WWW.EXFILE.COM, INC. -- 888-775-4789 -- PERFORMANCE HEALTH TECHNOLOGIES, INC. -- EXHIBIT 10.132 TO FORM 10-Q


    EXHIBIT 10.132

     

    Logic
Terms + Conditions ::  Time and Materials Contract

     

     

    Client:
Performance Health Technologies

     

    Project:
The Bug

     

    Date:
August 8, 2008

     

    Revision: D

     

     

     

    
      	
              1.  

            	
              Definition:  This
      is a Time and Materials contract.  Client agrees to pay Logic
      Product Development Company (hereafter “Logic”) for all services provided
      to or on behalf of Client (the “Services”) at the hourly rates quoted
      below and to reimburse Logic for materials purchased in the course of the
      project with the Materials Acquisition fees as stated
      below.

            


    

     

    
      	
              2.  

            	
              Estimated
      Project Fees:  The estimated fees for this project are
      based on Logic’s current understanding of the scope and assumptions listed
      in the Technical Approach/Statement of Work document.  These
      estimates represent Logic’s best effort at predicting the expense for the
      project and may change during the course of the
      project.

            


    

     

    
      	
              3.  

            	
              Authorization.  Client’s
      endorsement of the terms and definition of scope under Project
      Authorization will initiate the project.  Client’s purchase
      order will be used by Logic Accounts Payable department to identify the
      project during invoicing, but any inconsistent or supplemental terms or
      conditions contained in Client’s purchase order or any other Client
      document shall not become part of the contract between Logic and
      Client.

            


    

     

    
      	
              4.  

            	
              Down
      Payment. Logic requires payment in the amount of 25% of the
      estimated price of the authorized phase or phases before beginning work on
      a project (hereafter “Down Payment”).  The Down Payment will
      apply to the final installments of progress
  billing.

            


    

     

    
      	
              5.  

            	
              Payment
      Terms.  For projects lasting more than thirty (30) days,
      Logic will issue monthly progress billings with terms of Net thirty (30)
      days.  Logic will send final billings immediately upon
      conclusion of all projects for which it has received Client’s written
      approval.  Accounts past forty-five (45) days will be charged a
      0.75% finance fee for every fifteen (15) days over Net thirty (30)
      days.

            


    

     

     

    
      
         

      

      
         

        
          
 

      

      
         

      

    

     

     

    
      	
              6.  

            	
              Project
      Continuation.  Logic requires that accounts not exceed
      the payment terms of Net thirty (30) days.  Accounts past thirty
      (30) days will immediately be placed on hold and internal resources will
      be reallocated until the account is
paid.

            


    

     

    
      	
              7.  

            	
              Project
      Expenses. Project related expenses not itemized in this proposal
      including, but not limited to, travel expenses and special materials must
      be pre-approved by Client and are an added expense (collectively “Project
      Expenses”).  Project materials will be billed at cost plus an
      18% materials acquisition fee (hereafter “Project
      Materials”).  Any required materials purchase over five thousand
      ($5000.00) dollars will be immediately invoiced per the terms in paragraph
      3.

            


    

     

    
      	
              8.  

            	
              Project
      Variations.  The scope, structure, and estimated fees for
      this proposal are based on our understanding of the project requirements
      at the point of project initiation.  If project requirements or
      assumptions change during project execution, Logic will provide the Client
      with recommendations for project changes and associated cost
      re-estimations.

            


    

     

    
      	
              9.  

            	
              Billing
      Rates.  Billing rates quoted in this proposal are valid
      for the duration of the proposed project.  Logic’s billing rates
      are adjusted annually.  Project additions or modifications
      adding to the expense of this proposal, occurring after January 1 of the
      following year, may be subject to new rates.  Logic will inform
      Client of any rate changes as part of the proposed project
      additions.

            


    

     

    
      	
              10.  

            	
              Quote
      Expiration.  The project estimates and schedules outlined
      in this specific proposal are valid for thirty (30) days from the date of
      the proposal.  Logic reserves the right to review and adjust
      these estimates and schedules if client does not approve of the proposal
      within thirty (30) days.

            


    

     

    
      	
              11.  

            	
              Termination.  Client
      may cancel a project or put it on hold at anytime with a written notice to
      Logic.  Client agrees to pay Logic for all work performed, per
      the terms of this Agreement, to the date that the cancellation is
      received.

            


    

     

    
      	
              12.  

            	
              Termination
      Fee.  If
      a project is cancelled [or put on hold] by the Client pursuant to the
      terms of Section 11 above, then the Client shall pay to Logic a
      termination fee (a “Termination Fee”) in an amount equal $8000. This
      is in addition to the cost of any work already preformed to date. The
      Termination Fee shall be payable by the Client to Logic within ten days
      following the termination
  date.

            


    

     

    
      	
              13.  

            	
              Sales
      and Use Tax Fees.  Logic's design fees estimated in this
      proposal do not include sales or use taxes.  Logic pays sales
      and use tax on all goods and services that Logic purchases for the Client
      and .

            


    

     

    
      
         

      

      
         

        
          
 

      

       

      
        
          	
                        
        

                	
                  and
      will pass these taxes on during billing.  The Client agrees to
      pay Logic for any sales and use taxes levied against Logic during or after
      the project for services rendered or materials supplied to the Client by
      Logic.

                


        

         

      

       

    

    
      
        	
                14. 

              	
                 Intellectual
      Property Ownership.

              


      

    

     

    
      	
              1.  

            	
              Assignment
      of Intellectual Property.  Following receipt of all
      payments in full for all fees, Project Expenses, Project Materials, and
      work product conceived, discovered, created, developed or reduced to
      practice by Logic on behalf of Client in connection with all Services
      provided to or on behalf of client, Logic will assign and transfer all
      rights, title, and interest in and to all copyrightable material, notes,
      records, drawings, designs, inventions, improvements, developments,
      discoveries including any trade secrets, copyrights, patents, mask work
      rights or other intellectual property rights relating thereto
      (collectively, “Client Intellectual
  Property”).

            


    

     

    
      	
              2.  

            	
              Excluded
      Intellectual Property.  Client acknowledges that the
      following shall not constitute Client Intellectual
      Property:  (i) information, materials, notes, records, drawings,
      designs, inventions, improvements, developments, discoveries and
      information that was developed, owned by or licensed to Logic prior to the
      execution of this Agreement; (ii) information that is publicly known or
      becomes publicly known through no acts of Logic; and (iii) information,
      materials, notes, records, drawings, designs, inventions, improvements,
      developments, discoveries and information developed in whole or in part by
      Logic that are unrelated to the Services provided by Logic
      hereunder.

            


    

     

    
      	
              3.  

            	
              Further
      Assurances.  Following receipt of all payments in full
      for all amounts owed to Logic hereunder, Logic agrees to assist Client, or
      its designee, at the Client’s expense, in every proper way to secure the
      Client Intellectual Property in any and all countries, including the
      disclosure to the Client of all pertinent information and data with
      respect to all Client Intellectual Property, the execution of all
      applications, specifications, oaths, assignments and all other instruments
      that the Client may deem necessary in order to apply for and obtain such
      rights and in order to assign and convey to the Client, its successors,
      assigns and nominees the sole and exclusive right, title and interest in
      and to all Client Intellectual Property.  Logic also agrees that
      Logic’s obligation to execute or cause to be executed any such instrument
      or papers shall continue after the termination of this
      Agreement.

            


    

     

    
      	
              15.  

            	
              Confidentiality.  Logic
      will take reasonable measures to maintain the confidentiality of Client's
      product information as defined by the Client’s confidentiality
      agreement.  Client acknowledges and agrees that the existence of
      the relationship between Logic and Client is not confidential unless
      otherwise instructed by the Client.  If the Client notifies
      Logic in writing that the relationship with Logic is confidential, Logic
      will only disclose the existence of such relationship with prior approval
      of the Client.

            


    

     

    
      	
              16.  

            	
              Project
      Disclosure.  Logic’s viability in the marketplace is
      dependent upon the presentation of past work performed.  Logic
      reserves the right to disclose and display the results of its work
      developed on behalf of Client to the public as an example of Logic’s value
      to the marketplace.  Logic will prepare
  

            


    

     

    
      
         

      

      
         

        
          
 

      

       

      
        
          	
                    

                	
                  such
      marketing materials for review by Client and only release such materials
      with Client approval, which shall not be unreasonably
      withheld.

                


        

      

       

       

    

    
      	
              17.  

            	
              Indemnification.  Client agrees
      to indemnify and hold harmless Logic from any costs, damages, attorney
      fees, costs, or losses as a result of any claim arising out of the
      Services performed or materials provided by Logic to or on behalf of
      Client, except as provided in the following
      sentence.  Logic agrees to indemnify and hold harmless Client
      from any costs, damages, attorney fees, costs, or losses as a result of
      any claim arising out of Logic’s gross negligence or professional
      misconduct.

            


    

     

    
      	
              18.  

            	
              Employee
      Solicitation.  Client
      recognizes that Logic has a substantial investment in its intellectual
      property and employees.  Client agrees that it will not directly
      or indirectly solicit or accept services from Logic employees during the
      term of this Agreement and for a period of one (1) year following either
      the termination of this Agreement or receipt of final payment in full for
      all the Services performed hereunder whichever is last to
      occur.  Client acknowledges and agrees
      that if it knowingly violates
      the provisions of this Section 18, Logic will suffer irreparable harm
      for which there is no adequate remedy at law, and Client therefore
      consents to the issuance of any injunction or other equitable relief in
      favor of Logic enjoining any violation of this
      Agreement.  Client further agrees that if it violates this
      Section 18, it will immediately pay Logic, as liquidated damages, an
      amount equal to one (1) times the employee’s total annual compensation
      current at the time the employee left their position at
      Logic.

            


    

     

    
      	
              19.  

            	
              Service
      Warranty; Limitations of Liability. Logic agrees that the Services
      provided hereunder will be performed in a professional manner consistent
      with the standards and practice prevailing in the respective field of
      engineering to which the Client’s project relates.  EXCEPT FOR
      THIS WARRANTY, LOGIC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
      INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR
      PURPOSE OR MERCHANTABILITY.  Under no circumstances shall Logic
      be responsible for indirect, incidental, consequential, special or
      exemplary damages or lost profits of any kind.  Furthermore,
      Client specifically agrees that Logic’s maximum liability for any claim by
      Client arising out of the performance or non-performance of the Services
      by Logic shall be limited to the design fees paid by Client to Logic for
      Services prior to the time of assertion of any such
      claim.

            


    

     

    
      	
              20.  

            	
              Survival.  In
      the event of any termination or expiration of this Agreement,
      (a) Client nonetheless remains obligated to pay for all fees, Project
      Expenses, and other costs due Logic payable hereunder up through the date
      of termination or expiration, and (b) Sections 14, 16, 17, 18,
      19, 20, 21 and 26 shall nevertheless survive and remain in full force and
      effect.

            


    

     

    
      	
              21.  

            	
              Governing
      Law.  This Agreement will be governed in all respects by
      the internal laws of the State of Minnesota (without regard to its
      conflict of law principles), and each party consents to the exclusive
      personal jurisdiction of and venue in the state and federal courts sitting
      in Hennepin County,
Minnesota.

            


    

     

    
      
         

      

      
         

        
          
 

      

      
         

      

    

     

    
      	
              22.  

            	
              Assignability.  Except
      as otherwise provided in this Agreement, Logic may not sell, assign or
      delegate any rights or obligations under this
      Agreement.

            


    

     

    
      	
              23.  

            	
              Entire
      Agreement.  This Agreement constitutes the entire
      agreement between the parties with respect to the subject matter of this
      Agreement and supersedes all prior written and oral agreements between the
      parties regarding the subject matter of this
    Agreement.

            


    

     

    
      	
              24.  

            	
              Headings.  Headings
      are used in this Agreement for reference only and shall not be considered
      when interpreting this
Agreement.

            


    

     

    
      	
              25.  

            	
              Notices.  Any
      notice or other communication required or permitted by this Agreement to
      be given to a party shall be in writing and shall be deemed given if
      delivered personally or by commercial messenger or courier service, or
      mailed by U.S. registered or certified mail (return receipt requested), or
      sent via facsimile (with receipt of confirmation of complete transmission)
      to the party at the party's address or facsimile number written below or
      at such other address or facsimile number as the party may have previously
      specified by like notice.  If by mail, delivery shall be deemed
      effective three (3) business days after mailing in accordance with this
      Section 22.

            


    

     

    (1)
 If to Logic, to:

     

    Logic
Product Development

    411
Washington Avenue North

    Minneapolis,
MN 55401

    Attention:  General
Manager Logic Services

    Telephone:  (612)
672-9495

    Facsimile:  (612)
672-9489

     

    (2) 
If to Client, to the address for notice on the signature page of this Agreement
or, if no such address is provided, to the last address of Client provided by
Client to the Logic.

     

    
      	
              26.  

            	
              Attorneys’
      Fees.  In any court action at law or equity that is
      brought by one of the parties to this Agreement to enforce or interpret
      the provisions of this Agreement, the prevailing party will be entitled to
      reasonable attorneys’ fees, in addition to any other relief to which that
      party may be entitled.

            


    

     

    
      	
              27.  

            	
              Severability.  If
      any provision of this Agreement is found to be illegal or unenforceable,
      the other provisions shall remain effective and enforceable to the
      greatest extent permitted by
law.

            


    

     

     

    
      
         

      

      
         

        
          
 

      

      
         

      

    

     

    Fees
for Services ::

     


     

    
      	Electrical
      Tech 	 	$75/hr 
	PCB Designer /
      Associate Engineer 	 	$85/hr 
	Engineer I /
      Designer I / Sr. PCB Designer: 	 	$105/hr 
	Engineer II /
      Designer II: 	 	$115/hr 
	Senior Engineer /
      Designer:  	 	$130/hr 
	Principal Engineer /
      Lead Designer    	 	
              $140/hr 

            
	 	 	 
	Materials
      Acquisition Fee 	 	18% 


    

     

    Estimated
Project Labor Fees   $145,000

     

    Estimated
Materials Expense (includes 18% Mat Acq)   $8,614

     

     

     

     

     

    Project
Authorization ::

     

    Thank you
for the opportunity to prepare this proposal.

     

    Please
sign below to indicate your acceptance of the terms and authorized scope of
work.

     

    Logic
Product Development

     

     

    
       

      

    

     

     

    Jason
Sheard – Director of Electrical Engineering

     

     

     

     

    Acceptance
of terms and initiation of project by Performance Health
Technologies.

     

    o
Phases 1 and 2

     

     

     

     

     

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    Signature/Title/Date