Exhibit 10.11
INTELLECTUAL PROPERTY LICENSE AGREEMENT
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This License Agreement (this "Agreement") is made effective as of
April 1 2000, by and between PowerChannel Holdings, Inc., a Delaware
corporation, located at 00 Xxxxxxxx Xxxxxxxxx, XXX 000, Xxx Xxxx, XX 00000 XXX
(the "Licensor") and PowerChannel Europe Limited, a UK corporation, located at
00 Xxxxx Xxxx Xxxxx, Xxxxxx, XX, X0X 0XX (the "Licensee"), who agree as follows:
ARTICLE I. BACKGROUND
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1.1 Technology. The Licensor is the owner of certain inventions,
technology, expertise, know-how, Intellectual Property, defined in Section 2.5,
and operating methods (the "Technology(ies)") relating to a method and system
for controlling access to a communications medium, such as the Internet, that
provides users access in exchange for responding to queries, where the query
responses can then be provided to third parties. The Technologies have been
developed at great effort and expense and are valuable trade secrets of the
Licensor and are the subject of pending US patent application.
1.2 Right to Use. The Licensee wishes to use the Technology in the
Licensed Territory for the Field of Use (all as such terms are defined below)
and to grant sublicenses to Affiliates. The Licensor will not provide
information regarding the Technology to the Licensee unless and until the
Licensee executes this Agreement and provides adequate assurances that the
Licensee will not analyze the Technology, provide the Technology to any third
parties, reverse engineer the Technology, or otherwise disclose the Licensor's
trade secrets in the Technology.
ARTICLE II. DEFINITIONS
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As used in this Agreement, the following terms shall have the
meanings set forth below:
2.1 "Affiliate" of a business entity means any other business entity
or individual that, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, the business
entity or individual. Such control can be exercised by stock ownership,
contractual relationships, understandings or family relationships.
2.2 "Field of Use" means and any legal use of the Technology.
2.3 "Licensed services or products" means and includes products or
services which use, at least in part, the Technology in any way.
2.4 "Licensed Territory" means Europe (EEA) and Switzerland, and
such additional territories as may be agreed upon by the Licensor and the
Licensee.
2.5 "Intellectual Property" means all confidential information,
patented, patent-pending or unpatented information, unpublished research and
development information, unpatented improvements, discoveries, developments,
know-how, trade secrets, business information and technical data now or later in
the possession or custody of the
Licensor that is necessary or desirable to process, market, or make Licensed
services or products and that the Licensor has the right to provide to the
Licensee, and confidential business information. "Intellectual Property" also
includes any other intellectual property rights including know-how, rights of
confidence, inventions whether patentable or not, patents, utility models, xxxxx
patents, trade and service marks, design rights, copyrights, database rights and
topography rights, in any case whether registered or unregistered and including
applications for, and the right to apply for, any of the foregoing and all
rights or forms of protection having equivalent or similar effect to any of the
foregoing which may subsist anywhere in the world; "Intellectual Property" also
specifically includes published information that, although not secret, has not
been used in the manner disclosed in the Intellectual Property, but does not
include any portions that are now generally known in the industry or that are
now in, or may later come into, the rightful possession or custody of the
Licensee. "Intellectual Property" also does not include any information that is
published or otherwise disclosed to the public by the Licensor or is rightfully
received from third parties having no express or implied obligation of
confidentiality to the Licensor with respect to such information.
2.5 "Technology(ies)" has the meaning as set forth in Sections 1.1
and 2.5.
ARTICLE III. LICENSE
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3.1 Grant. Subject to the terms of this Agreement, the Licensor
hereby grants to the Licensee, and the Licensee hereby accepts only in the
Licensed Territory and only in the Field of Use, a non-transferable exclusive
license to use the Technology to exploit- including to sell, lease, sublicense,
rent, or otherwise provide Licensed services or products, commencing on the date
of this Agreement and continuing in perpetuity unless canceled by either party
as provided for herein. No license under the Technology is granted, and no
license shall be implied, with respect to activities outside the Licensed
Territory or outside the Field of Use.
3.2 Disclosure of Technology. The Licensor shall, on an ongoing
basis, provide the Licensee with any Technology in the Licensor's possession
needed to use, sell, develop and exploit Licensed services and products. The
Licensor shall, at its own convenience and discretion, be available to the
Licensee for consulting purposes during the term of this Agreement.
3.3 No Challenge. The Licensee expressly agrees that it will not
challenge, contest, or dispute the Licensor's claim, right, or title to the
Technology or the trade secret status of any of the Technology in any manner or
form, either directly or indirectly, and the Licensee shall indemnify and hold
harmless the Licensor from any and all claims, disputes, actions, damages, and
costs incurred by the Licensor as a result of the breach of this section.
3.4 Nondisclosure. The Licensee shall maintain all of the Technology
in the strictest confidence, shall limit disclosure of the Intellectual Property
only to those in its organization that have a need to know of the Intellectual
Property, and shall not disclose any of the Technology to third parties
(including the Licensee's Affiliates) during the term of this Agreement or at
any time thereafter, provided, however, that portions of the Technology may
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be disclosed (a) with the prior written consent of the Licensor, or (b) after
the same shall have become public through no fault of the Licensee.
3.5 No Use. The Licensee shall not use any Technology furnished by
the Licensor other than in strict accordance with this Agreement, provided,
however, that the Licensee may use portions of Technology (a) with the prior
written consent of the Licensor or (b) after the same shall have become public
through no act or omission of the Licensee.
3.6 Non-Compete. Licensee may only carry out its business activities
within the Territory and is prohibited from providing any services outside of
the defined Territory which in any way utilizes the Technology or Intellectual
Property or Improvements or conflicts or competes with the Field of Use or
business of the Licensor or PowerChannel Holdings, Inc, or its licensees or
sub-licensees.
3.7 Technology Warranties. The Licensor does not warrant, and
expressly disclaims any warranty, that any Licensed services or products
produced in accordance with the Technology will be free from claims of
infringement of the patents, copyrights or other rights of any third party, or
comply with governmental regulations. The Licensor shall not, except as provided
in this Article III, be under any liability arising out of its supplying of
information under, in connection with, or as a result of this Agreement, whether
on warranty, contract, negligence, or otherwise.
3.8 Third Party License. This Agreement shall not waive, affect or
impair the Licensor's rights to grant exclusive or nonexclusive licenses
relating to the Technology outside of the Licensed Territory, or to grant
exclusive or nonexclusive licenses relating to the Intellectual Property outside
the Field of Use within the Territory.
ARTICLE IV. DEVELOPMENT COST SHARING
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4.1 Initial Development Costs. The Licensee shall pay to the
Licensor a fee to help cover its share of development costs expended to date to
develop the Technology. The initial payment due is $10,000 which shall be paid
no later than May 31, 2000.
4.2 Monthly Costs. The Licensor shall furnish Licensee statements
showing the estimated cost of contemplated development work for each forthcoming
quarter and Licensee shall immediately remit the funds to Licensor.
4.3 Determination of Cost Sharing. The sharing of cost shall be
determined based upon the projected number of subscribers for the coming year
amongst the Licensor (which would include its other licensees) and Licensee. For
the purpose of this Agreement, Licensee hereby agrees that it or its
sub-licensee(s) will be funding the entire development cost through at least
September 30, 2000.
4.4 Other Participants. It is the intention of Licensor, over time,
to enter into similar arrangements with other licensees whereby the proportional
cost to Licensee should drop as other subscribers allow for the proportions to
change between Licensee and Licensor. Licensor intends to charge a similar fee
for Initial Development Costs as it executes various territorial licenses
outside of North America. Any Monies received will only be utilized for
development of the Technology.
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4.5 Accounting True-Up. There shall be an annual accounting of the
actual proportions of subscribers between the Licensor and Licensee. Any
overpayment by Licensee shall be credited to the Licensee's development account
and not directly refunded. Any shortfall shall be paid immediately upon demand
by Licensee to Licensor. No adjustment or recoveries shall be made in respect of
periods prior to the immediately preceding year.
4.6 Use of Licensor Employees. Licensor, at Licensee's cost, shall
provide reasonable access to its employees, agents and contractors for the
express purpose of developing, establishing and operating Licensee's (including
any sublicensee of Licensee) business. Licensee agrees to reimburse Licensor for
all costs associated with this section, including, but not limited to payroll,
travel & lodging, third party fees and other related expenses.
ARTICLE V. MINIMUM COSTS AND BEST EFFORTS
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5.1 Termination. The Licensor may, by written notice to the
Licensee, terminate this Agreement as of a date specified in such notice that is
at least 30 days after the date of such notice, if the Licensee has not used,
sublicensed, sold, or otherwise taken definitive steps towards commercializing
the Technology within but not throughout the Territory within twelve months from
the Effective Date.
5.2 Best Efforts. The Licensee shall pursue a thorough, vigorous and
diligent program to exploit the Technology to maximize sales of the Licensed
services and products in the Licensed Territory for the Field of Use under this
Agreement for the term of this Agreement. Without limitation to the foregoing,
the Licensee agrees to the following schedule of performance goals:
(a) Before June 30, 2000, the Licensor shall send personnel,
as provided for under Section 4.6, to the Licensee's facilities to train the
Licensee's personnel in the practice and use of the inventions disclosed in the
Technology, and Licensee shall have appropriate facilities and personnel
available to receive and learn such information;
(b) By August 31, 2000, the Licensee shall have raised no less
than $10 million capital to finance subscriber deployment to provide for the
commercial exploitation of Licensed services and products.
5.3 Failure to Pay Fees or Use Best Efforts. If the Licensee fails
to pay its allotted development costs as set forth in Sections 4.1 and 4.2, or
fails to complete the actions required in Section 5.2 by the times and dates
specified, time being of the essence, then this Agreement may be terminated by
the Licensor at its sole discretion.
ARTICLE VI. PRODUCT PURCHASE.
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6.1 Authorized Source. The Licensee shall obtain and purchase all
services from vendors approved by Licensor. Licensor shall provide Licensee with
a list of approved vendors and the category of services for which approved
vendors must be utilized. Other than
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the use of third party vendors, Licensee is not required to purchase any
additional services from Licensor, except for those provided at cost, unless the
services are specified herein.
ARTICLE VII. SUBLICENSING
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7.1 Sublicensees. Sublicensing of this Agreement in the Field of Use
and the Licensed Territory shall be the responsibility of the Licensee, with the
prior written consent of the Licensor, not to be unreasonably withheld or
delayed. It is the intent of the parties that sublicenses in the Field of Use
and the Licensed Territory shall be available to Affiliated parties on fair and
reasonable terms. Sublicenses may be nonexclusive or exclusive sublicenses
within the Field of Use and the Licensed Territory and shall not be
transferable. The Licensee shall furnish the Licensor with a copy of each
sublicense agreement within fifteen (15) days of execution. Licensor expressly
agrees that Licensee may sublicense this License within the UK and Ireland to
PowerChannel Limited, under the terms of the sub-license agreement attached to
this License as Appendix I.
7.2 Assignment. If this Agreement expires or is terminated for any
reason, all of the Licensee's right, title and interest in and to any and all
sublicenses shall be automatically assigned and conveyed to the Licensor,
including the right to receive all income from the sublicensees. The Licensee
shall, prior to the execution of each such sublicense, obtain the sublicensee's
written agreement to this provision, and each sublicense agreement shall contain
a provision requiring such an assignment. In the event the Licensor desires a
written assignment evidencing the effect of this section, the Licensee shall
execute such an assignment. Licensor, by virtue of having approved
sub-licensees, shall honor the agreements in the place of the Licensee.
7.3 Subject to License. Each sublicense shall specifically state
that it is expressly subject to this Agreement. Any sublicense that does not so
state shall be null, void and of no force or effect.
ARTICLE VIII. PAYMENTS
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8.1 Payments Due. All payments due under this Agreement are due and
payable immediately upon demand. Without limiting the forgoing, no payment shall
be more later than 15 business days after being presented for payment.
8.2 Interest On Overdue Amounts. Any amounts not paid when due shall
bear interest at the rate of five percent (5%) over LIBOR per annum, for the
time period until payment is received by the Licensor or at the highest rate
allowed by applicable law, whichever is less.
8.3 Form of Payments. All payments required by this Agreement shall
be in currency of the United States of America, and shall be in the form of
cash, a bank cashier's check, a certified check, or other immediately available
funds.
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ARTICLE IX. REPRESENTATIONS, COVENANTS, AND DISCLAIMER OF WARRANTIES
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9.1 Organization, Standing and Authority of Licensee. The Licensee
represents to the Licensor that the Licensee is validly existing and in good
standing under the laws of the state of its incorporation and has all requisite
power and authority to carry on the business and to own the property that it now
carries on and owns, and has all requisite power and authority to execute and
deliver this Agreement and to observe and perform all the provisions of this
Agreement. The execution and delivery of this Agreement have been duly
authorized by the Board of Directors of the Licensee and, to the extent required
by law, by the stockholders of the Licensee, and no other corporate action is
requisite to the execution and delivery of this Agreement. The Licensee also
represents that the Licensee has no present intent to sell or transfer any stock
or to change the organization of the Licensee.
9.2 Compliance with Laws. The Licensee covenants and agrees to
comply with all applicable laws, rules, and regulations related to the
Licensee's rights and obligations under this Agreement and the Licensee's
activities with relation to this Agreement, and the Licensee further covenants
not to violate any rights of third parties, be they in the nature of
intellectual or other property rights or otherwise, in any manner that would
expose the Licensor to claims by third parties based upon the conduct of the
Licensee and the Licensee shall indemnify, defend, and hold harmless the
Licensor against any and all such claims.
9.3 Disclaimer. Nothing in this Agreement shall be deemed to be a
representation or warranty by the Licensor of the accuracy, safety, or
usefulness for any purpose, of any Intellectual Property or other information,
techniques or practices at any time made available by the Licensor. The Licensor
shall have no liability whatsoever to the Licensee or to any other person for or
on account of any injury, loss, or damage, of any kind or nature, sustained by,
or any damage assessed or asserted against, or any other liability incurred by
or imposed upon the Licensee or any other person, arising out of or in
connection with or resulting from (a) the production, assembly, use, failure to
operate, defective design, lease, license, import, offer, or sale of any
Licensed services or products; (b) the use of any Intellectual Property, or
other information, techniques or practices disclosed by the Licensor; or (c) any
advertising or other promotional activities with respect to any of the
foregoing. The Licensee shall defend, indemnify, and hold harmless the Licensor
and its successors, assigns, agents, and employees against any claim for which
the Licensor may be or become liable.
9.4 Indemnification and Insurance. The Licensee shall defend,
indemnify, and hold harmless the Licensor and its successors, assigns, agents,
and employees from and against all claims, suits, costs, damages, judgments,
attorney fees, license fees, settlement or expenses incurred, claimed, obtained,
or sustained by third parties, whether for personal injury, intellectual
property infringement, misappropriation, or otherwise because of or with
relation to the use, failure to operate, defective design, marketing,
distribution, lease, import, offer to sell, or sale of the Licensed services or
products.
The Licensee shall maintain at its own expense in full force and
effect at all times during the term of this Agreement, with a responsible
insurance carrier acceptable to the Licensor, at least a two million dollar
liability insurance policy with such insurance shall naming the Licensor as an
additional insured, and shall provide for at least thirty days' prior written
notice to the Licensor and the Licensee of the cancellation or any substantial
modification of the policy.
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9.5 No Challenge. The Licensee shall not analyze or reverse
engineer, or have analyzed or reverse engineered, any of the Intellectual
Property or Technology, nor shall the Licensee challenge, object to, or dispute
the Intellectual Property, the status of the Intellectual Property as a trade
secret, or the Licensor's right, title, and interest in and to the Intellectual
Property.
9.6 Employee Nondisclosure Agreement. The Licensee shall cause all
of its officers, directors, and employees to execute an agreement, in a form to
be reasonably approved by Licensor, in which such employees agree and covenant
that they will not, during and after the term of their employment with the
Licensee, disclose any information received with regard to the Technology.
ARTICLE X. EXPIRATION AND TERMINATION
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10.1 Technology. The Licensee's obligations under this Agreement
shall remain in effect as long as the Licensee continues to use or sell products
or services utilizing the Technology regardless of whether the Technology
becomes disclosed to the public, but the nondisclosure, and nonuse obligations
of this Agreement shall survive termination and continue until such time as the
Licensor elects to abandon such terms and written notice of such abandonment is
received by Licensee.
10.2 Insolvency and Default. If either party shall be in default of
any obligation hereunder, or if the Licensee shall be adjudged bankrupt, or
become insolvent, or make an assignment for the benefit of creditors, or be
placed in the hands of a receiver or a trustee in bankruptcy, the other party
may terminate this Agreement by giving thirty (30) days' notice by registered or
certified mail to the defaulting party, specifying the bases for termination. If
within thirty (30) days after the receipt of such notice, the party who received
notice shall remedy the condition forming the basis for termination, such notice
shall cease to be operative and this Agreement shall continue in full force and
effect. In the event of a default under this Agreement, the nondefaulting party
shall be entitled to any and all remedies at law or in equity. Without in any
way limiting the foregoing, any uses by the Licensee of the Technology during
any time or for any purpose other than those specified in this Agreement shall
constitute misappropriation of the Licensor's Technology and a material breach
of this Agreement, entitling the Licensor to immediate injunctive and monetary
relief.
10.3 Nondisclosure. Notwithstanding the provisions of Sections 3.3
and 3.4, if this Agreement is terminated, the Licensee agrees; (a) that it will
not make, use, distribute, sell, use, or otherwise dispose of any Licensed
services or products incorporating or made using Technology for a period of one
(1) year after such termination; and (b) that it will promptly transfer to the
Licensor all written, computer, or electronic copies and originals of
unpublished Technology in its possession or control and will delete all
Technology from all computer data bases or other storage media under the
Licensee's control.
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10.4 Surviving Obligations. The word "termination" and cognate words
such as "term" and "terminate," are to be read, except where the contrary is
specifically indicated, as omitting from their effect the following rights and
obligations, all of which survive any termination to the degree necessary to
permit their complete fulfillment or discharge:
(a) Licenses, releases, and agreements of nonassertion running
in favor of customers or transferees of the Licensee with respect to
products sold or transferred by the Licensee prior to any termination and
on which royalties shall have been paid as provided in Section 4.1 and 4.2
of this Agreement.
(b) Any cause of action or claim of the Licensor accrued or to
accrue, because of any breach or default by the Licensee.
(c) The representation and disclaimer of warranties of
Article IX.
ARTICLE XI. LITIGATION
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11.1 Misappropriation. The Licensee shall notify the Licensor in
writing of any suspected misappropriation of the Technology or any loss of
confidentiality of the Technology promptly upon becoming aware of such suspected
misappropriation or loss of confidentiality, setting forth the kind and
character of the possible misappropriation or loss, the places, dates and
locations of suspected misappropriations or losses, and any other pertinent
information that the Licensee may have.
The Licensee shall, in the Licensor's name (if required by law,
otherwise, in the Licensee's name) but at the Licensee's sole expense, xxx third
parties for misappropriation of the Technology in the Licensed Territory, and
the Licensor shall, at the Licensee's sole expense, fully and promptly cooperate
and assist the Licensee in connection with any such suit. The Licensee shall,
within ten (10) days after receipt of an itemized statement for the Licensor's
expenses, reimburse the Licensor for such suit-associated expenses, together
with any pre-suit expenses incurred by the Licensor. Any amounts not reimbursed
by the Licensee to the Licensor within such ten-day period shall bear interest
at the rate set forth in Section 8.2 of this Agreement. All damages, awards, and
settlement proceeds in such suit shall be the Licensee's.
If the Licensee, after notice of an alleged misappropriation shall,
within sixty (60) days fail to institute suit, the Licensor, in its own name
(or, if required by law, in its and the Licensee's name) and at its own expense,
may xxx therefore, and the Licensee shall fully and promptly cooperate and
assist the Licensor in connection with any such suit. All damages, awards, and
settlement proceeds in such suit shall be the Licensor's.
Nothing in this Agreement is intended to require the Licensor to
xxx, or to preclude the Licensor from suing for any misappropriations and to
collect for its own use all damages, profits and awards of whatever nature
recoverable for such misappropriation in the Licensed Territory. The Licensee
shall fully cooperate with the Licensor in any misappropriation actions, at such
times and in such manners as the Licensor may reasonably request.
ARTICLE XII. RECORDS
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12.1 Creation, Maintenance and Retention. The Licensee agrees to
keep records showing the lease, sale, licensing, or other disposition of
Licensed services and products in sufficient detail to enable Licensor to
accurately determine subscriber levels. The Licensee shall permit the Licensor
or its duly authorized agent to inspect all such records and
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to make copies of or extracts from such records at all the Licensee's business
premises during all regular business hours throughout the term of this Agreement
and for a reasonable period of not less than three (3) years thereafter. In the
event that the Licensee shall move any of such records, the Licensee shall first
give at least thirty (30) days' prior written notice to the Licensor and give
the Licensor the opportunity to copy any and all records intended to be moved.
Such examinations are to be made at the expense of the Licensor by any auditor
appointed by the Licensor who shall be acceptable to the Licensee, or, at the
option and expense of the Licensor, by a Certified Public Accountant appointed
by the Licensor. If any such audit discloses that fees have been underpaid by an
amount exceeding five percent (5%), the Licensee shall pay the full costs of the
audit, along with all royalties payable, and interest at the rate set forth in
Section 8.2, calculated from the date originally due. All such records shall be
retained for a period of at least three (3) years after the termination or
expiration of this Agreement.
XIII. MISCELLANEOUS
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13.1 Severability. The parties agree that if any provision of this
Agreement is determined to be invalid or unenforceable, such provision shall be
deemed automatically amended to the extent necessary to comply with the law and
shall be enforceable to the full extent allowable under the law, and the
validity and enforceability of the remaining provisions shall remain unaffected.
13.2 Court Decision. If the legality of any provision of this
Agreement is brought into question because of a decision by a court of competent
jurisdiction of any country in which this Agreement applies, the Licensor, by
written notice to the Licensee, may revise the provision in question or may
delete it entirely so as to comply with the decision of that court.
13.3 Waiver. The waiver of any breach hereunder may be effected only
by a written instrument signed by the waiving party and shall not constitute a
waiver of any other breach. Any failure by the Licensor to insist upon the
strict performance by the Licensee of any of the terms and provisions hereof
shall not be deemed to be a waiver of any of the terms and provisions hereof and
the Licensor, notwithstanding any such failure, shall have the right thereafter
to insist upon the strict performance by the Licensee of any and all of the
terms and provisions of the Agreement to be performed by the Licensee.
13.4 Integration. This Agreement contains the entire understanding
between the parties with respect to licensing of the Intellectual Property, and
supersedes all other representations and agreements, express or implied, between
the parties concerning the Intellectual Property, except for any nondisclosure
agreement or trademark license agreement previously or concurrently entered into
between the parties.
13.4 No Patent License. No rights or obligations other than those
expressed or recited in this Agreement are to be implied. Without limitation to
the foregoing, this Agreement does not grant any license under any patents
(existing or future) or for any use of the Technology, except as specifically
authorized by this Agreement. In the event that a patent or patents shall issue
for the Technology, the Licensor and the Licensee shall enter into a separate
agreement to license such patent or patents under similar terms and conditions.
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13.7 Amendment. This Agreement may be amended only by a written
instrument signed by both parties, except as provided in Section 13.2 above.
13.8 Additional Instruments. Each party shall execute any
instruments reasonably believed by the other party to be necessary to implement
the provisions of this Agreement.
13.9 Governing Law. This Agreement shall be construed and enforced
in accordance with the laws of the State of New York. The Courts of the State of
New York and the United States District Court for the District of New York shall
have exclusive jurisdiction over any dispute relating to this Agreement and no
legal action relating to this Agreement shall be brought in any other
jurisdiction.
13.10 Grantbacks. The Licensee hereby grants to the Licensor a
perpetual, worldwide, exclusive, nonassignable, royalty-free license under all
present and future inventions, improvements, developments, patents and technical
information relating to the Technology in the Field of Use now or hereafter
conceived, owned by or under the control of the Licensee or its Affiliates,
solely or jointly with others. Licensor is free to incorporate items granted
hereunder into its existing Intellectual Property and license rights to use the
new Intellectual Property to some or all licensees. Regardless, Licensee shall
be free to utilize any developments, improvements and other materials granted
back to Licensor in its daily operations. Licensor must forthwith disclose to,
and allow Licensee to use all improvements made by Licensor it its licensees.
13.11 Export of Technology. The Licensee agrees to comply with the
laws and rules of the United States government regarding prohibition of
exportation of Intellectual Property furnished to the Licensee either directly
or indirectly by the Licensor.
13.12 Trademark. All Licensed Products shall be sold under the
trademarks required by Licensor. The Licensee agrees that it will not do or
permit any action or thing whereby any of the Licensor's rights to use any
trademark, trade name or design might be endangered and that the Licensee will
not claim any rights in the Licensor's trademarks except as a licensee under any
trademark license with the Licensor. The Licensee shall, immediately upon
request, assign to the Licensor any rights in and to the Licensor's trademarks
that the Licensee might acquire under this Agreement or otherwise.
13.13 Notices. All notices, demands or documents to be delivered
under this Agreement shall be given in writing and sent by registered or
certified mail addressed to the parties at their respective addresses as set
forth on the first page of this Agreement. Such addresses may be changed by the
addressee by serving notice as above provided. Service of such notice shall be
deemed complete on the earlier to occur of the actual date of delivery or three
(3) days after mailing.
13.14 Parties in Interest. As and when used herein, the terms
"Licensor" and "Licensee" shall mean and include the Licensor and the Licensee
and their respective heirs, personal representatives, successors and permitted
assigns. If the Licensee consists of more than one person or entity, then all
obligations and liabilities of the Licensee shall constitute the joint and
several obligation and liability of each such person or entity.
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13.15 Effective Date. This Agreement shall become effective as the
date first above written.
13.16 Assignment. This Agreement imposes personal obligations on the
Licensee. The Licensee shall not assign any rights or obligations under this
Agreement without the prior written consent of the Licensor, which may be
withheld in the Licensor's sole discretion. The Licensee shall not create, or
suffer to be created, any lien or other encumbrance on this Agreement or on any
monies to be paid to the Licensor under this Agreement. The Licensor may assign
its rights hereunder without the Licensee's consent.
13.17 Authority. By signing below, the signatories warrant and
represent their authority to execute this Agreement on behalf of the parties.
13.18 Time of Essence. Time is of the essence in the performance of
the Licensee's obligations under this Agreement.
13.19 No Joint Venture. The execution of this Agreement and the
performance of the provisions herein are not intended, and shall not be
construed, to create a partnership or joint venture between the Licensor and the
Licensee.
IN WITNESS WHEREOF, the Licensor and the Licensee have executed this
Agreement as of the Effective Date.
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Signed by Xxxxx X. Xxxxxxxx Signed by Xxxxxxx X. Xxxxxxx
President Chief Financial Officer
for and on behalf of for and on behalf of
POWERCHANNEL HOLDINGS, INC. POWERCHANNEL EUROPE LIMITED
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