' fees to the party bringing the
lawsuit.
ARTICLE VIII.
LEASE PERIOD AND TERMINATION
A. The term of this Agreement (the "Lease Period") shall commence upon
the Effective Date and shall expire on midnight on December 31, 2050, unless
sooner terminated pursuant to a provision of this Agreement.
B. Lessee may terminate this Agreement at any time upon sixty (60)
days' prior written notice to Lessor.
C. If either party shall be in default of any obligation hereunder, or
shall have filed a petition of bankruptcy or reorganization, have had filed
against it an involuntary proceeding, be adjudged bankrupt, become insolvent,
have made an assignment for the benefit of creditors, or been placed in the
hands of a receiver, trustee in bankruptcy, receiver or liquidator, the other
party may terminate this Agreement by giving sixty (60) days' prior written
notice to the other party, specifying the basis for termination. If within sixty
(60) days after the receipt of such notice, the party who received notice shall
remedy the condition forming the basis for termination, such notice shall cease
to be operative, and this Agreement shall continue in full force.
D. This Agreement shall automatically terminate upon the termination of
that certain License Agreement of even date herewith between Lessor and Lessee,
pursuant to ARTICLE VIII, Sections B, C or D thereof.
E. Upon the termination of this Agreement, the following events shall
occur:
(1) all rights granted to Licensee under this Agreement shall
immediately terminate and revert to Licensor;
(2) Lessee shall give to Lessor full access to and possession of
the hardware and software then being used to operate and
maintain the Leased Web Site; and
(3) within 30 days after termination, Lessee shall furnish a final
written statement regarding the sale of Lessee's Solar Cells
from the date of the last such statement to the date of
termination and a final lease payment in accordance with
ARTICLE II, Section B hereof with regard to such sales.
F. The obligations under the following provisions of this Agreement
shall survive any termination of this Agreement:
(1) the lease payment and related provisions of ARTICLE II and
ARTICLE VIII, Sections E(3), relating to the final lease
payment;
(2) the tax provisions of ARTICLE IV, Section D regarding taxes
accruing prior to the date of termination;
(3) the limitation on liability and indemnification provisions of
ARTICLE VI;
(4) the intellectual property provisions of ARTICLE VII, Sections A and
B; and
(5) the miscellaneous provisions of ARTICLE IX.
ARTICLE IX.
MISCELLANEOUS
A. THIS AGREEMENT SHALL BE INTERPRETED AND CONSTRUED IN ACCORDANCE WITH
AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF FLORIDA.
B. Except as otherwise provided in the case of ARTICLE IV, Section B,
the parties consent to the exclusive jurisdiction and venue of the federal and
state courts located in Dade County, Florida in any action arising out of or
relating to this Agreement. The parties waive any other venue to which either
party might be entitled by domicile or otherwise.
C. This Agreement represents the entire understanding between the
parties, and supersedes all other agreements, express or implied, between the
parties concerning the Leased Web Site and the Domain Name. A provision of this
Agreement may be altered only by a writing signed by both parties.
D. The parties agree that if any part, term, or provision of this
Agreement shall be found illegal or in conflict with any valid controlling law,
the validity of the remaining provisions shall not be affected thereby. In the
event the legality of any provision of this Agreement is brought into question
because of a decision by a court of competent jurisdiction of any country in
which this Agreement applies, Lessor, by written notice to Lessee, may revise
the provision in question or may delete it entirely so as to comply with the
decision of said court.
E. The waiver of a breach hereunder may be effected only by a writing
signed by the waiving party and shall not constitute a waiver of any other
breach.
F. Nothing contained in this Agreement shall be construed to place the
parties in the relationship of agent, employee, franchisee, officer, partners or
joint ventures. Neither party may create or assume any obligation on behalf of
the other..
G. Any notices, requests, demands, or other communications herein
required or permitted to be given shall be in writing and may be personally
served, sent by United States mail, sent by an overnight courier who keeps
proper records regarding its deliveries, faxed or e-mailed. Notice shall be
deemed to have been given if personally served, when served, or if mailed, on
the third business day after deposit in the United States mail with postage
pre-paid by certified or registered mail and properly addressed, or if sent by
overnight courier as aforesaid with charges being billed to the sender, when
received by the party being notified, or if faxed, when the person giving the
notice receives a confirmation statement with all relevant details indicating
that the fax was properly received, or if e-mailed, when the person giving the
notice receives a confirmation statement with all relevant details indicating
that the e-mail was properly received. As used in this Agreement, the term
"business day" means days other than Saturdays, Sundays, and holidays recognized
by Federal banks. For purposes of this Agreement, the physical addresses, fax
numbers and e-mail addresses of the parties hereto shall be the physical
addresses, fax numbers and e-mail addresses as set forth on the signature pages
of this Agreement. Any party to be notified hereunder may change its physical
address, fax number and e-mail address by notifying each other party hereto in
writing as to the new physical address, fax number and e-mail address for
sending notices.
H. Time is of the essence.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have executed this Agreement in
duplicate on the date set forth above.
/s/ Lawrence F. Curtin
Lawrence F. Curtin
Address:_____________________________
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Fax no:______________________________
E-mail Address:_____________________________
PHOTOVOLTAICS.COM, INC.
By: /s/Harvey Judkowitz
Harvey Judkowitz, Treasurer
Address:_____________________________
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Fax no:______________________________
E-mail Address:_____________________________
