commercializationagreement.htm


    
      
         


      

      
         


        
          

        

      

      
         


      

    


    COMMERCIALIZATION
AGREEMENT

    


    This Commercialization Agreement (the
“Agreement”) is entered
into as of the 1st day of February, 2010 (the “Effective Date”), by and
between WS Packaging Group, Inc., a Wisconsin corporation located at 2571 S.
Hemlock Road, Green Bay, Wisconsin  54229 (“WSPG”), and Ecology Coatings,
Inc., a Nevada corporation located at 2701 Cambridge Court, Suite 100, Auburn
Hills, Michigan  48326 (“Ecology”).

    


    WHEREAS, WSPG manufactures and sells
labels, packaging and other printed products; and

     

    WHEREAS, Ecology develops,
manufactures, and sells industrial coatings including, without limitation, the
Products (as defined below); and

    


    WHEREAS, on the basis described below,
Ecology wishes to sell to WSPG, and WSPG wishes to purchase from Ecology, the
Products.

    


    NOW, THEREFORE, based on the foregoing
and in consideration of the mutual covenants and undertakings set forth herein,
and other good and valuable consideration the receipt and legal sufficiency of
which is hereby acknowledged, WSPG and Ecology agree as follows:

    


    1. Relationship/Products.  WSPG has
requested Ecology to use its coatings technology to develop and manufacture
certain industrial coatings that will enhance the performance of, and provide
low cost solutions for, multiple label applications (such coatings to be
referred to as the “Products”).  WSPG and Ecology will work together
to develop and test such Products until they are accepted for production by WSPG
and WSPG’s customers.  WSPG shall use its standard purchase order form
to order Products from Ecology.  WSPG’s Terms and Conditions of
Purchase (which are available at http://www.wspackaging.com/poterms)
shall govern all purchases of Product by WSPG.  To the extent of any
inconsistency between this Agreement and WSPG’s Terms and Conditions of
Purchase, this Agreement shall control.  In the event that WSPG makes
a substantial change to its Terms and Conditions of Purchase, WSPG shall provide
Ecology with thirty (30) days advance notice of the change.  Payment
terms shall be 2% twenty (20) days, EFT payment thirty (30) days and net sixty
(60) days.

    


    2. Ownership.  Ecology
shall own all of the intellectual property rights associated with the
Products.  WSPG may not: (i) copy, reproduce, modify, transmit,
broadcast, republish, upload, distribute publicly or create derivative works
based on the Products; or (ii) reverse engineer, decompile, deformulate,
disassemble or otherwise reproduce the Products.

    


    3. Representations and
Warranties:  WSPG represents and warrants that:

    


    
      	
              a.  

            	
              it
      has the full legal right to buy Products from Ecology in accordance with
      the terms and conditions set forth in this
  Agreement;

            


    

    


    
      	
              b.  

            	
              the
      products for which the coatings are used shall comply with all applicable
      federal, state and local laws, rules, regulations and
      ordinances.

            


    

    


    4. Representations and
Warranties.  Ecology represents and warrants that:

    


    a. it owns
the technology incorporated into or embodied by the Product, and has the full
legal right to sell Products to WSPG in accordance with the terms and conditions
set forth in this Agreement;

    


    b. it and
the Products shall comply with all applicable federal, state and local laws,
rules, regulations and ordinances; and

    


    c. the
Products which have been approved for production are of merchantable quality;
free from defect; fit for the particular purpose intended by WSPG; and strictly
conform to and comply with the product specifications agreed to by the parties
for the intended use or application of each Product. Development and prototype
Products are excluded from this provision.

    


    5. Ecology
Indemnification.  Ecology agrees to defend, indemnify and hold
WSPG harmless from and against any and all claims, actions, demands, damages,
liability, losses, fines, penalties, costs and expenses (including reasonable
attorneys’ fees) to the extent relating to or arising out of (i) a breach of
this Agreement by Ecology, its employees, agents, representatives, or
contractors; (ii) the negligence or willful misconduct of Ecology, its
employees, agents, representative, or contractors; or (iii) a claim alleging
that a Product infringes and/or misappropriates another’s patent, trademark,
copyright, trade dress, trade secret or other intellectual property
right.

    


    6. WSPG
Indemnification.  WSPG agrees to defend, indemnify and hold
Ecology harmless from and against any and all claims, actions, demands, damages,
liability, losses, fines, penalties, costs and expenses (including reasonable
attorneys’ fees) to the extent relating to or arising out of (i) a breach of
this Agreement by WSPG, its employees, agents, representatives, or contractors;
(ii) the negligence or willful misconduct of WSPG, its employees, agents,
representative, or contractors; or (iii) a claim alleging that WSPG’s product(s)
infringe and/or misappropriate another’s patent, trademark, copyright, trade
dress, trade secret or other intellectual property right, except if such claim
is caused by a Product.

    


    7. Insurance.  During
the term of this Agreement, Ecology shall maintain, at its sole cost and
expense, the following insurance coverage:

    


    a. Commercial
General Liability, including contractual liability, with limits of at least
$1,000,000 per occurrence, and $1,000,000 products
completed/aggregate.

    


    b. Worker’s
Compensation and other legally required employer’s insurance in accordance with
and meeting all requirements of applicable state and federal laws.

    


    8. Research and
Development.  At WSPG’s request, Ecology will provide research
and development services on a time and material basis, with scope and hourly
rates to be agreed upon by the parties in writing.  Ecology’s
warranties in this Agreement shall not apply to Products provided by Ecology
until they are approved for production by both parties.

    


    9. Termination.  Either
party may terminate this Agreement upon sixty (60) days’ prior written notice to
the other party.

    


    
      	
              10.  

            	
              Miscellaneous
      Provisions.

            


    

    


    a. Notices.  Any
notice required or permitted pursuant to this Agreement shall be in writing
delivered by hand, overnight courier, telecopy, facsimile, or certified or
registered mail to the address first set forth above and shall be effective upon
receipt.

    


    b. Independent
Contractors.  Ecology is an independent
contractor.  Nothing contained in this Agreement will create a
partnership, joint venture, employer-employee, principal-agent or other similar
relationship.  Neither party is authorized to sign, contract, deal or
otherwise act in the name of, or on behalf of, the other party.

    


    c. Survival.  The
parties’ obligations under this Agreement which, by their nature, would continue
beyond the termination, cancellation or expiration of this Agreement including,
without limitation, the obligations found in Sections 3,4, 5 and 6, shall
survive the termination, cancellation or expiration of this
Agreement.

    


    d. Assignment.  The
parties shall not assign or transfer their respective rights and obligations
under this Agreement without the prior written consent of the other party, such
consent not to be unreasonably withheld.

    


    e. Successors and
Assigns.  This Agreement shall be binding upon, and inure to
the benefit of, the parties and their respective successors and assigns (as such
are permitted).

    


    f. Non-Waiver.  No
delay or failure in exercising any right under this Agreement, nor any partial
or single exercise of such right, shall constitute a waiver of that right or any
other right.

    


    g. Invalidity of
Provisions.  If any term or provision of this Agreement or the
application thereof to any person, entity or circumstance shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or the application
of such term or provision to any person, entity or circumstance other than those
to which it is held invalid or unenforceable, shall not be affected
thereby.

    


    h. Headings.  It
is understood and agreed that the headings are inserted only as a matter of
convenience and for reference and, in no way, define, limit, or describe the
scope or intent of this Agreement, nor in any way affect this
Agreement.

    


    i. Governing
Law.  This Agreement shall be construed in accordance with the
substantive laws of the State of Wisconsin, without regard to the application of
any choice of law principles.

    


    j. Force
Majeure.  Neither party shall be liable to the other party for
any failure or delay in performing its obligations hereunder to the extent that
such failure or delay is caused by an event beyond the affected party’s
reasonable control including, without limitation, acts of God; terrorism, war or
hostilities; riots or other civil unrest; acts or omissions of governmental
authorities; or fire, explosion or other such casualty.

    


    k. Remedies.  The
parties’ rights and remedies set forth in this Agreement shall be considered
cumulative, and shall be in addition to any and all other rights and remedies
available to each party at law or in equity.

    


    l. Entire
Agreement.  This Agreement constitutes the entire agreement and
understanding between the parties with respect to the subject matter hereof, and
supersedes and replaces any and all prior negotiations, understanding and
agreement (either verbal or written) between the parties concerning the subject
matter hereof.  For clarification purposes, this Agreement does not
supersede the Confidential Information/Sample Agreement that was entered into
between the parties on February 18, 2008.

    


    m. Counterparts.  This
Agreement may be executed in counterparts, each of which will be deemed an
original and all of which together will constitute one and the same
instrument.  The counterparts may be delivered by electronic or
facsimile transmission.

    
 

    


    


    IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.

    


    


    WS
PACKAGING GROUP, INC.

    


    By:  /s/ Scott Fisher                                                         

    Scott Fisher

    Chief Operating Officer

    


    ECOLOGY
COATINGS, INC.

    


    By:  /s/ Robert G.
Crockett                                                      

    


    Printed
Name:  Robert G. Crockett

    


    Title:  CEO


    
      
        
          Commercialization
Agreement Final