mPhase Technologies, Inc.: Exhibit 10.56 - Prepared by newsfilecorp.com



  

  Exhibit 10.56

  



	
    	
    mPhase Technologies Inc




1.1 Company Background 

1.1.1 

EaglePicher
Profile 


EaglePicher Technologies, LLC (EPT), an EaglePicher company,
is a world leader in custom and standardized power solutions for the extreme
environments of aerospace and military applications as well as medical and
commercial applications. The company specializes in design and manufacture of
battery cells, battery packaging, battery management systems (BMS), analysis,
environmental testing, and energetic devices. 

Active in battery development and testing since 1922, EPT has
the most experience and broadest capability in battery electrochemistry of any
battery supplier. Headquartered in Joplin, Missouri, EPT employs approximately
850 employees. The company currently maintains nine manufacturing facilities in
Missouri, Kansas, Canada and Germany. EPT manufacturing facilities comprise
approximately 500,000 square feet. EPT is certified with both ISO 9001:2000 and
AS9100B standards. EPT is one of the three operating units of the EaglePicher
Corporation (EPC). EaglePicher Corporation (EPC) is the parent company of
Wolverine Advanced Materials, LLC, EP Minerals, LLC, and EaglePicher
Technologies, LLC. The products and services of the operating units other than
EPT include precision machined components, vibration damping, sealing materials,
and diatomaceous earth products for automotive, specialty materials, and
filtration industries. 


1.1.2 

Company
Experience 


Founded in Cincinnati, Ohio in 1843, EaglePicher has a rich
heritage of technological leadership. Among these are the introduction of the
transistor in conjunction with Bell Labs in 1947, EPT silver zinc batteries
taking a critical role returning the Apollo 13 to the earth safely in 1970, and
the introduction of the world’s smallest batteries for implantable medical
devices in 2007. Headquartered in Dearborn, Michigan, EPC employs approximately
2,800 people worldwide. EPC is a United States (U.S.) company registered in the
State of Delaware. EPT’s capabilities in product development and production
demonstrate excellent levels of product assurance and reliability. EPT has
attained prime supplier status for major military and aerospace battery programs
by producing high quality, reliable products. Many of these products are still
in production today and receive support and expertise from the seasoned
professionals who worked on the programs from their inception. Table 1 lists
EPT’s functional application areas. EPT has supplied in excess of 1,000
different part numbers to 250 military, aerospace and commercial customers and
produces more than 25 different electrochemical systems, as well as energetic
devices, flares, battery packs and electronic sub-assemblies. Active in battery
development and testing since 1922, EPT has the most experience and broadest
capability in battery electrochemistry of any battery supplier. EPT has over 50
years of experience in reserve battery development for military and aerospace
programs. 

 


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    Applic ations	
    
    Primary
	
    
    Reserve
	
    
    Secondary  
    
	
    
    EPT Cell
	
    
    Packaging
	 	
    Applications	
    
    Primary 
	
    
    Reserve
	
    
    Secondary
	
    
    EPT Cell
	
    
    Packaging

	
    Aircraft Electronics	
    X	
     	
    X 	
    X 	
    X 	 	
    Medium Caliber	 	
    X	
     	
    X	
     
	
    Aircraft Memory Backup	
    X	
     	 	
    X 	 	 	
    Microprobes	
    X	 	
     	
    X	
     
	
    Aircraft Power	
     	
    X	 	
    X 	 	 	
    Planetary Probes	 	
    X	
     	
    X	
     
	
    Air-to-Air Missiles	
     	
    X	 	
    X 	 	 	
    Return Capsules	
    X	 	
     	
    X	
     
	
    Air-to-Ground Missiles	
     	
    X	 	
    X 	 	 	
    Safe and Arm Devices	 	
    X	
     	
    X	
     
	
    Anti Ballistic Missiles	
     	
    X	 	
    X 	 	 	
    Satellites	
     	 	
    X	
    X	
    X
	
    Communications	
    X	
     	 	
    X 	 	 	
    Shuttle	
    X	 	
     	
    X	
    X
	
    Conventional Munitions	
     	
    X	 	
    X 	 	 	
    Small Caliber/Infantry Weapon	
    X	 	
     	
    X	
    X
	
    Countermines	
     	
     	 	
    X 	 	 	
    Smart Munitions	
    X	 	
     	
    X	
     
	
    Crew Served Sensors	
     	
     	 	
    X 	 	 	
    Sonobouys	
    X 	
    X	
     	
    X	
     
	
    Cruise Missiles	
     	
    X	 	
    X 	
    X 	 	
    Strategic Missiles	 	
    X	
    X	
    X	
     
	
    Dispensers	
     	
     	 	
    X 	 	 	
    Submarines	
     	 	
     	
    X	
     
	
    Flight Instrumentation	
    X	
     	
    X 	
    X 	
    X 	 	
    Torpedos	
    X 	
    X	
     	
    X	
     
	
    Flight Termination	
    X	
    X	
    X 	
    X 	
    X 	 	
    Towable Arrays	
    X	 	
     	
    X	
     
	
    Free Fall Bombs	
     	
    X	 	
    X 	 	 	
    Unguided Rockets	 	
    X	
     	
    X	
     
	
    Fuzes	
     	
    X	 	
    X 	 	 	
    Unmanned Air Vehicles	
     	 	
    X	
     	
    X
	
    Gun Projectiles	
     	
    X	 	
    X 	 	 	
    Unmanned Ground Vehicles	
     	 	
    X	
    X	
    X
	
    Impactors	
    X	
     	 	
    X 	 	 	
    Unmanned Undersea Vehicles	
     	 	
    X	
     	
    X
	
    Laser Guided Bombs	
     	
    X	 	
    X 	 	 	
    Warheads	 	
    X	
     	
    X	
     
	
    Launch Vehicles	
     	
    X	
    X 	
    X 	 	 	
    Weapon Aiming & Fire Control	 	
    X	
     	
    X	
     



Table 1 EPT Functional Application Areas 


1.2 Program Management 


1.2.1 

Project Management Team 


This project will maintain a program organization structure.
The program will be under the supervision of a Program Manager (PM) who has
total responsibility for all efforts. Other engineering and management personnel
including an Engineering Manager, Engineering Leads, Program Engineer, Senior
Quality Specialist, Contract Administrator and Production Supervisor support the
PM. The team also contains Chemists, Electrical Engineers, Mechanical Engineers
and Engineering Technicians. The PM utilizes all program team members to support
the program. 


1.2.2 

Program Manager 


The Program Manager (PM) is responsible for complete
oversight of the program work effort and supports negotiations and contract
requirements. The PM serves as EPT’s liaison to the customer. The PM monitors
the program progress on schedule and costs and drives the resolution of all
technical issues that may arise. The PM ensures the delivered product is fully
compliant with the customer’s product specification and SOW. The PM reports the
program status to the customer. 

 


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1.2.3 

Program Engineer 


The Program Engineer reports to the Engineering Manager/Lead
and supports Contracts, Operations, Quality & the Customer. The Program Engineer
is responsible for designing the product, writing and checking production
documentation, ordering parts according to schedule, participating in all
program reviews as well as performing any required analysis for the program. For
the Customer, the Program Engineer retrieves and presents any technical data,
translates all customer requirements into written procedures, and implements
customer directed changes to ensure a conforming product. The Program Engineer
has the responsibility to inform the customer through the program manager and
contracts of possible problems (either to the product or to the safety of
operators) relating to their requirements. 


1.2.4 

Senior Quality Specialist 


The Quality Engineer reviews all inspection procedures and
documentation prior to publication. The Quality Engineer monitors hardware
production and testing for anomalous conditions and compiles the End Item Data
Package for the customer. The Quality Engineer supports the resolution of
technical issues that may arise during product manufacture and testing. The
Quality Engineer serves as the liaison to the customer’s quality assurance
representative(s). 


1.2.5 

Contract
Management 


The Contract Administrator interacts with all levels of
program management and other internal functional disciplines. The Contract
Administrator communicates with the customer in the negotiation, structure,
review, acceptance and flow-down of all proposal and contractual requirements.
The Contract Administrator advises and consults with operations, program
management, engineering and other functional disciplines to resolve contractual
and proposal problems in a timely manner. The Contract Administrator reviews,
interprets and approves contracts, modifications and change orders per
established EPT standards. 


2.0 Technical 



2.1.1 


Battery Description 


*



2.1.2 


Battery Outline Drawing 


*



2.1.3 


Battery Electrical Performance


*

3.0 Cost


3.1.1 

Program Cost Summary

*


 

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3.0 Cost



3.1.2 


Standard Terms and Conditions 

1. 



PARTIES AND SCOPE OF WORK. 
These Standard Terms and Conditions for the Sale Goods and Services
("Agreement") is by and between EaglePicher Technologies, LLC, ("EPT"), a
Delaware limited liability company, its subsidiaries and affiliates, ("Seller"),
and the party contracting to purchase Seller’s goods and services ("Products")
hereunder ("Buyer"). Buyer represents and warrants to Seller that Buyer has the
authority and right to enter into this Agreement without breaching or violating
any fiduciary, contractual, statutory, or other legal obligations. This
Agreement is for the sole benefit of the parties hereto and not for the benefit
of any third person, firm, corporation or other entity, and nothing contained
herein shall be construed to create any rights benefits, remedies, obligations,
or liabilities for any third party under this Agreement.


2. 



GENERAL. This Agreement,
along with Seller’s proposal or quotation, Seller’s catalogs, and Seller’s
Acknowledgement, shall be the only terms and conditions applicable to the sale
of Seller’s Products. Seller shall furnish its Products to Buyer, subject to the
terms and conditions as set forth herein. Upon acceptance, Buyer shall
incorporate or otherwise acknowledge in Buyer’s purchase order or contract, the
terms and conditions contained in this Agreement without alteration. In the
event of a conflict between the terms and conditions of this Agreement and the
terms and conditions contained in Seller’s Confirmation or Acknowledgment or any
other conflict, the terms and conditions contained in this Agreement, together
with any special provisions contained in Seller’s proposal, if any, shall
control. By accepting the Product, Buyer agrees to be bound by and comply with
all terms and conditions contained in this Agreement, including any supplements
thereto, and all specifications and other documents referred to herein. Seller
hereby rejects any purchase order, acknowledgement, counteroffer, other
document(s), or any other attempt by Buyer, which contain terms and conditions
that are different than, inconsistent with, or in addition to the terms and
conditions contained in this Agreement.


3. 



DELIVERY AND TITLE. A). The
parties agree that any sales transactions are deemed to have occurred in the
state, province, or location where Seller’s Products are manufactured. Delivery
of Products shall be FOB Origin unless otherwise agreed to in writing by both
parties. Unless otherwise specified, all work is to be packed in accordance with
EPT’s commercial practices. Buyer shall arrange for and pay all shipping and
transportation costs. Title to and risk of loss or damage shall pass to Buyer
upon delivery. Seller shall deliver the Products in accordance with its
Confirmation Notices or Acknowledgements, or other 
mutually agreed upon schedules. Buyer recognizes
that U.S. Government implementation of the Defense Priorities and Allocation
System (DPAS) may adversely impact the agreed upon schedule and such DPAS
implementation will not be used as a basis for default. Seller shall not be
responsible for failure or delay in, when such failure or delay is due to any
cause beyond Seller’s reasonable control, including but not limited to, the
reasons set forth in Article 9, Force Majeure below. In the event of any such
delay, Seller shall have such additional time as reasonably necessary to deliver
the Products. 

 


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4. 


EXPORT LAWS AND LICENSING. 
Buyer shall be responsible for timely obtaining and maintaining any required
government authorizations, including but not limited to, export or import
licenses, and shall provide such documentation to Seller upon request. The
parties shall assist each other when such help is reasonably possible to arrange
for export shipment. Seller shall not be liable if any authorization of any
government is delayed, denied, revoked, restricted or not renewed, and Buyer
shall not be relieved thereby of its obligations to pay Seller for the Products
ordered or any other charges that are Buyer’s obligation hereunder. All
shipments under this Agreement shall at all times be subject to the export
control laws, rules, regulations, and any amendments thereto, of the United
States of America. Buyer shall comply with all U.S. export laws, rules,
regulations, and any amendments thereto, and International Traffic-in-Arms
Regulations ("ITAR"), and shall not make any disposition of U.S.A.-origin
Products purchased from Seller, by way of trans-shipment, re-export, diversion
or otherwise, other than in and to the ultimate country of destination specified
on Buyer’s order or declared as the country of ultimate destination on Seller’s
invoices, except as said laws and regulations may expressly permit. Buyer shall
indemnify, defend and hold Seller harmless from any and all claims, losses,
penalties or other damages that may result, directly or indirectly, from Buyer’s
failure to comply with any U.S. laws, including but not limited to U.S. export
control laws. 


5. 


CHANGES AND ASSIGNMENT.
Seller may, in Seller’s sole discretion and without Buyer’s consent, make
changes in the Products or in processes that do not affect form, fit or
function. All other changes or assignments require the prior written consent of
both parties. However, Seller shall have no obligation to make changes to any
Products previously delivered to Buyer. Seller may assign this Agreement, in
whole or in part to any of its wholly owned subsidiaries, and may assign its
account receivables, without Buyer’s written consent. 


6. 


QUALITY CONTROL, INSPECTION, AND
ACCEPTANCE OF PRODUCTS. Seller shall manufacture any goods in accordance
with Seller’s own quality control processes and procedures. Buyer’s inspection
of goods or services covered under this Agreement or in Seller’s quotation shall
be made at the Buyer’s facility and at Buyer’s expense. Buyer shall notify
Seller within thirty (30) calendar days after delivery of any damage,
discrepancy, or nonconformity, other than quantity, in the Products. Buyer’s
failure to inspect or failure to timely notify Seller of any damage,
discrepancy, or nonconformity shall be deemed a waiver of any and all such
claims and shall relieve Seller from its obligations and any liability.
Regardless, in the event that the Products do not conform to the requirements of
this Agreement or a purchase order after final acceptance, Seller’s sole
obligation and liability, and Buyer’s sole remedy, shall be limited to the
provisions set forth in Article 11, Seller’s Warranty, below. 


7. 


QUANTITY. Seller’s weights
and quantity counts taken at the shipping point shall govern. Buyer hereby
waives any claims concerning weight or quantity excesses or shortages, unless
Buyer notifies Seller in writing of any such discrepancy within ten (10)
calendar days after the date of delivery. 


8. 


PAYMENT. Payment terms are
net twenty (20) calendar days from the date of Seller’s invoice. Payment terms
are contingent on Buyer’s satisfactory credit rating. 


9. 


EXCUSABLE DELAYS (FORCE MAJEURE).
Following the occurrence of an event, circumstance or condition beyond the
reasonable control of either party, including but not limited to, acts of God,
actions by any government authority, governmental priorities, strike, work
slowdown or other labor unrest, shortage of supplies or raw materials, fires,
floods, windstorms, explosions, riots, natural disasters, wars, acts of
terrorism, or sabotage, either party shall have the right, by written notice, to
suspend work or make changes in delivery schedules for Seller’s goods or
services to be provided under this Agreement, without liability to either party.
Seller shall promptly notify Buyer when an excusable delay has occurred or when
Seller reasonably believes that such the occurrence of an excusable delay is
inevitable. If the work suspension or any material change in delivery schedule
lasts more than ninety (90) calendar days, either party may terminate this
Agreement or an individual purchase order for convenience without liability by
providing written notice to the other party within two (2) business days after
the expiration of such ninety (90) day period. 

 

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10. 


SALES AND USE TAXES. Seller
shall only be responsible for the payment of income taxes and gross receipt
taxes, if any, derived from the sale of its Products. Buyer shall be responsible
for the payment of any and all other taxes, including but not limited to sales
taxes, use taxes, duties, licenses, fees, or other charges of any nature levied
in connection with the sale, use and/or delivery of Products under this
Agreement. Upon Seller’s request, Buyer shall provide to Seller evidence of
exportation or other evidence of tax or duty exemption. If Seller, for any
reason, pays for any taxes, duties, licenses, fees, or other charges for which
Buyer is responsible, Buyer shall promptly reimburse Seller for such payment,
along with any other expenses related thereto, upon receipt of Seller’s
invoices. This provision shall survive termination of this Agreement. 


11. 


SELLER’S WARRANTY. Seller
warrants that, from the date of delivery and for a period of twelve (12) months
thereafter, the Products shall be free from defects in material and workmanship,
provided that Buyer gives notice to Seller of any such defect within fifteen
(15) days of discovering the defect and provides the Product to Seller for
Seller’s inspection to determine the validity of the warranty claim. Seller’s
obligation under this Warranty shall not apply to any Product or part thereof,
which: (a) Buyer does not properly store, install, use, or maintain; (b) Buyer
modifies, other than pursuant to Seller’s written approval or instructions, if
any, or subjects to testing not approved in writing by the Seller; (c) Buyer has
subjected to any kind of misuse, detrimental exposure; (d) Buyer has used the
Product in a manner that is inconsistent with or beyond its intended purpose; or
(e) has been involved in an accident. Seller’s sole obligation and liability
under this Agreement shall be limited to the repair or replacement of the
Product, or the refund of the purchase price at the Seller’s sole option. The
warranty period on the replacement part shall be the unexpired portion of the
warranty on the part being replaced. For Products that are used in space or in
launches, the warranty period shall expire within the twelve (12) month period
stated above, or upon launch of the end item, whichever is sooner. As used
herein, the term "launch" means the start of the main engine ignition sequence
of a launch vehicle. This Article sets forth the sole and exclusive remedies for
claims based upon defects or nonconformity of the Products, whether the claim is
on contract, warranty, tort (including negligence), strict liability, or
otherwise. EXCEPT AS PROVIDED IN THIS ARTICLE, THE FOREGOING WARRANTIES ARE IN
LIEU OF ALL OTHER WARRANTIES, AND SELLER MAKES NO OTHER WARRANTIES WHETHER
WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. 

12. 


INDEPENDENT CONTRACTOR RELATIONSHIP.
Seller is an independent contractor in all its operations and activities
hereunder. The employees used by Seller to perform work under this contract
shall be seller’s employees exclusively without any relation whatsoever to
Buyer. Each Party shall be responsible for any costs or expenses including
attorney’s fees, all expenses of litigation and/or settlement, and court costs,
arising from any act or omission of such party, its officers, employees, agents,
suppliers, or subcontractors at any tier, in the performance of any of its
obligations under this Agreement, provided, however, that EPT shall not be
responsible for any such costs or expense arising from any act or omission of
Buyer or Buyer’s officers, employees, agents, suppliers, or subcontractors at
any tier. 

13. 


LIMITATION OF LIABILITY. The
total, cumulative liability of Seller, including its subcontractors or
suppliers, for any and all claims, including but not limited to claims based on
Seller’s negligence of any degree, strict liability, breach of contract,
warranty, patents or otherwise, shall not exceed the purchase price of the
Product which gives rise to the claim, and any such liability shall terminate
upon the expiration of the warranty period. In no event shall Seller be liable
for special, indirect, incidental, exemplary, punitive or consequential damages
including, but not limited to, loss of profits or revenue. Buyer assumes all
risks and liability resulting from use of the Products purchased, whether used
separately or in combination with other products. 

 

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14. 


INTELLECTUAL PROPERTY RIGHTS.

 

 


 *

15. 

SELLER’S
PROPERTY 

A) 

Seller may
provide to Buyer certain items of tangible and intangible property, including
but not limited to, tools, equipment, machinery, materials, drawings,
specifications, computer software, documents, information, data, or other
intellectual property or proprietary information, which Seller may furnish for
the sole purpose of assisting Buyer in performing its obligations under this
Agreement or under a purchase order, or as the parties may otherwise agree in
writing ("Seller’s Property"). All such Property shall remain Seller’s personal
property. All of Seller’s Property furnished to Buyer shall be deemed to be
proprietary property to Seller, whether or not it is marked as such with any
restrictive legend. 

B) 

Buyer shall
exercise the same care in maintaining, storing and using Seller’s Property as it
exercises with its own property, but in no event shall Buyer exercise less than
reasonable care with respect to any of Seller’s Property in Buyer’s possession,
reasonable wear and tear excepted. Buyer shall not commingle Seller’s Property
with Buyer’s own property or that of a third party. Buyer shall insure Seller’s
Property in an amount equal to the replacement cost, and name Seller as an
additional insured under such insurance policy with any losses payable to
Seller. Buyer shall not substitute any property for Seller’s Property and shall
not use Seller’s Property except in fulfilling its obligations under this
Agreement. Seller may, for any reason and upon reasonable notice to Buyer,
remove Seller’s Property from Buyer’s premises at mutually agreeable dates and
times, and at Seller’s Expense. If Seller requests, Buyer shall prepare such
property for shipment and shall deliver it as Seller directs, at Seller’s
expense. Notwithstanding the foregoing, upon completion or termination of this
Agreement, Buyer shall promptly return to Seller all of Seller’s Property in
Buyer’s possession. 


 

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C) 

Buyer shall not
use, utilize, misappropriate, disclose, or reproduce Seller’s Property for any
purpose, except as outlined in the terms of this Agreement. Buyer may allow its
contractors to utilize Seller’s Property for the sole purpose of enabling
Buyer’s contractors to assist Buyer in performing its obligations under this
Agreement or as the parties may otherwise agree in writing, but only on the
condition that Buyer’s contractors agree in writing to the provisions of this
Article. Seller may terminate this license with or without cause at any time.


D) 

In the event
Seller provides any of its Property to Buyer under a bailment or consignment
arrangement, or sells any of its Property to Buyer, then Buyer hereby grants to
Seller, and Seller hereby reserves, a security interest in such Seller’s
Property, as well as any replacements, improvements, substitutions, attachments,
and accessories thereto provided by Seller, whether now existing or hereafter
arising, until Seller receives payment in full. Buyer shall execute and deliver
all documents that Seller may request to perfect, protect, and maintain Seller’s
security interest. 


16. 

BANKRUPTCY,
INSOLVENCY, AND CESSATION. 

A) 

Buyer shall
provide at least fifteen (15) calendar days advance notice to Seller of any of
the following events involving or affecting Buyer or Buyer’s parent, affiliates,
or subsidiaries: (i) imminent filing of a bankruptcy petition of any type; (ii)
declaration that Buyer or Buyer’s parent, affiliates, or subsidiaries has or
will become bankrupt or insolvent, or unable to pay its debts as they become
due; (iii) proposed or contemplated liquidation, dissolution receivership, or
assignment for the benefit of Buyer’s creditors; or (iv) cessation of Buyer’s
business or Buyer’s intent to cease to do business. Effective upon the issuance
of such notice, Buyer shall be deemed in default, and Seller may in Seller’s
sole discretion and notwithstanding any other provision of this Agreement,
immediately cancel this Agreement or any purchase order without any liability.
Buyer shall nonetheless be responsible for the payment of any outstanding
balance and/or unpaid invoice owed to Seller for Products delivered to Buyer
prior to the issuance of such notice. 

B) 

Notwithstanding
the payment terms of Article 8, Payment, above, Seller may require payment by
cash on delivery ("C.O.D.") or cash in advance, as a condition precedent for any
future deliveries: (i) that Seller chooses to make to Buyer after the issuance
of the notice under Article 15(a), or (ii) if Seller otherwise reasonably
believes in its sole discretion that Buyer may file for or consent to
bankruptcy, become insolvent or unable to pay its debts as they become due, or
cease its operations. All other provisions of Article 10 shall nonetheless
apply. 

C) 

Notwithstanding
the payment terms of Article 8, Payment, above, Seller may also accelerate the
payment terms by requiring Buyer to make payment immediately for Products
delivered prior to either: (i) the issuance of the notice under Article 15(a),
or (ii) the date when Seller formulates its belief that Buyer may file for
bankruptcy, become insolvent or unable to pay its debts as they become due, or
cease its operations. All other provisions of Article 8 shall nonetheless apply.


D) 

Nothing
contained in this Article 15 or elsewhere in this Agreement is intended to or
shall limit or otherwise impair any right or remedy that Seller may have under
applicable law. 


17. 

U.S
GOVERNMENT CONTRACT AUDIT RIGHTS. For any U.S. Government
contract or subcontract, only a United States Agency, such as the Defense
Contract Audit Agency ("DCAA") shall be authorized to perform assistance audits
concerning financial and engineering records. Buyer agrees, however, that the
DCAA shall not disclose to Buyer, and Buyer shall not accept from the DCAA, any
of Seller’s proprietary information that the DCAA may obtain as a result of any
assistance audit. Seller, in its sole discretion, shall have the right to limit
audits for all manufacturing and quality processes


 

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18. 

DISPUTE
RESOLUTION. Any and all disputes, controversies or claims arising under
or relating to any purchase order or breach, termination, or invalidation under
this Agreement shall upon written notice, be referred to the respective
representatives for each party. The parties, through their representatives
and/or senior management shall confer in good faith to attempt to resolve the
matter. If the parties are unable to resolve the matter within a reasonable
amount of time, either party may refer the matter to administered mediation. If
the parties are unable to fully resolve the dispute or claim through mediation,
then either party may file a lawsuit in a court of competent jurisdiction, in
accordance with Article 19, Governing Law, Jurisdiction, and Venue, below. 

19. 

NOTICES.
Buyer shall provide Seller with a contact person and address for all
notifications that Seller may send to Buyer under this Agreement. Buyer shall
send its notices to Seller to the following address: Director of Contracts
EaglePicher Technologies, LLC C& Porter Streets Joplin, Missouri 64801 


20. 

GOVERNING
LAW, JURISDICTION, AND VENUE. The UN Convention of Contracts for
the International Sale of Goods ("CISG") shall not govern the rights and
obligations of the parties under this Agreement. Rather, this Agreement shall be
interpreted, governed, construed and enforced in accordance with the laws of the
State of Missouri, without regard to its conflicts of law principles. Buyer
hereby consents to the exclusive jurisdiction of the State of Missouri, and all
litigation matters shall be heard and determined by state courts located in
Jasper County, Missouri or in federal courts located in the Western District of
Missouri. Buyer waives any objection based on lack of personal jurisdiction;
improper venue or forum non convenes. 

21. 

GOVERNING
LANGUAGE. This Agreement, and all oral communications, writings,
documents and technical information shall be in and governed by the English
language. 

22. 

NON-WAIVER.
Seller’s failure to either enforce or exercise any right, privilege, or legal
remedy at any time, any provision contained in this Agreement or in a
Confirmation or Acknowledgement, shall not be deemed a waiver of such provisions
or right, remedy, or privilege. 

23. 


SURVIVABILITY. If this Agreement expires, is completed, or is
terminated, Buyer shall not be relived of those obligations contained in the
following provisions: 

 

Applicable Laws 

Export Control 

Independent Contractor Relationship 

Intellectual Property 

Release of Information 

Warranty 

24. 

REMEDIES
AND SET-OFF. Seller’s remedies are cumulative and in addition to all
remedies set forth herein or otherwise available, either at law or in equity.
Seller may exercise its remedies either individually or cumulatively.
Notwithstanding any other available remedies, Seller may, at its option, set off
any deliveries of Products to Buyer for the equivalent amount of any outstanding
balance and/or unpaid invoices that Buyer owes to Seller under: (a) this
Agreement or a purchase order, (b) any other separate agreement or purchase
order(s) between the parties, or (c) any claim, judgment or other liability by
Seller against Buyer. 


 

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    mPhase Technologies Inc






25. 

SEVERABILITY.
In the event that any provision of this Agreement or in Seller’s Confirmation or
Acknowledgement may be invalid, unlawful or incapable of being enforced by a
rule of law or public policy, all other provisions shall, nonetheless, remain in
full force and effect. 

26. 


TERMINATION FOR DEFAULT. Upon thirty (30) days written notice to the
other party, either party may terminate this Agreement for default, in whole or
in part, if the other party fails to comply with any material provisions of this
Agreement and if said noncompliance is not cured within said thirty (30) day
notice period. In the event of default by Seller, Buyer shall nonetheless
compensate Seller for work actually completed and for work in progress. If Buyer
defaults, Seller may, in its sole discretion and at anytime: (a) withhold
deliveries and suspend performance; (b) continue performance if Seller deems it
reasonable to do so; or (c) place the Products into storage. Seller shall submit
invoices to Buyer for all costs that Seller incurs as a result of Buyer’s
default. Buyer shall promptly pay to Seller the amount set forth in any such
invoice. Seller shall be entitled to an extension of time for performance of its
obligations equaling the period of time for Buyer’s default, whether or not
Seller elects to suspend performance. 

27. 

PUBLICITY.
The Parties are permitted to issue an initial news release, public announcement,
advertisement, or any other form of publication concerning the Agreement.
Subsequent news releases, public announcements, advertisements, or any other
form of publication concerning the Agreement is only permitted with the advance
written approval of the other Party which shall not be unreasonably withheld.


28 


INDEMNIFICATION. Both parties shall defend, indemnify, and hold harmless
the other and each other’s, affiliates, agents, and customers from any and all
damages, liabilities, claims, losses, suits, legal actions, investigations, or
any threat of the same, and any costs incurred in connection therewith,
including but not limited to, attorney fees and litigation expenses, arising out
of, or related to, a breach by either party of this Agreement, or which may
result in any way from any accident, injury, libel, or property damage by reason
of: (a) any act or omission by either party, its agents, employees, or
subcontractors, except to the extent that the accident, injury, libel, or
property damage is due solely and directly to the other’s negligence, or (b)
Either Parties’ use of the Products in such a way that constitutes or may
constitute an infringement of any patent, trade secret, trademark, service mark,
copyright, or related application, or other intellectual property or
confidential and proprietary information infringement. Either party may, at its
sole option: (i) tender such claim to the other party to defend using legal
counsel acceptable to the other party, or (ii) defend such claim by retaining
legal counsel of the other party’s choosing and that party shall reimburse the
other for all costs of such defense. In either case all parties shall indemnify
and hold the other harmless from and against all damages arising out of or
relating to such claim. If any party tenders the defense of a claim to the other
and that party accepts such defense, then the other party shall be conclusively
deemed to have agreed that such claim is subject to indemnification hereunder,
and that that party has no claim or counterclaim against the other, all of which
that party shall be deemed to have waived. If a party assumes the defense of a
claim and thereafter fails to vigorously defend such claim, the other party
shall have the right, at its option, to assume the defense of such claim and
both parties shall remain obligated to indemnify the other hereunder. If a party
assumes the defense of a claim, that party shall not settle or compromise such
claim without Seller’s prior written consent. Buyer shall at all times maintain
such general and other liability, property damage, and employee liability
insurance in sufficient amounts that will protect Seller from any or all of the
foregoing risks, and upon request Buyer shall supply certificates of insurance
to Seller. 

29. 

SECTION
HEADINGS. Section headings are for the convenience of the parties only
and shall not be used to construe or interpret the terms and conditions
contained herein. 

30. 

ENTIRE
AGREEMENT. This contract, together with any purchase orders issued
pursuant to this contract, including attachments and documents incorporated
herein by reference, constitutes the entire agreement between Seller and Buyer,
and supersedes all prior representations,
agreements, understandings, and communications between Seller and Buyer. 


 

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    mPhase Technologies Inc







3.1.2 


Special Terms and Conditions 


	
  
  EP must notify mPhase at least 10 days
  before agreed upon completion date of each Phase of work with a status report
  as to whether project is on/off track. 
  



  	
  
  If project is on track, mPhase must make
  each payment to EP within 5 days of EP providing or shipping deliverables or
  as set forth in work plan objectives 



  	
  
  If the project is off track, mPhase
  reserves the right to withhold each payment until a date to provide or ship
  deliverables is agreed upon by both parties, or as set forth in revised work
  plan objectives 



  	
  
  Payment by mPhase to EP is required to
  initiate next Phase of work once both parties agree that objectives for
  current Phase have been met. 



  	
  
  EP reserves the right not to start next
  Phase of work until mPhase has paid according to above schedule. 



  	
  
  Both parties agree to terminate the
  project at any time if payments are not received from mPhase by EP or if EP
  fails to provide deliverables to mPhase or meet objectives agreed to by both
  parties as part of work plan.

  



   
 
 
 

*

The
Company has, pursuant to Rule 24 (b-2) of the Securities Exchange Act of 1934,
as amended, has requested Confidential Treatment for portions of the contract
marked with an asterisk and has separately filed such confidential material with
the Securities and Exchange Commission.  

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