Loading...
HomeMy WebLinkAboutCODA AUTOMOTIVE, INC.INSURANCE NOT REQUIRED N-2011-156 WORK MlAY PROCEED CLERK OF COUNGL DATE. ? AN 1 9 2p12 VEHICLE FLEET TESTING AGREEMENT THIS AGREEMENT is entered into as of the 16th day of December, 2011 between CODA Automotive, Inc., a corporation organized and existing under the laws of the state of Delaware ("CODA"), and City of Santa Ana ("Evaluator"). WHEREAS, in order to assess the suitability of the 2012 model CODA sedan vehicle for the fleet buyer market, CODA desires to provide Evaluator with the Vehicles (defined below) in order that Evaluator may perform testing and analysis related to the quality, performance and suitability of the CODA vehicle. WHEREAS, Evaluator desires to operate the Vehicles, to perform the testing described herein, to assess suitability of the Subject Vehicles for fleet ownership and to report the results of the foregoing to CODA. CODA and Evaluator hereby agree as follows: 1. Subiect Vehicles and Term. CODA shall make the vehicles identified by the four (4) digit serial number and described on Exhibit A hereto (the "Vehicles") available to Evaluator for a period of 7-14 days; provided, however, that CODA may retrieve the Vehicles or replace any Vehicle at any time upon two (2) days notice to Evaluator. Evaluator understands that the Vehicles are not production level and that final validation testing and regulatory certification has not yet been completed. CODA shall retain ownership of the Vehicles at all times throughout the term of this Agreement and the performance of the Services (defined below). 2. Testine. Evaluator shall perform the testing, evaluation and reporting services as described in (a) the log book delivered with each Vehicle and (b) the testing report requests accessible to Evaluator on the CODA web portal or call center, in accordance with the specific instructions given to Evaluator upon commencement of the testing period (the "Services"). Evaluator will notify CODA when any Vehicle odometer has reached 7500 miles. 3. Testing Report. Evaluator will compile requested evaluation information in the log book for evaluation reporting and will return the completed log book to CODA upon expiration of the Term. In addition, Evaluator will complete regular testing report requests online through the CODA web portal or through the call center, as specified by CODA, on a weekly basis. In the event Evaluator will be testing a Vehicle for a period of less than one week, Evaluator will complete the regular testing report within 2 days of completing the testing. 4. Data Collection Device. The Vehicles may be equipped with a data collection device to capture various types of data required by CODA to evaluate the vehicle testing results. 5. Insurance. a. Evaluator agrees that it maintains and shall continue to maintain throughout the testing period statutory workmen's compensation as well as employer's liability insurance. b. CODA shall provide auto liability insurance for the Vehicles. 6. Maintenance. Evaluator shall perform all normal and routine maintenance on the Vehicles in accordance with CODA instruction. Evaluator shall notify CODA of any required maintenance or repair that is either high-frequency or outside of normal and routine maintenance. Evaluator shall notify CODA of any problem with the battery pack, and CODA will either repair or provide a replacement battery. Under no circumstances shall Evaluator attempt to repair pack or dissemble the battery pack. 7. Geographical and Use Limitation. Evaluator shall use the Vehicles solely for product evaluation and testing as contemplated in this Agreement and solely within the continental U.S. Evaluator will not use the Vehicles for rental, lease or any political purposes whatsoever. Evaluator will ensure that all drivers comply with all applicable traffic and safety laws. Evaluator will ensure the car is driven only in connection with testing and only by qualified employees or contractors who are licensed and insurable ("Authorized Drivers"). 8. Special Considerations. Evaluator understands that Vehicles may be pre-production prototypes and agrees to adhere to, and to ensure that all Authorized Drivers adhere to, each of the conditions set forth in the attached Exhibit B - Special Considerations. Evaluator further agrees to provide a copy of this Exhibit B to each Authorized Driver prior to the Vehicle being driven. 9. Excessive Vehicle Damaee. Evaluator agrees to exercise due care with its use of any Vehicle, returning the Vehicles to CODA in reasonably similar condition as when delivered to Evaluator, except for wear and tear contemplated by the testing. 10. Indemnification. Evaluator shall indemnify and hold harmless CODA from any and all loss, damage, claims, costs and expenses of every kind and nature, whether or not covered by insurance, that is caused by Evaluator's negligent use or operation of any Vehicle. This paragraph shall remain in effect notwithstanding the expiration of the term or the return of the Vehicles. CODA shall indemnify and hold harmless Evaluator from all loss, damage, claims, costs and expenses of every kind and nature, whether or not covered by insurance, .that is directly caused by a malfunction of any Vehicle and not caused by any negligence of the Evaluator or any of its drivers or agents. This paragraph shall remain in effect notwithstanding the expiration of the term or the return of the Vehicles. 11. Confidentiality. Evaluator agrees that all testing results, feedback and other information obtained from the testing and use of the Vehicles ("Confidential Information") is confidential and proprietary to CODA. Evaluator agrees to preserve and protect the confidentiality of the Confidential Information and all of its physical forms, whether disclosed before this Agreement is signed or afterward_ In addition, Evaluator will not disclose or disseminate the Confidential Information for its own benefit or for the benefit -2- of any third party. It is understood that said Confidential Information shall remain the sole property of CODA. Evaluator will not, during or subsequent to the term of this Agreement, use CODA's Confidential Information for any purpose whatsoever other than for the purposes set forth in this Agreement. The previously stated obligations of confidentiality do not apply to any information that: (i) is publicly known; (ii) is previously known to the recipient; or (iii) Evaluator had already developed prior to Evaluator's access to the Confidential Information, as evidenced by documents- Evaluator will not take or cause to be taken any physical forms of the Confidential Information (nor make copies of same) without CODA's written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party's request), Evaluator will return to CODA all copies of Confidential Information in tangible form. Despite any other provisions of this Agreement, the requirements of this section will survive termination of this Agreement. If Evaluator attempts to use or dispose of any Confidential Information or any of its aspects or components or any duplication or modification thereof in a manner contrary to the terms of this section, CODA will have the right, without the necessity of filing a bond or other security or proving actual damages, in addition to such other remedies that may be available to it, to injunctive relief enjoining such acts or attempts, it being acknowledged that legal remedies are inadequate. The employees of Evaluator who are engaged in the project shall execute CODA's standard form of confidentiality agreement. 12. Entire Agreement. This Agreement is the entire understanding between the parties regarding this subject matter, and supersedes any discussion, negotiation, agreement or understanding regarding that subject matter prior to the date this Agreement is finally executed as set forth below. This Agreement and the party's obligations arising under it may not be changed except by a writing signed by an authorized representative of each party. This Agreement binds and inures to the benefit of the parties and their respective legal representatives, successors and permitted assigns. 13. Governing Law. This Agreement is governed by and must be construed in accordance with the law of the State of California as if fully performed therein and without reference to its conflict of laws principles. [Signature page follows] -3- IN WITNESS WHEREOF, the parties have executed this Vehicle Fleet Testing Agreement as of the date first written above. CITY OF SANTA ANA By: Paul M. Walters, City Manager CODA AUTOMOTIVE, INC. By: ? ? Cd/ Attest: Maria D. Huizar, Clerk of Council Recommended for Approval: ?n? H?A 4? ? Francisco Gutierrez, Exec Dir - FMSA Approved as to Form: i aura Sheedy, Asst ity Attorney -4- EXHIBIT A VEHICLES Serial Number :6080 -5- EXHIBIT B Special Considerations [To be provided to each Authorized Driver] The Vehicles may be prototypes and may not have completed validation testing or regulatory certification, as such, it is essential that all Authorized Drivers adhere to the following conditions at all times when operating the Vehicle: (1) Do not drive in the Vehicle in an aggressive manner. (2) Do not allow a child requiring a child restraint system to be a passenger in the Vehicle. (3) Do not drive the Vehicle through standing water or heavy rains. -6- CODA AUTOMOTIVE. INC. NON-DISCLOSURE AGREEMENT This Non-Disclosure Agreement ([he "Agreement") is made and entered into as of the date last signed (the "Effective Date") by Coda Automotive, Inc., a Delaware corporation, (together with its subsidiaries and affilia[es_ "Coda") and [he party set forth in [he signature block ("Recipient"). 1. Purpose. The parties wish to explore a business opportunity of mutual interest and benefit ([he "Purpose"). In connection with the Purpose, Coda may disclose to Recipient certain confidential technical and business information that Coda desires to treat as confidential. 2. "Confidential Information" means any information disclosed by Coda to Recipient, either directly or indirectly in writing, orally, or by inspection of tangible objects (i) that Coda identifies as confidential or proprietary; or (ii) that reasonably appears to be confidential or proprietary because of legends or other markings, the circumstances of disclosure, or the nature of [he information itself, in either case including without limitation, historical and projected financial information, business models, information regarding suppliers, development plans and strategies, and marketing plans and strategies. Confidential Information may also include confidential or proprietary information that has been disclosed [o Coda by a third party, including information of any supplier to or contracting party of Coda which is disclosed pursuant hereto by Coda (or on behalf of Coda, including by such supplier or contracting party) which is permitted to be disclosed subject to confidentiality or non- disclosure understandings such as that contained herein. 3. Exceptions. Notwithstanding Section 2, Confidential Information shall no[ include any information which (i) is now, or hereafter becomes, through no act or failure to act on the part of Recipient, generally known or available to the public without breach of this Agreement by Recipient; (ii) was acquired by Recipient without restriction as to use or disclosure before receiving such information from Coda, as shown by Recipient's files and records immediately prior to the time of disclosure; (iii) is obtained by Recipient without restriction as to use or disclosure by a third party authorized to make such disclosure' or (iv) is independently developed by Recipient without use of or reference to Coda's Confidential Information, as shown by documents and other competent evidence in Recipient's possession. Por purposes of this Agreement, Confidential Information shall not be deemed to be publicly known merely because individual elements thereof are separately publicly known. 4. Permitted Use. Recipient may only use Coda's Confidential information in connection with [he Purpose for [he mutual benefit oY' both parties. Recipient shall not reverse engineer, disassemble or de-compile any prototypes, software or other tangible objects that embody Coda's Confidential Information unless written consent for such actions is received tram Coda. If such a prohibition is not permitted pursuant to applicable law, Recipient shall provide Coda written notice prior to undertaking any such reverse engineering, and shall give Coda a reasonable amount of time to provide any interface information required by law prior to commencing such reverse engineering. Recipient shall not make any copies of Coda's Confidential Information unless Coda previously approves the same in wri Ling. Recipient shall reproduce Coda's proprietary rights and confidentiality notices on any such approved copies, in the same manner in which such notices were set forth in or on the original. 5. Maintenance of Confidentiality. Recipient will maintain the confiden[i ality of Coda's Confidential information with at least the same degree of care that it uses to protect its own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. Recipient will not disclose any of Coda's Confidential Information [o employees or to any third parties except to Recipient's employees who have a need to know such information in connection with the Purpose and have agreed to abide by non-disclosure terms a[ least as protective of C'oda's Confidential Information as those set forth herein. 6. Disclosure Required by Law. In the event Recipient is required by law or a valid and effective subpoena or order issued by either a court of competent jurisdiction or a governmental body to disclose any of Coda's Confidential Information. Recipient shall promptly notify Coda in writing of the existence, terms, and circumstances surrounding such required disclosure so [hat Coda may seek a protective order or other appropriate relief from the proper authority. Recipient shall cooperate with Coda in seeking such order or other relief. If Recipient is nonetheless required to disclose Coda's Confidential Information, it will furnish only that portion of the Confidential Information that is legally required and will exercise all reasonable efforts to obtain reliable assurances that such Confidential Information will be treated confidentially to the extent possible. 7. Duration of Protection. The obligations set forth herein with respect to Coda's Confiden[i al Information shall be protected by this Agreement until such information is no longer Confidential Information because it is covered by an exception set forth in Section 3. 8. Term. This Agreement shall be effective as of the EtTective Date and shall remain in effect for a period of one (1 ) year. Thereafter, the Agreement shall automatically renew for additional automatic one (1) year terms if any Confidential Information has been exchanged within three (3) months preceding the renewal date. Otherwise, the agreement shall expire. Upon expiration or termination of this Agreement, [his Agreement shall survive to the extent necessary to protect Confidential Information exchanged during the term of the Agreement pursuant to Section 7. 9. No Oblieation. Nothing herein shall obligate either party to purchase, sell, license, transfer, or otherwise dispose of any technology, services or products, or to engage in any other business transaction. Each party reserves the right, in its sole discretion, to terminate the discussions concerning the Purpose at any time. 10. Ownership and IP. All of Coda's Confidential Information shall remain the sole property of Coda. Nothing in this Agreement is intended to grant any rights to Recipient under any patent, copyright, trademark or other intellectual property tch _? - right of Coda, nor shall this Agreement gran[ Recipient any rights in or to Coda's Confidential Information except as expressly se[ forth herein; provided, however, that in the event that Recipient and Coda enter into a commercial relationship pursuant [o which Recipient modifies or improves any of its products for incorporation into a Coda electric vehicle, then Recipient agrees that Coda will be granted a perpetual worldwide royalty free license (with the right to modify, improve and sublicense) in and to any improvements, enhancements, or modifications made by Recipient in connection with such engineering or manufacturing, in existence prior to modifications, enhancements, or improvements- 11. No Warranty. ALL CONFIDENTIAL INFORMATION IS PROVIDED "AS LS_" CODA MAKES NO WARRANTLES, EXPRESS, IMPLIED OR OTHERWISE, REGARDING THE ACCURACY, COMPLETENESS OR PERFORMANCE OF THE CONFIDENTIAL., INFORMATION. 12. Return of Materials. All documents and other tangible objects containing or representing Coda's Confidential Information, and all documents and things prepared or developed by Recipient in connection with or pursuant to the Agreement including, but not limited to, the Intellectual Property ("Work Product"), shall remain [he exclusive property of Coda_ Coda shall have the right to use such Work Product for any purpose without any additional compensation to Recipient. All original and copies thereof that are in the possession of Recipient shall be promptly returned to Coda upon Coda's request. 13. No Export. Recipient shall not export, directly or indirectly, any technical data acquired from Coda pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. 14. Remedies- Recipient agrees [ha[ its obligations hereunder are necessary and reasonable in order to protect Coda and Coda's business, and expressly agrees that monetary damages would be inadequate to compensate Coda for any breach by Recipient of any covenants and agreements set forth herein. Accordingly, Recipient agrees and acknowledges that any such violation or threatened violation will cause irreparable injury to Coda and that, in addition to any other remedies that may be available, in law, in equity or otherwise, Coda shall be entitled to obtain injunctive relief against the threatened breach of this Agreement or the continuation of any such breach, without the necessity of proving actual damages or posting bond. I5. Miscellaneous- This Agreement shall be governed by the laws of the State of California, without reference to its conflict of laws principles. Any suit to enforce this Agreement shall be brought exclusively in Orange County, California and the parties hereby submit to the personal jurisdiction of such courts and waive any venue objection. "Phis document contains the entire agreement between the parties with respect to [he subject matter hereof. Any failure [o enforce any provision of this Agreement shall not constitute a waiver thereof or of any other provision hereof. This Agreement may no[ be amended, nor any obligation waived, except by a writing signed by both parties. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of [his Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution. Neither party may assign this Agreement without the express written consent of the other party, and any prohibited assignment shall be void; provided that Coda may assign [his Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets. This Agreement shall bind and inure [o the benefit of the parties and their successors and permitted assigns. This Agreement may be executed in two identical counterparts, each of which shall be deemed to be an original and all of which taken together shall be deemed to constitute the Agreement when a duly authorized representative of each party has signed a counterpart. IN WITNESS WHEREOF, [he parties have executed [his Agreement as of the Effective Date. Coda Automotive, Inc. /.lt941 J1 ?lA?l? (S?gna[ure) ?.?1 l?? ???Ttyc?1= (Pont Name) .l Its ?'`?? ? 1 ee i (Title) 2340 S. Hairfax Avenue l..os Angeles, CA. 90016 l - ls- Zco O-F Sat?,rl-ta ?g mpany - iFOn behalf of an en ' y) (Sign u? (Pr- [Name) Pc3tu\ M ylo.l-?e,,rs (Tithe - if on behalf of an en[iry) ?r-rl.zt I m C .?.r M av? aa? P r (Address) 20 C'?v5 c C?.v??t'ax- ? 1g2c2 (City, Stale, Lip) sc,.?a ?ttia , C? ?to27C?2 (Date) ? ? ? r? - ? z -2-