EXCLUSIVE license agreement
EXCLUSIVE
license agreement
Between
CLENERGEN
CORPORATION
And
BIOPOWER
CORPORATION
November
30, 2010
1
This
Agreement (the "Agreement"), dated November 30, 2010 (the Effective Date) is
entered into by and between Clenergen Corporation, a Nevada corporation and
public company (Licensor) and BioPower Corporation, a Florida corporation
(Licensee).
WHEREAS,
Licensor produces high-density, short-rotation biomass crops on a
commercial scale using a proprietary integrated farming methodologies,
and
WHEREAS, Licensor produces
power, steam, hydrogen, transport fuel, fertilizers, pesticides, chemicals and
other important products through advanced gasification and steam technologies,
and
WHEREAS, Licensor has certain
rights to the use of various technologies and processes, and
WHERAS, Licensee has been
established to, among other activities, collaborate with Licensor in developing
biomass projects and gasification and steam process projects in exclusive
territories, and
WHEREAS, Licensor has agreed
to grant and Licensee has agreed to take, an exclusive license, for a territory,
to the rights relating to certain manufacturing, processing, marketing and the
sale of products produced through the use of Licensor’s proprietary processes on
the terms set out in this agreement.
NOW, THEREFORE, Licensor and
Licensee agree as follows:
Agreed
terms
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Interpretation
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1.1
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The
definitions and rules of interpretation in this clause 1 apply in this
agreement.
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Business Day: a day other than
a Saturday and a Sunday on which banks in the United States are open for
business.
Field of Use: Production of (i)
high-density, short-rotation biomass crops on a commercial scale using a
proprietary integrated farming methodology and (ii) power, steam, hydrogen,
transport fuel, fertilizers, pesticides, chemicals and other important products
through advanced gasification; steam technologies and any and all
other technologies.
Improvement: any improvement, enhancement
or modification to the Licensed Technologies.
License: an
exclusive license for the defined territory.
Licensed Technologies: the
technologies and processes owned by Clenergen, patented by Clenergen or in which
Clenergen may have license rights to, and have the right to sub license in the
Territory, and as may be described in Schedule 1, attached hereto and made a
part thereof.
Quarterly Period: the period of
three months commencing on 1 January, 1 April, 1 July and 1
October.
2
Gross
Revenue: defined as the total amount of revenue less the
direct costs paid for producing the revenue.
Royalty Rate: an agreed percentage of the
annual Gross Revenue of BioPower.
Exclusive Territory: United States, Central
America, Mexico, Guam and Cuba.
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1.2
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Clause
headings shall not affect the interpretation of this
agreement.
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1.3
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A
person includes a
corporate or unincorporated body (whether or not having separate legal
personality).
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1.4
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Words
in the singular shall include the plural and vice
versa.
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1.5
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A
reference to one gender shall include a reference to the other
genders.
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1.6
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A
reference to a law is a reference to it as it is in force for the time
being, taking account of any amendment, extension, application or
re-enactment and includes any subordinate legislation for the time being
in force made under it.
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1.7
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Writing or written does not include
fax or email.
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Grant
of License
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2.1
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The
Licensor hereby grants to the Licensee an exclusive license under the
Field of Use, to use the Licensed Technologies in the Territory.
Licensor agrees to allow Licensee the right to develop projects
throughout South America, Haiti and the U.S. Virgin islands on a case by
case basis and with written notice from the Licensee to the Licensor. The
Licensee is prohibited from developing projects in the countries of Guyana
and Suriname.
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2.2
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The
Licensee shall have no right to grant sub-licences under this agreement
unless it is to a subsidiary or joint venture company of the Licensee, and
hereby undertakes not to purport to do
so.
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2.3
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The
Licensor shall retain ownership of and the management of any brands
relating to its business and shall allow the Licensee to use such brands
provided that the Licensee complies with all instructions of the Licensor
in respect of the use of the same.
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2.4
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No
further right or licence is granted by the Licensor to the Licensee by
this agreement, save as expressly set out in this clause
2.
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2.5
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Provided
that the Licensee retains an exclusive licence in respect of the Licensed
Technologies, the Licensor undertakes, during the term of this agreement
not to exploit the Licensed Technologies in the Territory in the Field of
Use, or to purport to grant others the right to do
so.
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Obligations
of the Licensee
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3.1
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The
Licensee shall comply with all requirements of the Licensor as to the use
of any and all brand relating to the business of the
Licensor.
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3
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3.2
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The
Licensee shall use its best endeavours to promote and develop projects
with the Licensor throughout the
Territory.
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4.
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Further
Licences
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The
Licensor agrees to include any and all additional technologies and
processes that it may develop or gain access to in the future and that may
enhance the business of the Licensee relative to the Field of Use in the
Territory. Any such technologies and processes shall be included,
from time to time and when relevant, in this Agreement on the attached Schedule
One and will be attached hereto and made a part
thereof.
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Provision
of know-how
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The
Licensor shall make available to the Licensee such know-how relating to
the Licensed Technologies as the Licensor may reasonably consider being
necessary for the purposes of the Licensee properly developing and
managing projects in the Territory.
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5.2
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The
know-how supplied by the Licensor under clause 5.1 shall be used by the
Licensee only for the purpose of the development of projects in the
Territory, in the Field of Use and shall be subject to the provisions of
Clause 8.
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Improvement
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If
the Licensee at any time develops any Improvement or gains access to any
new technology or process to enhance the Field of Use it shall, to the
extent that it is not prohibited by law or by any obligation to any other
person, promptly notify the Licensor in writing, giving details of the
Improvement or new technology or process and shall provide to the Licensor
such information as it shall reasonably require to be able effectively to
evaluate the Improvement or new technology or process. Should the Licensor
then so request, the Licensee shall grant to the Licensor a non-exclusive
irrevocable world-wide license without limit of time with the right to
assign and to grant sub-licenses thereunder in respect of that Improvement
or new technology or processes.
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Confidentiality
and indemnification
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The
Licensee undertakes that it shall keep (and it shall procure that its
respective directors and employees keep) secret and confidential all
know-how relating to the Licensed Technologies and any information
(whether or not technical) of a confidential nature to the Licensor
communicated to it by the Licensor, either preparatory to, or as a result
of, this agreement, and shall not disclose the same or any part of the
same to any person other than its directors or employees directly or
indirectly concerned in the development of projects, provided that, before
any such disclosure takes place, the Licensee shall procure that each of
the directors and employees concerned shall execute a confidentiality
undertaking with the Licensor in a form approved by the Licensor, such
approval not to be unreasonably
withheld.
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7.2
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The
provisions of clause 7.1 shall not apply to such know-how and information
as the Licensee:
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(a)
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can
prove to have been in its possession at the date of receipt, or which
becomes public knowledge otherwise than through a breach of an obligation
of confidentiality owed (whether directly or indirectly) to the Licensor;
or
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4
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(b)
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is
necessarily disclosed as a result of the marketing of, developing or
management of any project.
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7.3
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The
Licensee shall, at the request of the Licensor but at the expense of the
Licensee, take such steps as the Licensor may require to enforce any
confidentiality undertaking given by a director or employee of the
Licensee including, in particular but without limitation, the initiation
and prosecution of any legal proceedings and the enforcement of any
judgment obtained. All such steps to be taken by the Licensee shall be
taken as expeditiously as possible and the Licensee agrees that, in
respect of its obligation to enforce confidentiality undertakings, time
shall be of the essence in complying with the requirements of the
Licensor.
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7.4
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The
provisions of this clause 7 shall remain in force notwithstanding expiry
or earlier termination of this
agreement.
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7.5
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LICENSOR
shall indemnify, defend and hold LICENSEE harmless from and against any
and all Losses resulting from or arising out of the negligence or wilful
misconduct of LICENSOR in the performance of its obligations under this
Agreement. Without limiting the generality of the foregoing,
LICENSOR shall indemnify, defend and hold LICENSEE harmless from and
against any losses relating to product liability claims solely with
respect to LICENSOR Products which may be purchased, designed, developed
and manufactured solely and independently by
LICENSOR.
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7.6
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LICENSEE
shall indemnify, defend and hold LICENSOR harmless from and against any
losses resulting from or arising out of the negligence of willful
misconduct of LICENSEE in performing its obligations under this Agreement.
Without limiting the generality of the foregoing, LICENSEE shall
indemnify, defend and hold LICENSOR harmless from and against any losses
resulting from any defect or deficiency with respect to any LICENSEE
contribution which is the subject of the cooperative efforts pursuant to
this Agreement.
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7.7
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A
Party seeking indemnification (the "Indemnified Party") pursuant to this
Section shall notify, in writing, the other Party (the "Indemnifying
Party") within fifteen (15) days of the assertion of any claim or
discovery of any fact upon which the Indemnified Party intends to base a
claim for indemnification. An Indemnified Party's failure to so notify the
Indemnifying Party shall not, however, relieve the Indemnifying Party from
any liability under this Agreement to the Indemnified Party with respect
to such claim except to the extent that such Indemnifying Party is
actually denied, during the period of delay in notice, or materially
prejudiced with respect to, the opportunity to remedy or otherwise
mitigate the event or activity(ies) giving rise to the claim
for indemnification and thereby suffers or otherwise
incurs additional quantifiable damages as
a result of such failure. The
Indemnifying Party, while reserving the right to contest its obligations
to indemnify hereunder, shall be responsible for the defense of any claim,
demand, lawsuit or other proceeding in connection with which the
Indemnified Party claims indemnification hereunder. The Indemnified Party
shall have the right at its own expense to participate jointly with the
Indemnifying Party in the defense of any such claim, demand, lawsuit or
other proceeding, but with respect to any issue involved in such claim,
demand, lawsuit or other proceeding with respect to which the Indemnifying
Party has acknowledged its obligation to indemnify the Indemnified Party
hereunder, the Indemnifying Party shall have the right to select counsel,
settle, try or otherwise dispose of or handle such
claim, demand, lawsuit or
other proceeding on such terms as the Indemnifying
Party shall deem appropriate, subject to any reasonable objection of the
Indemnified Party.
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5
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Royalty
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In
consideration of the rights granted under clause 2, the Licensee shall pay
to the Licensor royalties, on each twelve month time period, first
calculated from the date of execution of this Agreement, and calculated on
a scale as follows:
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(a)
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8%
of the first $50,000,000.00 of Gross Revenue, or any part
thereof,
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(b)
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3%
of the second $50,000,000.00 of Gross Revenue, or any part
thereof
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(c)
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1%
of any and all Gross Revenue over
$100,000,000.00.
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8% will
be the licensee fee on the first $50,000,000.00 of Gross Revenue providing that
Clenergen never charges anyone else a lesser percentage, and if so, then the 8%
will revert to the lowest of any percentage Clenergen charges for a license
fee.
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8.2
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Royalties
payable under this agreement shall be paid in US Dollars within 30
days of the end of each successive Quarterly
Period.
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8.3
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At
the same time as payment of royalties falls due, the Licensee shall submit
or cause to be submitted to the Licensor a statement in writing recording
the calculation of such royalties payable and
due.
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8.4
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The
Licensee shall keep proper records and books of account and be open at all
times to inspection and audit by the Licensor (or its duly authorised
agent or representative), who shall be entitled to take copies of or
extracts from the same. If such inspection or audit should reveal a
discrepancy in the royalties paid from those payable under this agreement,
the Licensee shall immediately make up the shortfall and reimburse the
Licensor in respect of any professional charges incurred for such audit or
inspection.
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8.5
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The
provisions of this clause 8 shall remain in effect notwithstanding
termination or expiry of this agreement until the settlement of all
subsisting claims by the Licensor.
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Protection
of the Licensed Technologies
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9.1
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In
the event that:
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(a)
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any
Licensed Technology is attacked or opposed;
or
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(b)
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any
application for a patent is made by or any patent is granted to a third
party by reason of which the third party may be granted, or may have been
granted, rights which conflict with any of the rights granted to the
Licensee under any Licensed Technology;
or
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(c)
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any
unlicensed activities are carried on by any third party which could
constitute an infringement of any Licensed Technology;
or
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(d)
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any
application is made for a compulsory licence under any Licensed
Technology,
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the party
becoming aware of such a matter shall immediately notify the other of it and
upon the request of one party the other shall join it in taking all such steps
(if any) as may be desirable for the protection of the rights of the Licensor
under the Licensed Technologies. The expenses incurred in taking such steps and
any profits or damages which may be obtained shall be (in the absence of
agreement to the contrary) for the account of the Licensor.
6
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Duration
and termination
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10.1
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This
agreement shall come into force on the date on which it is signed by both
parties and shall, unless determined in accordance with clause 12.2,
remain in force.
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The
Licensor shall have the right to terminate this agreement immediately by
notice in writing to the Licensee in the event
that:
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(a)
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the
Licensee fails to perform or observe any of its obligations under this
agreement, provided that, in a case where the Licensor considers the
breach to be remediable, such notice from the Licensor shall also require
the Licensee to remedy such breach and if the Licensee so remedies within
90 days of such notice being served, such notice to terminate this
agreement shall be deemed to be void and of no effect;
or
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(b)
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an
interim order is applied for or made, or a voluntary arrangement approved,
or a petition for a bankruptcy order is presented or a bankruptcy order is
made against the Licensee, or a receiver or trustee in bankruptcy is
appointed of the estate of the Licensee or a voluntary arrangement is
proposed or approved or an administration order is made, or a receiver or
administrative receiver is appointed of any of the assets or undertaking
of the Licensee , or a winding-up resolution or petition is passed or
presented (otherwise than for the purposes of solvent reconstruction or
amalgamation) or any circumstances arise which entitle the court or a
creditor or the company or its directors to appoint a receiver,
administrative receiver or administrator or to present a winding-up
petition or make a winding-up order, or other similar or equivalent action
is taken against or by the Licensee by reason of its insolvency or in
consequence of debt;
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(c)
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the
Licensee challenges the validity of any of the Licensed
Technologies;
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10.3
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In
the event of expiry or termination of this agreement howsoever arising,
and subject to any express provisions set out elsewhere in this
agreement:
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(a)
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all
outstanding sums payable by the Licensee to the Licensor shall immediately
become due and payable;
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(b)
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all
rights and licences granted pursuant to this agreement shall
cease;
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(c)
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the
Licensee shall cease all and any exploitation of the Licensed Technologies
and of any know-how provided by the Licensor to the Licensee, except
insofar as such know-how ceases or has ceased to be confidential, unless
this is or was as a consequence of the default of the
Licensee;
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(d)
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the
Licensee shall co-operate with the Licensor in the cancellation of all or
any licences registered pursuant to this agreement and shall execute such
documents and do all acts and things as may be necessary to effect such
cancellation;
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(e)
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the
Licensee shall return promptly to the Licensor all technical and
promotional material in its possession relating to the Product and the
know-how, and all copies of such material to the extent such material
remains confidential; and
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7
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10.4
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The
expiry or termination of this agreement for any reason shall be without
prejudice to the provisions of this clause 12 and to any rights of either
party which may have accrued by, at or up to the date of such
termination.
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Assignment
and transfer of Licensed
Technologies
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11.1
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The
Licensee shall not assign, transfer, mortgage, charge, encumber or
otherwise deal in any other manner with this agreement or any of its
rights and obligations under this agreement, or purport to do any of the
same.
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11.2
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Should
the Licensor seek to transfer its ownership of the Licensed Technologies
to any other person then it shall serve written notice on the Licensee
advising it of:
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(a)
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the
fact that it wishes to transfer the Licensed Technologies and to whom;
and
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(b)
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the
terms by which it intends to transfer the Licensed
Technologies,
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and the
Licensee shall have the first option to acquire the ownership of the Licensed
Technologies on terms no less favorable than those being offered to the other
party to whom the Licensor wishes to transfer the Licensed
Patents. .
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12.
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Unenforceability
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12.1
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If
any provision of this agreement (or part of any provision) is found by any
court or other body of competent jurisdiction to be invalid, unenforceable
or illegal, the other provisions shall remain in
force.
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12.2
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If
any invalid, unenforceable or illegal provision would be valid,
enforceable and legal if some part of it were deleted, the provision shall
apply with whatever modification is necessary to give effect to the
commercial intention of the
parties.
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Waiver
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No
failure or delay by a party to exercise any right or remedy provided under this
agreement or by law shall constitute a waiver of that (or any other) right or
remedy. No single or partial exercise of such right or remedy shall preclude or
restrict the further exercise of that (or any other) right or
remedy.
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Variation
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No
variation or agreed termination of this agreement or of any document referred to
in it shall be effective unless it is in writing and signed by or on behalf of
each of the parties.
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Further
assurance
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The
parties shall (at their own expense) use all reasonable endeavors to procure
that any necessary third party shall execute such documents and perform such
acts as may reasonably be required for the purpose of giving full effect to this
agreement.
8
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Entire
agreement
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16.1
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This
agreement (and any document referred to in it) constitutes the whole
agreement between the parties and supersedes all previous agreements
between the parties relating to its subject
matter.
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16.2
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Each
party acknowledges that, in entering into this agreement (and any document
referred to in it), it has not relied on, and shall have no right or
remedy in respect of, any statement, representation, assurance or warranty
(whether made negligently or innocently) other than as expressly set out
in this agreement.
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16.3
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Nothing
in this clause 18 shall limit or exclude any liability for
fraud.
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17.
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Notice
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17.1
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Any
notice required to be given hereunder by either party to the other shall
be in writing and shall be served by sending the same by registered or
recorded delivery post or facsimile to the registered office of the other
party or to such other address as that party may have previously notified
to the other as being the address for such service. Any notice sent by
mail shall be deemed (in the absence of evidence of earlier receipt) to
have been delivered 5 days after being mailed and, in proving the fact of
mailing, it shall be sufficient to show that the envelope containing such
notice was properly addressed, stamped and posted. Any notice sent by fax
shall be deemed to have been delivered on the day following its
despatch.
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Clenergen
Corporation
0000
Xxxxx Xxxx
Xxxxx
000
Xxxxxxx
Xxxxx, XX 00000 XXX
Attn:
Xxxx XX Xxxxx, Chairman
BioPower
Corporation
0000
Xxxxx Xxxx
Xxxxx
000
Xxxxxxx
Xxxxx, XX 00000 XXX
Attn:
Xxxxxx X. Xxxx, CEO
A notice
or other communication required to be given under this agreement shall not be
validly given if sent by e-mail.
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17.2
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The
provisions of this clause 19 shall not apply to the service of any
proceedings or other documents in any legal
action.
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Rights
of third parties
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A person
who is not a party to this agreement shall not have any rights under or in
connection with it.
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Governing
law and jurisdiction
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19.1
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This
agreement and any dispute or claim arising out of or in connection with it
or its subject matter or formation (including non-contractual disputes or
claims) shall be governed by and construed in accordance with the laws of
the State of Florida.
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9
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19.2
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The
parties irrevocably agree that the courts of the State of Florida shall
have exclusive jurisdiction to settle any dispute or claim that arises out
of or in connection with this agreement or its subject matter or formation
(including non-contractual disputes or
claims).
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This
agreement has been entered into on the date stated at the beginning of this
agreement.
IN WITNESS WHEREOF, the parties hereto
have executed and delivered this agreement as a deed the day and year first
before written.
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CLENERGEN
CORPORATION
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Dated: 11-30-2010
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Xxxx
XX Xxxxx, CEO
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BIOPOWER
CORPORATION
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Dated: 11-30-2010
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Xxxxxx
X. Xxxx, CEO
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