EXCLUSIVE LICENSE AGREEMENT
THIS
EXCLUSIVE LICENSE AGREEMENT (the “Agreement”)
is
made this 6th day of February 2007, by and between Lumonall Canada Inc., a
Canadian corporation (the “Licensor”),
with
its principal place of business at _________________________________, and
Midland International Corporation (the “Licensee”)
with
its principal place of business at 00000
Xxxx Xxxxxx, Xxxx Xxxx, Xxxxxxx, Xxxxxx X0X 0X0, who hereby agree as
follows:
RECITALS:
A. Licensor
is the assignee of certain intellectual property rights (“Intellectual
Property Rights”)
for
the pigments and production of the foil used in the manufacturing of photo
luminous material (“PLM”)
(the
“Licensed
Materials”),
including the exclusive rights to use the Intellectual Property Rights in the
United States, to manufacture goods utilizing the Licensed Materials in North
America, as well as to distribute all goods derived from the Licensed Materials
in Canada to all non-governmental entities (the “Licensed
Territory”).
B. Licensee
wishes to acquire from Licensor a perpetual exclusive license to Licensor’s
Intellectual Property Rights to the Licensed Materials in the Licensed Territory
and Licensor wishes to assign the same to Licensee pursuant to the terms and
conditions contained herein.
NOW,
THEREFORE, in exchange for good and valuable consideration, the sufficiency
of
which is acknowledged, the parties agree as follows:
ARTICLE
I
Exclusive
License Grant
1.1 License
Grant.
Subject
to the terms and conditions of this Agreement, Licensor hereby grants to
Licensee, and Licensee hereby accepts an irrevocable, perpetual license to
the
Licensed Materials for use in the Licensed Territory (the “License”),
to
use the Licensed Materials in the United States to manufacture goods utilizing
the Licensed Materials in North America, as well as to distribute all goods
derived from the Licensed Materials in Canada to all non-governmental entities
in the Licensed Territory, including but not limited to sublicensing,
development, manufacturing, distribution, marketing, customizing, modifying,
and
adding to the Licensed Materials, creation of documentation for the Licensed
Materials, and any and all additional commercialization of the Licensed
Materials (the “Permitted
Purposes”).
As
used
in this Agreement, the term “Intellectual
Property Rights”
shall
mean any and all rights to use the Licensed Materials existing from time to
time
in any jurisdiction under patent law, copyright law, moral rights law, trade
secret law, trademark law, unfair competition law or other similar rights unless
mutually agreed upon.
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1.2 No
Other Rights Granted.
Apart
from the rights afforded Licensee under this Agreement (the “License
Rights”)
enumerated in this Agreement, the License does not include a grant to Licensee
of any right to engage in any other activity, nor grant any ownership right,
title or interest, or any security interest or other interest in any
Intellectual Property Rights relating to the Licensed Materials.
1.3 Licensed
Materials as Confidential Information.
The
Licensed Materials shall be deemed Confidential Information and use in
disclosure is subject to the provisions of Article IX.
1.4 Authorized
Licensee Delegates.
Licensee may delegate the exercise of License Rights under this Agreement to
one
or more persons (the “Authorized
Licensee Delegates”)
in the
Licensed Territory without prior written notice to Licensor.
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1.4.1
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The
Licensed Rights exercisable by any Authorized Licensee Delegate shall
be
solely for the benefit of Licensee and shall be in strict accordance
with
the applicable provisions of this
Agreement.
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1.4.2
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Prior
to any exercise of License Rights, each Authorized Licensee Delegate
that
is not a wholly owned subsidiary of Licensee or of which Licensee
is not a
wholly owned subsidiary shall agree in writing and be bound by this
Agreement to the same extent that the Authorized Licensee Delegate
would
be bound if it were an employee of
Licensee.
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1.4.3
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Licensee
shall be responsible to Licensor for performance of all the obligations
under this Agreement assumed by any Authorized Licensee
Delegate.
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1.5 Modifications
of and Additions to Licensed Materials.
The
parties acknowledge that Licensee may amend, modify, supplement, and add to
the
Licensed Materials (such new materials are referred to as the “Licensee
Additions”).
All
Licensee Additions shall be and remain the sole property of the Licensee.
Licensee grants to Licensor a non-exclusive license (the “Additional
License”)
to use
the Licensee Additions, provided, however, that Licensor may not use the
Licensee Additions for any of the Permitted Purposes granted to Licensee herein,
or otherwise compete with Licensee.
ARTICLE
II
Term
and Termination of License
2.1 Term
of License.
The
License shall be in effect for a perpetual license term, unless sooner
terminated in accordance with this Article II.
2.2 Mutual
Termination of License.
The
parties may terminate the License or any License Rights by mutual consent upon
such terms as they may agree in writing.
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2.3 Termination
for Breach.
This
Agreement may be terminated upon the material breach of its terms and
representations. For purposes of this Agreement, the term “material breach”
shall mean any violation by a party of a covenant or warranty or a
misrepresentation made under this Agreement which is shown to affect adversely
(a) the rights and benefits of the other party under this Agreement; or (b)
the
ability of the other party to perform its obligations under this Agreement
to
such a degree that a reasonable person in the management of his or her own
affairs would be more likely than not to decline to enter into this Agreement
in
view of the breach. In the event of any such breach:
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2.3.1
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The
party not in breach (the “Non-Breaching
Party”)
shall give the party in breach (the “Breaching
Party”)
notice describing the breach.
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2.3.2
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The
Breaching Party shall have thirty (30) days from such notice to cure
such
breach or, if such breach cannot reasonably be cured within such
30-day
period, to commence actions reasonably adequate to alleviate any
damage to
the Non-Breaching Party resulting from the breach and to prevent
a similar
future breach.
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2.4 Other
Terminations.
The
License shall terminate automatically to the extent permitted by applicable
law
in pertinent jurisdictions in any of the following events:
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2.4.1
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If
Licensee becomes insolvent or admits a general inability to pay its
debts
as they become due, then the License shall immediately terminate
without
notice.
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2.4.2
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If
Licensor becomes insolvent or admits a general inability to pay its
debts
as they become due, then the Licensed Materials shall immediately
become
the property of Licensee with full rights to perfect any and all
rights to
the Licensed Materials under the laws of the United States and any
other
jurisdiction in the Licensed
Territory.
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2.4.3
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Either
party may terminate the License immediately upon the discovery of
any
material false statement or misrepresentation contained in this
Agreement.
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ARTICLE
III
Consideration
for License
3.1 Consideration
for License Fee.
In
consideration for the granting of the exclusive License herein, Licensee hereby
grants to Licensor the following:
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3.1.1
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A
sign royalty of $2.00 (CN) per sign manufactured and sold by Licensee
utilizing the Licensed Materials, not to exceed an aggregate of $1,000,000
(CN); and
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3.1.2
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A
non-sign royalty equal to 1% of all net sales of all non-sign photo
luminous products manufactured and sold by Licensee utilizing the
Licensed
Materials. For purposes herein, the term “net sales” id hereby defined as
gross revenues, minus returns and early paid discounts, but shall
not
include cost of sales or Licensee’s operating expenses or general and
administrative expense; and
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3.1.3
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An
additional royalty not to exceed $500,000 (CN) from future profits
derived
by Licensee, payable as 15% of earnings before interest, taxes,
depreciation and amortization (“EBITDA”) and payable quarterly in arrears.
As part of Licensee’s obligation herein, Licensee agrees to issue to
Licensor a $100,000 (CN) promissory note in the form attached hereto
as
Exhibit “A”, which note shall be unsecured, non-interest bearing and
repayable in four installment payments of $25,000 per payment, due
on or
before May 31, 2007, August 31, 2007, November 30, 2007 and February
28,
2008.
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ARTICLE
IV
Representations
4.1 Representations
of Licensor.
Licensor
hereby represents and warrants to Licensee as follows:
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4.1.1
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Licensor
has full corporate power and authority to: (i) execute, deliver and
perform this Agreement, and (ii) carry out Licensor's obligations
hereunder and to consummate the transactions contemplated hereby.
The
execution and delivery of this Agreement and the consummation by
Licensor
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Licensor
(including the approval by its Board of Directors), and no other
corporate
proceedings on the part of Licensor are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This
Agreement has been duly and validly executed and delivered by Licensor
and
constitutes the legal and binding obligation of Licensor, enforceable
against Licensor in accordance with its terms, except as may be limited
by
bankruptcy, insolvency, reorganization or other similar laws affecting
the
enforcement of creditors' rights generally and by general principles
of
equity and public policy.
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4.1.2
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To
the best of Licensor's information, knowledge and belief, the execution
and delivery of this Agreement will
not:
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(a) violate
any of the terms and provisions of the Articles of Incorporation or bylaws
of
the Licensor, or any order, decree, statute, bylaw, regulation, covenant, or
restriction applicable to the Licensor or the Licensed Materials;
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(b) result
in
any fees, duties, taxes, assessments or other amounts relating to any of the
Licensed Materials becoming due or payable.
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4.1.3
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The
Licensor owns and possesses and has a good and marketable title to
the
Licensed Materials, free and clear of all mortgages, liens, charges,
pledges, security interests, encumbrances or other claims whatsoever,
whether secured or unsecured and whether arising by reason of statute
or
otherwise howsoever.
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4.1.4
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There
is no litigation or administrative or governmental proceeding or
inquiry
pending, or to the knowledge of the Licensor, threatened against
or
relating to the Licensor, the Licensor's Business, or any of the
Licensed
Materials, nor does the Licensor know of or have reasonable grounds
for
believing that there is any basis for any such action, proceeding
or
inquiry.
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4.1.5
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None
of the representations, warranties or covenants of the Licensor herein
contain any untrue statement of a material fact or omit to state
a
material fact necessary to make the statements contained therein
not
misleading and all of the representations and warranties of the Licensor
shall be true as at and as if made at the time of
closing.
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4.2 Representations
of Licensee.
Licensee
hereby represents and warrants to Licensee as follows:
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4.2.1
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Licensee
is a corporation duly incorporated, validly existing and in good
standing
under the laws of the State of Nevada and has the requisite corporate
power and authority to own, lease and operate its assets and properties
and to carry on its business as it is now being or currently planned
by
Licensee to be conducted. Licensee is in possession of all approvals
necessary to own, lease and operate the properties it purports to
own,
operate or lease and to carry on its business as it is now being
or
currently planned by Licensee to be conducted, except where the failure
to
have such approvals could not, individually or in the aggregate,
reasonably be expected to have a material adverse effect on Licensee.
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4.2.2
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Licensee
has full corporate power and authority to: (i) execute, deliver and
perform this Agreement, and (ii) carry out Licensee's obligations
hereunder and to consummate the transactions contemplated hereby.
The
execution and delivery of this Agreement and the consummation by
Licensee
of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Licensee
(including the approval by its Board of Directors), and no other
corporate
proceedings on the part of Licensee are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby.
This
Agreement has been duly and validly executed and delivered by Licensee
and
constitutes the legal and binding obligation of Licensee, enforceable
against Licensee in accordance with its terms, except as may be limited
by
bankruptcy, insolvency, reorganization or other similar laws affecting
the
enforcement of creditors' rights generally and by general principles
of
equity and public policy.
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ARTICLE
V
Sublicensing
and Service Agreements by Licensee
5.1 License
and Service Agreements.
Licensee shall enter into only such forms of license and service agreements
which adequately protect the Intellectual Property Rights connected with the
Licensed Materials and which provide the same equivalent protection for such
rights as is provided for Licensee’s similar Intellectual Property Rights in its
own proprietary information.
5.2 Terms
of Sublicense and Service Agreements.
Any
form of sublicense or service agreement used by Licensee for transactions that
involve the Licensed Materials:
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5.2.1
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With
United States government departments or agencies shall include a
restricted-rights clause conforming to the Federal Acquisition Regulations
then in effect that protects the intellectual rights and ownership
of the
Licensed Materials.
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5.2.2
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Shall
include an exclusion of incidental, consequential, special, punitive,
or
exemplary damage remedies against Licensee and
Licensor.
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5.2.3
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Shall
contain appropriate confidentiality agreements in a similar form
as
Licensee uses to protect its own proprietary
information.
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ARTICLE
VI
Warranties
of Licensor
Licensor
warrants and represents to Licensee that:
6.1 Infringement.
To the
best of its knowledge, Licensor’s grant of the License and the use of the
Licensed Materials by Licensee pursuant to this Agreement will not infringe
any
valid and subsisting Intellectual Property Right of any person other than
Licensee or an affiliate of Licensee. No other person is using or has access
to
the Licensed Materials for the Permitted Purposes.
6.2 Accuracy
of Information.
To the
best of Licensor’s knowledge, all information contained in the Licensed
Materials is accurate and not misleading. Licensor further warrants that, upon
learning of any inaccuracy in or in completeness of any Licensed Material,
Licensor promptly will notify Licensee of such matter and take all actions
necessary to make the Licensed Materials complete and accurate or pay the
actual, reasonable costs incurred by Licensee in correcting any such Licensed
Materials.
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6.3 Disclaimer
of All Other Warranties and Representations.
The
express warranties and representation set forth in this Article VI are in lieu
of, and LICENSOR DISCLAIMS, ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR
REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE
IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY,
OR
FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT LICENSOR KNOWS, HAS
REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH
PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN
THE
TRADE, OR BY COURSE OF DEALING. IN ADDITION, LICENSOR EXPRESSLY DISCLAIMS ANY
WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE WITH RESPECT TO
THE
LICENSED SOFTWARE OF ANY PART THEREOF.
ARTICLE
VII
Licensor’s
Infringement-Defense Obligation
7.1 Covenant
to Defend.
As a
covenant separate from its non-infringement representation, Licensor, at its
own
expense, shall defend claims against Licensee by third parties that any use
of
the Licensed Materials, consistent with this Agreement, constitutes an
infringement of an Intellectual Property Right under any applicable law.
7.2 Conditions
for Licensor Defense.
To be
entitled to a defense by Licensor against any such third-party infringement
claim:
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7.2.1
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Licensee
shall advise Licensor of the existence of the claim by the most
expeditious reasonable means immediately upon learning of the assertion
of
the claim against Licensee (whether or not litigation or any other
proceeding has been filed or served);
and
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7.2.2
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Licensee
shall permit Licensor to have the sole right to control the defense
and/or
settlement of all such claims, so long as no such settlement adversely
affects Licensee’s ability to exercise the License
Rights.
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7.3 Actions
Upon Injunctive Relief.
In the
event a preliminary injunction or other injunctive relief is entered that
materially enjoins Licensee from exercising the License, Licensee may suspend
payment of all monies owing to Licensor until such time, if any, as the
preliminary injunction is vacated or stayed. For so long as such injunction
is
in effect, the consideration described in Section 3.1 above shall be abated.
7.4 Actions
Upon Successful Assertion of Infringement Claim.
If a
third-party infringement claim is sustained in a final judgment from which
no
further appeal is taken or possible, and Licensor is not able to procure, at
its
sole cost, for Licensee the right to continue to use the Licensed Materials
pursuant to this Agreement, this Agreement shall terminate.
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ARTICLE
VIII
Indemnity
and Defense Obligations
8.1 Mutual
Indemnity.
Each
party (the “Defending
Party”)
shall
defend, hold harmless the other party (the “Protected
Party”)
against any and all claims, losses, liabilities, costs and damages
(collectively, the “Claims”)
arising from or relating to any material inaccuracy in any representation,
and
any material breach of any warranty or covenant under this
Agreement.
8.2 Defense
Procedure.
Each
Protected Party seeking to be defended against a claim under this Agreement
shall notify the Defending Party within sixty (60) days of the assertion of
any
Claim(s) or discovery of any fact upon which the Protected Party intends to
base
a claim for defense and /or indemnification under this Agreement. The Protected
Party’s failure to so notify a Defending Party shall relieve the Defending Party
from any liability under this Agreement to the Protected Party with respect
to
defense or indemnity with respect to such Claim(s).
8.3 Participation
in and Control of Defense.
If a
Defending Party defends a Protected Party in a lawsuit, arbitration,
negotiation, or other proceeding (“dispute”) concerning a Claim pursuant to this
Agreement, the Protected Party shall have the right to engage separate counsel,
at the Protected Party’s expense, to monitor and advise the Protected Party
about the status and progress of the defense.
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8.3.1
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With
respect to any issue involved in such dispute as to which the Defending
Party has acknowledged the obligation to indemnify the Protected
Party,
the Defending Party shall have the sole right to control the defense
of
(and/or settle or otherwise dispose of) the dispute on such terms
as the
Defending Party in its judgment deems
appropriate
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8.3.2
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To
be entitled to sole control of the defense, upon request by the Protected
Party, the Defending Party shall demonstrate to the reasonable
satisfaction of the Protected Party the Defending Party’s financial
ability to carry out its defense obligations (and its indemnity
obligations if any).
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8.4 Offset
of Indemnity Amounts.
In any
event requiring indemnity of one party by another hereunder, the indemnitee
may
offset, against any payments subsequently due to the indemnitor from the
indemnitee, any amount remaining unpaid under this indemnitee unless otherwise
provided in this Agreement.
8.5 No
Defense or Indemnity for Own Negligence or Misconduct.
Except
as may be expressly provided otherwise in this Agreement, no party shall be
required to defend or indemnify any other party with respect to Claims finally
adjudged to have been caused by the putative indemnitor’s own negligence, gross
negligence, or willful misconduct (i.e., misconduct in bad faith). Reasonable
expenses incurred by a Protected Party who is or is threatened to be made a
named defendant or respondent in a dispute may be paid or reimbursed by the
Defending Party, in advance of the final disposition of the proceeding, after
the Defending Party receives a written undertaking by or on behalf of the
Protected Party to repay the amount paid or reimbursed, if and to the extent
it
is ultimately determined that the Protected Party was negligent or grossly
negligent or had engaged in willful misconduct.
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ARTICLE
IX
Confidential
Information
9.1 Definition.
As used
herein, the term “Confidential
Information”
means
the Licensed Materials and any other information that is proprietary to a party
or has been acquired or is being used by such party pursuant to a
confidentiality agreement with a third party and which is not generally known
in
the relevant industry or industry segment and affords possessors of the
information a commercial or business advantage over others who do not have
such
information.
9.2 Illustrative
Types of Confidential Information.
The
term “Confidential
Information”
may
include, but is not limited to, customer information, accounting data,
statistical data, research projects, development and marketing plans, customer
lists, and insurance payor data.
9.3 Exclusions
from Confidential Information Status.
The
term “Confidential
Information”
does
not include any information that, through no fault of the receiving party,
is or
becomes:
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9.3.1
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Substantially
described in an English language printed
publication;
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9.3.2
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Developed
by or on behalf of the receiving party;
or
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9.3.3
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Disclosed
to the receiving party by a third party not having an obligation
of
confidence to the owner of such
Information.
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9.4 Security
Conditions.
Confidential Information shall be maintained under secure conditions by a
receiving party using at least the same security procedures used by such
receiving party for the protection of its own Confidential Information.
9.5 Non-Use
Obligation.
The
receiving party shall not use any Confidential Information, except for the
benefit of such Information, without the express prior written consent of an
authorized officer of the owner of such Information during the term of this
Agreement and for three years thereafter and shall not disclose any such
information without such consent except as permitted by this Agreement or
except:
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9.5.1
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To
those of the receiving party’s employees and the performance of such
receiving party’s obligations under this
Agreement;
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9.5.2
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To
third parties who execute confidentiality agreement acknowledging
the
obligations of confidentiality under this
Agreement;
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9.5.3
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To
those Authorized Licensee Delegates who have executed an appropriate
form
of binding non-disclosure agreement or are otherwise obligated to
preserve
the receiving party’s confidences;
or
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9.5.4
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Upon
the order of a court or other tribunal of competent jurisdiction
to
disclose such Confidential Information, upon notice to the owner
of such
Information.
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9.6 Third-Party
Misappropriation.
A
receiving party of Confidential Information shall immediately report to the
owner of such Information any attempt by any person of which the receiving
party
has knowledge to use or disclose Confidential Information without authorization
from its owner.
9.7 Post-Termination
Procedures.
Upon
any termination of the receiving party’s right to possess and/or use
Confidential Information, the receiving party shall turn over to the owner
of
the Confidential Information (or, if agreed by such owner, destroy) any disks,
tapes, documentation, notes, memorandum, documents, or any other tangible
embodiments of any such Information.
ARTICLE
X
Arbitration
10.1 All
disputes arising out of or relating to the subject matter of this Agreement
shall be arbitrated in accordance with the Commercial Arbitration Rules of
the
American Arbitration Association by a single arbitrator chosen by each party
and
a single arbitrator agreed to by both parties. If no such agreement of the
jointly chosen arbitrator is obtained, then an arbitrator will be appointed
by
the American Arbitration Association. Each party to such arbitration shall
have
the disclosure responsibilities mandated by Rule 26(a) of the Federal Rules
of
Civil Procedure. Discovery shall be governed by Rules 26 through 36 of the
Federal Rules of Civil Procedure, except as to any limitations on scope or
amount agreed to by the parties or imposed in his sole discretion by the
arbitrator. Actions for injunctive relief or any violation of the
confidentiality prohibitions of Article IX may be sought in a court of competent
jurisdiction without initial reference to arbitration pursuant to this Article.
The arbitrator shall have the power to include punitive damages or incidental
or
consequential damages in the arbitration award and the arbitrator shall have
the
power to award attorneys’ fees to the prevailing party. Judgment on the
arbitration award in accordance with this Agreement may be entered in any state
or federal court of competent jurisdiction.
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ARTICLE
XI
General
Provisions
11.1 Entire
Agreement.
Except
as may be expressly provided otherwise herein, this Agreement constitutes the
entire agreement between the parties concerning the subject matter thereof.
No
prior or contemporaneous representations, inducements, promises, or agreements,
oral or otherwise, between the parties with reference thereto shall be of any
force or effect. No modification or amendment to this Agreement shall be valid
or binding unless reduced to writing and duly executed by the party or parties
to be bound thereby.
11.2 Authority
and Other General Warranties.
Each
party warrants to the other that:
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11.2.1
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The
execution and/or performance of this Agreement does not and will
not
violate or interfere with any other agreement of it, which violation
or
interference would have a material adverse effect on
it;
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11.2.2
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It
will not enter into any agreement the execution and/or performance
of
which would violate or interfere with this Agreement and have a material
adverse effect on the other party;
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11.2.3
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It
is not presently the subject of, nor the proponent of, any claim
that
would have a material adverse effect on the other
party.
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11.3 Survival
of Representations and Warranties.
The
representations and warranties made herein shall survive the execution of this
Agreement and the termination of the License except as may be expressly
indicated otherwise.
11.4 Independent
Parties.
The
parties are independent contractors. Except as may be expressly and
unambiguously provided in this Agreement, no partnership or joint venture is
intended to be created by this Agreement, nor any principal-agent or
employer-employee relationship.
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11.4.1
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Except
to the extent expressly provided in this Agreement neither party
has, and
neither party shall, attempt to assert, the authority to make commitments
for or to bind the other party to any
obligation.
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11.4.2
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Although
this Agreement contains covenants with respect to Confidential
Information, the parties disclaim any other intent to create a
confidential or fiduciary relationship between
them.
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11.5 Injunctive
Relief.
Each
party acknowledges that any violation by that party of its covenants in this
Agreement relating to Intellectual Property Rights would result in damage to
the
other party that is largely intangible but nonetheless real, and that is
incapable of complete remedy by an award of damages. Accordingly, any such
violation shall give the other party the right to a court-ordered injunction
or
other appropriate order to specifically enforce those covenants.
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11.6 Survival
of Restrictive Covenants.
The
covenants herein concerning Intellectual Property Rights shall be construed
as
independent of any other provision hereof. The existence of any claim or cause
of action by a party, whether predicated on this Agreement or otherwise, shall
not constitute a defense to enforcement by the other party of such
covenants.
11.7 Effect
of Partial Invalidity.
If any
one or more of the provisions of this Agreement should be ruled wholly or partly
invalid or unenforceable by a court or other government body of competent
jurisdiction, then:
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11.7.1
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The
validity and enforceability of all provisions of this Agreement not
ruled
to be invalid or unenforceable shall be
unaffected;
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11.7.2
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The
provision(s) held wholly or partly invalid or unenforceable shall
be
deemed amended, and the court or other government body is authorized
to
reform the provision(s), to the minimum extent necessary to render
them
valid and enforceable in conformity with the parties’ intent as manifested
herein; and
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11.7.3
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If
the ruling, and/or the controlling principle of law or equity leading
to
the ruling, is subsequently overruled, modified, or amended by
legislative, judicial, or administrative action, then the provision(s)
in
question as originally set forth in this Agreement shall be deemed
valid
and enforceable to the maximum extent permitted by the new controlling
principle of law or equity.
|
11.8 Assignment.
No
party may assign any right under this Agreement, and any purported assignment
shall be null and void and a breach of this Agreement, except for the following
or as otherwise provided herein:
|
11.8.1
|
Either
party may assign this Agreement with the express prior written consent
of
the other party.
|
|
11.8.2
|
Any
party may assign all of its rights indivisibly to an entity in which
a
party owns more than 50% of the voting interests or which owns more
than
50% of the voting interests of a party, and which agrees in writing
to
comply with the party’s obligations under, and to be bound by, this
Agreement.
|
|
11.8.3
|
Either
party may assign all of its rights indivisibly (but not divisibly)
in
connection with a sale or other disposition of substantially all
the
assets of that party’s business relating to the Licensed Materials to a
single acquiring entity. The acquiring entity must agree in writing
to
comply with the assigning party’s obligations under, and to be bound by,
this Agreement.
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11.9 Notices.
Any
notices provided or required under the terms of this Agreement shall be
effective immediately when provided by verified facsimile transmission or
personal delivery one business day after being deposited with a nationally
recognized overnight courier, or five days after being sent by first class
mail,
and addressed as follows:
If
to
LICENSOR:
Lumonall
Canada Inc.
_________________________
_________________________
With
a
copy to:
If
to
LICENSEE:
00000
Xxxx Xxxxxx
Xxxx
Xxxx, Xxxxxxx, Xxxxxx X0X 0X0
With
a
copy to:
Xxxxxx
X.
Xxxxxx, Esq.
Xxxxxx
X.
Xxxxxx, P.C.
00000
X.
Xxxxxxxx Xxxx
Tower
1
Penthouse #803
Xxxxxxxxx,
XX 00000
11.10 Remedies.
Except
as otherwise provided herein or in this Agreement, the remedies set forth herein
or in this Agreement are not exclusive, and either party shall be entitled
alternatively or cumulatively to damages for breach of this Agreement or to
any
other remedy available under applicable law.
11.11 Choice
of Law.
This
Agreement shall be interpreted and enforced in accordance with the law of the
Province of Ontario, Canada applicable to agreements made and performed entirely
in the Province of Ontario, Canada by persons domiciled therein.
11.12 Attorney’s
Fees.
If
litigation or other action is commenced between the parties concerning any
dispute arising out of or relating to this Agreement, the prevailing party
shall
be entitled, in addition to any other award that may be made, to recover all
court costs or other official costs and all reasonable expenses associated
with
the action, including without limitation reasonable attorney’s fees and
expenses.
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11.13 No
Waiver.
The
failure of either party at any time to require performance by the other party
of
any provision of this Agreement shall in no way affect the right of such party
to require performance of that provision. Any waiver by either party of any
breach of any provision of this Agreement shall not be construed as a waiver
of
any continuing or succeeding breach of such provision, a waiver of the provision
itself or a waiver of any right under this Agreement.
11.14 Binding
on Successors.
This
Agreement shall be binding upon and inure to the benefit of the Parties and
their successors and assigns permitted by this Agreement.
11.15 Article
Headings.
The
article headings contained in this Agreement are for reference purposes only
and
shall not in any way control the meaning or interpretation of this
Agreement.
11.16 Representation
of Counsel; Mutual Negotiation.
Each
party has been and had the opportunity to be represented by counsel of its
choice in negotiating this Agreement. This Agreement shall therefore be deemed
to have been negotiated and prepared at the joint request, direction, and
construction of the parties, at arms length, with the advice and participation
of counsel, and shall be interpreted in accordance with its terms without favor
to any party.
11.17 Counterparts;
Facsimile Execution.
This
Agreement may be executed in separate counterparts, each of which so executed
and delivered shall constitute an original, but all such counterparts shall
together constitute one and the same instrument. Each person signing below
represent that (s)he has read this Agreement in its entirety, understands its
terms, and on behalf of the party indicated below by his or her name agrees
that
such party shall be bound by those terms. For purposes of this Agreement, a
document (or signature page thereto) signed and transmitted by facsimile machine
or telecopier is to be treated as an original document. The signature of any
party thereon, for purposes hereof, is to be considered as an original
signature, and the document transmitted is to be considered to have the same
binding effect as an original signature on an original document. At the request
of any party, a facsimile or telecopy document is to be re-executed in original
form by the parties who executed the facsimile or telecopy document. No party
may raise the use of a facsimile machine or telecopier machine as a defense
to
the enforcement of the Agreement or any amendment or other document executed
in
compliance with this Section.
(balance
of page intentionally left blank - signature page
follows)
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IN
WITNESS WHEREOF the parties hereto have executed this Agreement effective as
of
the date first written above.
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LICENSOR:
LUMONALL CANADA INC.
By:
Title:
Date:
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LICENSEE:
MIDLAND INTERNATIONAL CORPORATION
By:
Title:
Date:
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