helix_ex1005.htm


    Exhibit
10.5

     

    
      JOINT
DEVELOPMENT AGREEMENT

    

     

     

    
      This
Joint Development Agreement is made and entered into this 3rd day of
June, 2009 (the "Effective Date"), by and between:

       

       CheckPoint
Fluidic Systems International, Limited, a limited partnership organized under
the laws of the state of Texas, whose registered office is at 21356 Marion Lane,
Mandeville, LA 70471, (hereinafter referred to as “CheckPoint”);
and

       

      Helix
Wind Inc., a company incorporated under the laws of the State of Nevada, having
its registered address at 1848 Commercial Street, San Diego, CA 92113,
(hereinafter referred to as “Helix”).

       

      CheckPoint
and Helix are referred to collectively as the “Parties” and each individually as
a “Party.”

       

      WHEREAS,
CheckPoint has extensive worldwide expertise in precision chemical injection
pumping systems for the oil and gas industries, and has developed unique
Technology related thereto (as such term is defined in Section 2, below, and
holds all rights, including Intellectual Property Rights to the Technology;
and

       

      WHEREAS,
Helix has developed an advanced and unique wind turbine Rotor (as such term is
defined in Section 2, below), and holds all rights, including Intellectual
Property Rights to the Rotor; and

       

      WHEREAS,
the Parties wish to jointly develop, integrate and test a prototype and
subsequent production product that stores wind energy as compressed air,
enabling precision chemical injection pumping into oil and gas for CheckPoint
applications around the world, as well as for both parties in other processes,
and to enter into a joint commercial relationship on mutually agreeable
terms.

       

      NOW
THEREFORE, in consideration of the mutual promises and covenants set forth
herein, the Parties hereby agree as follows:

       

      
        	
                1.  

              	
                Purpose and
      Scope

              


      

       

      
        	
                1.1.  

              	
                The
      Parties shall jointly carry out the development, integration, testing and
      demonstration (hereinafter referred to collectively as the “Development”)
      of a joint product to be developed by the Parties by integration of the
      CheckPoint expertise and technology with the Rotor to form an advanced
      complete wind turbine pneumatic pumping system (the
      “Prototype”).

              


      

       

      
        	
                1.2.  

              	
                The
      Parties are entering this Agreement with the understanding that following
      the successful Development, the Parties will then participate in a mutual
      commercial relationship, on mutually acceptable terms and
      conditions.

              


      

       

      
        	
                1.3.  

              	
                The
      terms of this Agreement shall not apply to any work performed by any
      Party, jointly or severally, outside the scope of this Agreement, and the
      results of such work performed not strictly pursuant to this Agreement
      shall not be governed by the provisions of this
  Agreement.

              


      

       

      
        	
                2.  

              	
                Definitions

              


      

       

      
        	
                2.1.  

              	
                "Technology"
      means individually and collectively, the pneumatic pumping technology
      developed by CheckPoint for wind turbines and any associated CheckPoint
      products and all components contained and/or incorporated therein and/or
      the technology, know-how, techniques, methods and/or designs incorporated
      and/or utilized in connection therewith, any pumping systems, computer
      hardware or software - whether or not such bears the trade name and/or
      trademark of CheckPoint, patents, inventions, etc. which CheckPoint (or
      its affiliates) has developed, acquired or licensed, and all corrections,
      modifications, and/or enhancements thereto and any modules and/or elements
      thereof and all the manuals and other Documentation included therewith
      and/or accompanying same.

              


      

       

       

       

      
        
           

        

        
          Page 1 of
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        JOINT
DEVELOPMENT AGREEMENT

      

       

      
        	
                2.2.  

              	
                "Documentation"
      means CheckPoint's and Helix’s printed and electronic technical materials
      and specifications related to each of their Technologies, including but
      not limited to manuals and promotional materials and software each may
      provide to the other Party
hereunder.

              


      

       

      
        	
                2.3.  

              	
                "Rotor"
      means the wind turbine rotor developed by Helix and all components
      contained and/or incorporated therein and/or the technology, know-how,
      techniques, methods and/or designs incorporated and/or utilized in
      connection therewith, any computer hardware or software - whether or not
      such bears the trade name and/or trademark of Helix, patents, inventions,
      micro-chips, etc. which Helix (or its affiliates) has developed, acquired
      or licensed, and all corrections, modifications, and/or enhancements
      thereto and any modules and/or elements thereof and all the manuals and
      other documentation included therewith and/or accompanying
      same.

              


      

       

      
        	
                2.4.  

              	
                “Prototype”
      means at least one single functioning complete wind turbine system
      including the Rotor (as may be further developed hereunder) and the
      Technology (as may be further developed hereunder), which together
      compress and store wind energy as compressed air, for continuous or
      intermittent use by a wide range of pneumatically operated
      devices.

              


      

       

      
        	
                3.  

              	
                Stages of Development
      of the Prototype

              


      

       

      
        	
                3.1.  

              	
                Definition of
      Components and Providence of Background Information
      Stage

              


      

       

      
        	
                3.1.1.  

              	
                Within
      ten (10) days of the Effective Date, the Parties shall jointly determine
      the milestones and deadlines of this Development Project, and CheckPoint
      shall then produce a suitable Gantt or other work process chart showing
      the agreed milestones, the major work processes and assignments and
      responsibilities of each party.

              


      

       

      
        	
                3.1.2.  

              	
                Within
      ten (10) days, Helix will nominate an internal delegate to join
      CheckPoint’s Internet-based Project Management Tool (PMT) as a
      participant, and CheckPoint will add such person as a member of the PMT
      immediately upon nomination. As such, henceforth Helix will be aware of
      all activities CheckPoint is involved in relative to the project. Helix’s
      delegate agrees to use said PMT to enter any activities for which it is
      responsible connected to this project so that CheckPoint is also aware of
      Helix’s activities.

              


      

       

      
        	
                3.1.3.  

              	
                Within
      thirty (30) days from the Effective Date, Helix shall be responsible to
      purchase (at its own cost) and ship the Rotor to CheckPoint facilities in
      Mandeville.

              


      

       

      
        	
                3.1.4.  

              	
                CheckPoint
      shall ensure that all of its representatives who come onto any
      Helix-controlled premises enter into Helix‘s standard Non-Disclosure
      Agreement, comply with Helix’s (and any applicable landlord’s) standard
      safety policies, rules and regulations, and comply with all applicable
      laws related to such premises. The Parties understand that all such
      requirements shall be reciprocal when applied to CheckPoint-controlled
      facilities and Helix
representatives.

              


      

       

      
        	
                3.1.5.  

              	
                Each
      of the Parties shall provide the other Party, within a period of thirty
      (30) days from the Effective Date, such technical and any other essential
      information required for the initial phase of the Development of the
      Prototype (the “Background Information”). In addition, upon purchasing the
      Rotor, Helix shall provide CheckPoint any and all relevant information and
      technical data regarding the Rotor as required by CheckPoint for the
      preparation of the Technology for integration with the other components.
      On an ongoing basis, each Party shall disclose to the other Party, all
      information which is reasonably relevant or required for the
      accomplishment of the Development.

              


      

       

      
        
           

        

        
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      JOINT
DEVELOPMENT AGREEMENT

       

       

      
        	
                3.1.6.  

              	
                Within
      ninety (90) days from the Effective Date, or sooner if possible, the
      Parties will finalize the list of components to be integrated by the
      Parties for the Prototype. Accordingly, if possible, CheckPoint, in
      consultation with Helix, shall select a compression system or systems to
      be used in the Prototype (the "Compressor(s)"). However, the Parties
      acknowledge that it is likely that no readily available compressor may
      exist to meet the needs of this project, in which case the Parties shall
      jointly agree on the design parameters of such Compressor and CheckPoint
      shall undertake the design and manufacture of the prototype of such
      Compressor at its sole cost. The Parties acknowledge and agree that should
      CheckPoint need to develop such Compressor, the Milestones of the
      Development Project will probably need to be adjusted to accommodate any
      additional engineering time
required.

              


      

       

      
        	
                3.2.  

              	
                Separate Development
      Stage

              


      

       

      
        	
                3.2.1.  

              	
                Within
      a reasonable period of time as outlined in 3.1.1, and adjusted from time
      to time as may be required and agreed by the Parties, after receiving the
      Background Information, each of the Parties shall prepare and adjust its
      part (the "Separate Development") of the Prototype in order to enable the
      integration of all components to one product. Accordingly, CheckPoint
      shall prepare and adjust its Technology, using its own development
      know-how and skills, for integration with the Rotor, and Helix shall
      prepare and adjust its Rotor, using its own development know-how and
      skills, for integration with the Pumps with which the Technology will be
      integrated.

              


      

       

      
        	
                3.3.  

              	
                Integration
      Stage

              


      

       

      
        	
                3.3.1.  

              	
                Upon
      the completion of the Separate Development Stage, CheckPoint shall make
      available adequate facilities and its professional personnel as necessary
      for execution of the integration stage and the testing of the Prototype.
      The representatives of CheckPoint or Helix will travel to CheckPoint
      facilities to work with CheckPoint personnel to integrate the Technology,
      the Compressor(s), and the Rotor to form the Prototype each at
      CheckPoint’s and Helix’s respective own
cost.

              


      

       

      
        	
                3.3.2.  

              	
                The
      integration of the components to create the Prototype shall be conducted
      according to the general outlines as detailed in Exhibit A
      hereto.

              


      

       

      
        	
                3.3.3.  

              	
                 The
      Parties undertake to provide all required manpower and/or tools as
      required in order to complete the integration process in a timely and
      efficient manner. The forecasted time-frame for the completion of the
      integration stage is ninety (90)
days.

              


      

       

      
        	
                3.3.4.  

              	
                Each
      of the parties shall appoint a representative who shall be responsible for
      the proper and efficient coordination and cooperation between the
      Parties.

              


      

       

      
        	
                3.4.  

              	
                Testing and
      Development Completion Stage

              


      

       

      
        	
                3.4.1.  

              	
                Upon
      completion of the integration stage, the Parties shall jointly conduct
      testing of the Prototype to evaluate the success of the integration of the
      various components and to test the functioning and production capacity of
      the Prototype. The testing shall be carried out by the Parties mutually
      and in full cooperation and shall be considered as completed successfully
      based on parameters that will be determined and agreed upon by both
      Parties.

              


      

       

       

      
        
           

        

        
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        JOINT
DEVELOPMENT AGREEMENT

      

       

      
        	
                3.4.2.  

              	
                Helix
      agrees that a Prototype in which the Turbine portion operates in a manner
      that Helix determines is consistent with its expectations for a period of
      not to exceed 60 days shall be deemed sufficient information to proceed
      with activities related to production of commercial product based around
      the Prototype.

              


      

       

      
        	
                3.4.3.  

              	
                CheckPoint
      agrees that a Prototype in which Compressor(s) and air storage portions
      prove to meet the needs of the chemical pumps CheckPoint intends to drive
      using for a period not to exceed 60 days shall be deemed sufficient
      information to proceed with activities related to production of commercial
      product based around the Prototype.

              


      

       

      
        	
                4.  

              	
                Expenses

              


      

       

      
        	
                4.1.  

              	
                Each
      Party shall bear their own expenses except for the purchase of the Rotor
      and its associated expenses, which shall be borne solely by Helix, and the
      Technology and Pumps, which shall be borne solely by CheckPoint. Any
      money, expenses or losses expended or incurred by either Party related to
      this Agreement shall be such Party’s sole cost and
  expense.

              


      

       

      
        	
                5.  

              	
                Interim
      Reporting

              


      

       

      
        	
                5.1.  

              	
                The
      Parties’ representatives shall hold meetings or conference calls for
      information, whether regularly or as required, at which meeting/conference
      they shall each report their progress, results and other matters of the
      Development to the other and deliberate any technical issues if
      necessary.

              


      

       

      
        	
                6.  

              	
                Confidentiality

              


      

       

      
        	
                6.1.  

              	
                The
      Parties covenant and undertake that, during the Term and for a period of
      five (5) years thereafter, absent the disclosing Party’s prior written
      consent, all information, written or oral, relating to the disclosing of
      either Party’s technology, business or any other information (actual or
      planned) which has been or will be disclosed to the other Party prior to
      the signing hereof and/or during the course of and pursuant to this
      Agreement, and specifically but not limited to the Documentation and
      documentation of a similar nature to be provided by CheckPoint or Helix to
      the other hereunder, whether or not same has been designated by the
      disclosing Party as confidential, which by its nature would ordinarily be
      thought to be confidential (the "Confidential Information"), shall be
      maintained by the receiving Party in full and absolute confidence, and the
      receiving Party shall not use such Confidential Information, directly or
      indirectly, in whole or in part, for its own benefit or any purpose
      whatsoever except as specifically and explicitly provided hereunder. The
      confidentiality undertakings herein shall not apply to specific
      information which: (i) is in, or enters into, the public domain other than
      by reason of a breach hereof; (ii) is already known to the receiving Party
      prior to receipt thereof from the disclosing Party; (iii) is disclosed to
      the receiving Party after the date hereof from a third party who has the
      right to transfer or disclose such information, without violation of a
      confidentiality obligation; (iv) the receiving Party has independently
      developed, prior to this Agreement, and without breach of this Agreement;
      or (v) is disclosed pursuant to applicable law or regulation, by order,
      requirement of a court, administrative agency, or other governmental body.
      In the event that the receiving Party shall determine that sub-part (ii)
      applies to otherwise Confidential Information, the receiving Party shall
      give 30 days advance written notice to the disclosing Party of its intent
      to disclose such information so that the disclosing Party may seek any
      legal remedies it deems necessary including but not limited to and order
      of injunction against such
disclosure.

              


      

       

       

      
        
           

        

        
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      JOINT
DEVELOPMENT AGREEMENT

       

       

      
        	
                6.2.  

              	
                The
      Parties will not use any Confidential Information otherwise than in
      accordance with the aforesaid in this Paragraph 6 and for the execution of
      their undertaking according to this Agreement. Notwithstanding anything in
      this Agreement to the contrary, all joint evaluation and test results
      (including but not necessarily limited to Paragraph 3.4) shall be deemed
      to be the joint Confidential Information of the Parties, each of which
      shall have joint and equal rights to use such Confidential Information
      internally only.

              


      

       

      
        	
                6.3.  

              	
                Upon
      termination of this Agreement for any reason whatsoever, each Party shall
      promptly return to the other Party all documentation and other tangible
      property which was received from the disclosing Party in respect of the
      Confidential Information, and any copies made
  thereof.

              


      

       

      
        	
                6.4.  

              	
                The
      confidentiality undertakings contained herein shall remain in full force
      and effect for a period of five (5) years following the later of: (i) the
      termination of this Agreement, for any reason or for no reason; or (ii)
      from the end of the Term.

              


      

       

      
        	
                7.  

              	
                Ownership of
      Intellectual Property Rights

              


      

       

      
        	
                7.1.  

              	
                As
      between the Parties, all Intellectual Property Rights in any Invention (as
      such terms are defined in Paragraph 7.3) in the exclusive possession of a
      Party prior to signature of the Agreement or developed by it at any time
      outside the scope of the Agreement alone or in collaboration with one or
      more third parties ("Background Technology") shall remain the sole
      property of such Party. By way of example, all rights of CheckPoint in the
      Technology or any development and/or derivative thereof, shall remain its
      sole property. Conversely, by example, all rights of Helix in the Rotor or
      any development and/or derivative thereof, shall remain its sole property.
      At the end of the Development or Term, whichever is earlier, the Prototype
      shall be considered equally shared and owned and remain in CheckPoint’s
      possession, with all title, right and interest therein vested equally in
      CheckPoint and Helix in equal portion (50% by each
  Party).

              


      

       

      
        	
                7.2.  

              	
                It
      is further understood and agreed that no Party’s Background Technology
      shall become technology developed under this Agreement and shall not
      become a Development Result (as defined below) merely because it is used
      by the other Party or incorporated into the Prototype (or any
      commercialized version thereof).

              


      

       

      
        	
                7.3.  

              	
                As
      between the Parties, all rights, title and interest (including all patent
      rights, copyrights, trade secret rights, mask work rights, sui generis
      database rights and all other intellectual and industrial property rights
      throughout the world (collectively, “Intellectual Property Rights” ) in
      any inventions (whether or not patentable), works of authorship, mask
      works, ideas or information (“Inventions”) made or conceived or reduced to
      practice solely by one Party in the course of the Development under this
      Agreement (hereinafter collectively referred to as “Development Results”)
      , and not based on any Confidential Information of the other Party, shall
      be solely owned by the Party that created such Development
      Results.

              


      

       

      
        	
                7.4.  

              	
                As
      between the Parties, all Intellectual Property Rights in any Inventions
      made or conceived or reduced to practice jointly by the Parties in the
      course of the Development under this Agreement (hereinafter collectively
      referred to as “Joint Development Results” shall be owned as
      follows:

              


      

       

      
        	
                7.4.1.  

              	
                If
      a particular Joint Development Result relates primarily to CheckPoint
      Technology, they shall be owned solely by
  CheckPoint.

              


      

       

       

      
        
           

        

        
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        JOINT
DEVELOPMENT AGREEMENT

      

       

      
        	
                7.4.2.  

              	
                If
      a particular Joint Development Result relates primarily to the Helix
      Rotor, they shall be owned solely by
Helix.

              


      

       

      
        	
                7.4.3.  

              	
                If
      the Parties cannot agree, after exerting their best diligent good faith
      efforts, on whether a particular Joint Development Result relates
      primarily to CheckPoint’s Technology or Helix’s Rotor (including their
      respective related technology as per Paragraphs 2.1 and 2.3), then each
      Party will equally and jointly own the Intellectual Property Rights with
      respect only to such particular Joint Development Result. CheckPoint shall
      have the exclusive right within the Oil and Gas industry to unilaterally
      fully exploit such rights without further accounting to or consent from
      Helix (except to the minimum extent required under applicable law) except
      within the countries of Brazil, Argentina and Aruba. CheckPoint, however,
      will purchase from Helix (at the price tier of Helix’s best sales price to
      its Distributors or customers) any Rotor used in its exploitation within
      the Oil and Gas industry of such Intellectual Property Rights. Helix shall
      have the exclusive right within all other industries to unilaterally fully
      exploit such rights without accounting to or further consent from
      CheckPoint (except to the minimum extent required under applicable law) on
      a worldwide basis. Helix, however, shall purchase from CheckPoint (at the
      price tier of CheckPoint’s best sales price to it customers) compressors,
      pumps, and any other items sold by CheckPoint which is related to its
      Technology and used by Helix in the exploitation of Intellectual Property
      Rights, in all industries other than the Oil and Gas Industry. The Parties
      shall cooperate and do such things as may be reasonably necessary or
      prudent to obtain, maintain, and enforce Intellectual Property Rights in
      such Joint Development Results.

              


      

       

      
        	
                7.5.  

              	
                The
      Parties hereby shall make any assignments necessary to accomplish the
      foregoing ownership provisions. In interpreting such provisions anything
      made or conceived or reduced to practice by an employee or contractor of a
      Party in the course of performance under this Agreement will be deemed so
      made or conceived or reduced to practice by that Party. A Party being
      assigned any Intellectual Property Right under this Agreement shall have
      the exclusive right to, and, at such Party’s expense, the assigning Party
      agrees to assist such Party in every proper way (including, without
      limitation, becoming a nominal party) to, evidence, record and perfect the
      assignment and to apply for and obtain recordation of and from time to
      time cooperate in the enforcement, maintenance, and defense of such
      Intellectual Property Right (all at the expense of the Party seeking to
      exploit such Intellectual Property Right). In the event that a Party is
      unable for any reason whatsoever to secure the other Party’s signature to
      any document it is entitled to under this Paragraph 7.4, the Party may
      seek enforcement of such provision of Paragraph 7.4 pursuant to binding
      arbitration before the American Arbitration Association “AAA”, located in
      Phoenix, Arizona, pursuant to the AAA’s Large, Complex Commercial Disputes
      Procedures.

              


      

       

      
        	
                8.  

              	
                Strategic Partnership
      Relationship

              


      

       

      
        	
                8.1.  

              	
                Upon
      the completion of the Development, the Parties shall commence to form the
      terms of a Strategic Partnership Agreement for the manufacturing,
      marketing and sale of the Prototype or commercial version thereof, which
      may be by means of purchase / supply from one Party to another or in any
      other commercial model agreed upon between the
  Parties.

              


      

       

      
        	
                9.  

              	
                Representations by the
      Parties

              


      

       

      
        	
                9.1.  

              	
                EXCEPT
      AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS
      OR IMPLIED, WITH RESPECT TO INFORMATION AND/OR MATERIAL TO BE SUPPLIED BY
      ANY OF THEM TO THE OTHER, AS TO ANY INFRINGEMENT OF THIRD-PARTY RIGHTS,
      MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR
  PURPOSE.

              


      

       

       

      
        
           

        

        
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        JOINT
DEVELOPMENT AGREEMENT

      

       

      
        	
                9.2.  

              	
                Each
      of the Parties hereby represents and warrants that: (i) it has the means
      and ability to duly carry out all of its undertakings pursuant hereto,
      including but not limited to the necessary know-how, manpower, finance and
      equipment, and the permits and licenses required under any law (if any);
      (ii) it has not assigned, transferred, licensed, pledged or otherwise
      encumbered any of its Background Technology or Intellectual Property
      Rights with respect thereto in a manner inconsistent with the terms of
      this Agreement, or agreed to do so; and (iii) it is not aware of any
      actual or potential violation, infringement or misappropriation of any
      third party rights (or any claim or potential claim thereof) by any of its
      Background Technology (or inherent in the development, use or production
      thereof) or Intellectual Property Rights with respect
    thereto.

              


      

       

      
        	
                9.3.  

              	
                Each
      Party represents and warrants to the other Party that the execution and
      delivery of this Agreement and the fulfillment of the terms hereof: (i)
      will not constitute a default under or conflict with any agreement or
      other instrument to which it is a party or by which it is bound; and (ii)
      do not require the consent of any person or entity, which consent has not
      been acquired prior to the date hereof; and (iii) are and will not be
      precluded by any legal, commercial or other
  restriction.

              


      

       

      
        	
                9.4.  

              	
                Except
      as provided herein, no license or other right is granted, by either of the
      Parties to the other one, by implication, estoppels or otherwise, under
      any jurisdiction or law.

              


      

       

      
        	
                10.  

              	
                Term and
      termination

              


      

       

      
        	
                10.1.  

              	
                The
      term of this Agreement shall be the earlier of three (3) years as of the
      Effective Date or upon the completion of the Development, manufacture,
      marketing and sale of the Joint Development Results, as mutually
      determined by the Parties.

              


      

       

      
        	
                10.2.  

              	
                Upon
      the termination or expiration of this Agreement, the Parties shall each
      immediately return to the other Party any materials and Confidential
      Information which they may have received from such
  Party.

              


      

       

      
        	
                10.3.  

              	
                Sections
      6, 7 and 9-11 shall survive the termination of this
    Agreement.

              


      

       

      
        	
                10.4.  

              	
                Either
      one of the Parties may terminate this Agreement if: (i) it is reasonably
      clear that the Development of the Prototype is not possible for technical
      reasons or a commercial version thereof is not commercially feasible; or
      (ii) if the other Party commits a breach of this Agreement and fails to
      cure such breach within reasonable time not to exceed thirty (30) days
      after written receipt of a demand to do
so.

              


      

       

      
        	
                11.  

              	
                Miscellaneous

              


      

       

      
        	
                11.1.  

              	
                Choice
      of Law. This Agreement shall be governed by and construed in accordance
      with the laws of the State of Louisiana and the United States of America,
      without regard to the conflict of laws provisions thereof. Any dispute
      arising under or in relation to this Agreement shall be resolved pursuant
      to binding arbitration before the American Arbitration Association “AAA”,
      located in Phoenix, Arizona, pursuant to the AAA’s Large, Complex
      Commercial Disputes Procedures.

              


      

       

      
        	
                11.2.  

              	
                Entire
      Agreement. This Agreement constitutes the entire agreement between the
      Parties with respect to the matters referred to herein, and supersedes all
      prior understandings, promises, representations, agreements and
      negotiations between the Parties, oral and
  written.

              


      

       

       

      
        
           

        

        
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      JOINT
DEVELOPMENT AGREEMENT

       

       

      
        	
                11.3.  

              	
                Assignment
      and Amendment. This Agreement may not be assigned by either of the Parties
      to any third party without the consent of the other Party, except that a
      Party may assign and transfer this Agreement and its rights and
      obligations hereunder to any third party who succeeds to substantially all
      its business or assets. Subject to the foregoing, this Agreement is
      binding upon, inures to the benefit of, and is enforceable by each of the
      Party successors and assignees. This Agreement may not be amended or
      modified, except by the written consent of both Parties
      hereto.

              


      

       

      
        	
                11.4.  

              	
                Relationship
      of the Parties. Notwithstanding any provision hereof, for all purposes of
      this Agreement each Party shall be and act as an independent contractor
      and not as partner, joint venturer, or agent of the other and shall not
      bind nor attempt to bind the other to any
  contract.

              


      

       

      
        	
                11.5.  

              	
                No
      failure or delay on the part of any Party hereto in exercising any right,
      power, or remedy hereunder shall operate as a waiver
    thereof.

              


      

       

      
        	
                11.6.  

              	
                No
      liability or loss of rights hereunder shall result to either Party from
      delay or failure in performance caused by force majeure, that is,
      circumstances beyond the reasonable control of the Party affected thereby,
      including, without limitation, acts of God, fire, flood, war, government
      action, compliance with laws or regulations (including, without
      limitation, those related to infringement), strikes, lockouts or other
      serious labor disputes, or shortage of or inability to obtain material or
      equipment.

              


      

       

      
        	
                11.7.  

              	
                Export
      Control. Each Party shall comply with all applicable export laws,
      restrictions, and regulations of any United States or foreign agency or
      authority and will not export or re-export, or authorize the export or
      re-export of any product, technology or information it obtains or learns
      pursuant to this Agreement (or any direct product thereof) in violation of
      any such laws, restrictions or
regulations.

              


      

       

      
        	
                11.8.  

              	
                Headings
      of Sections herein are for the convenience of the Parties only, and are
      not intended to be or to affect the meaning or interpretation of this
      Agreement.

              


      

       

      
        	
                11.9.  

              	
                In
      the event that any covenant, condition or other provision contained in
      this Agreement is held to be invalid, void or illegal by a court of
      competent jurisdiction, the same shall be deemed severable from the
      remainder thereof, and shall in no way affect, impair or invalidate any
      other covenant, condition or other provision therein contained. If such
      condition, covenant or other provision shall be deemed invalid due to its
      scope or breadth, such covenant, condition or other provision shall be
      deemed valid to the extent permitted by
law.

              


      

       

      
        	
                11.10.  

              	
                All
      notices required to be delivered under this Agreement shall be effective
      only if in writing and shall be deemed given if delivered personally upon
      delivery, if by facsimile or other confirmed electronic means upon
      successful transmission and if by registered mail within seventy-two (72)
      hours of posting to the addresses set forth in the preamble of this
      Agreement.

              


      

       

       

      
        	
                 
      

              	
                [Signature
      page follows]

              


      

       

       

      
        
           

        

        
          Page 8 of
10

          
            

          

        

        
           

        

      

       

      
        JOINT
DEVELOPMENT AGREEMENT

      

       

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

       

       

      
        	
                /s/
      Andy Elliott

                CheckPoint

                 

                By:
      Andy Elliott

                Title:
      CEO

                 

              	 
      	
                /w/
      Ian Gardner

                Helix

                 

                By:
      Ian Gardner

                Title: CEO

                 

              


      

      


       

      


      
        
           

        

        
          Page 9 of
10

          
            

          

        

        
           

        

      

      JOINT
DEVELOPMENT AGREEMENT

       

      


       

      Exhibit
A

       

      General
Description of Development Process Responsibilities

       

      


      


      


      
        	
                ·  

              	
                Technical
      Specifications: CheckPoint/Helix

              


      

       

      
        	
                ·  

              	
                Engineering
      Design: CheckPoint

              


      

       

      
        	
                ·  

              	
                S322
      turbine minus electrical generator portion:
  Helix

              


      

       

      
        	
                ·  

              	
                Modifications
      to Turbine, if needed: Helix

              


      

       

      
        	
                ·  

              	
                Design
      for housing for compressor(s), if needed:
  Helix/CheckPoint

              


      

       

      
        	
                ·  

              	
                Fabrication
      of housing for compressor(s), if needed:
  CheckPoint

              


      

       

      
        	
                ·  

              	
                Pneumatic
      components: CheckPoint

              


      

       

      
        	
                ·  

              	
                Prototype
      construction: CheckPoint

              


      

       

      
        	
                ·  

              	
                Prototype
      testing plan: Helix/CheckPoint

              


      

       

      
        	
                ·  

              	
                Prototype
      testing: CheckPoint

              


      

       

       

       

       

      Page 10 of
10