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LICENSE AGREEMENT
This Agreement is entered into by and between Xxxxxx Xxxxxxxxx
("Licensor") and Xxxxxx International Holdings, Inc. and its subsidiaries
("Licensee") this 23rd day of February 2005, with reference to the following
facts:
A. Licensor is the owner of the Design 22 ft Vortex boat United States
Patent number ("Patent"), Exhibit A, attached hereto, and incorporated herein by
this reference, for a special boat design.
B. Licensee wishes to license such design on an exclusive basis for the
manufacture and sale of the boats ("MODENA SPORT VORTEX) world wide, and on a
non-exclusive basis for other watercrafts or boats.
C. Licensor wishes to license to Licensee the right to use the Design for
the use set forth in paragraph B, immediately above.
NOW THEREFORE, the parties hereto agree as follows:
1. Grant of License. Licensor grants to Licensee an exclusive right to use and
enjoy the benefits of the Design in manufacturing Modena Sport Vortex
Boats, and a non-exclusive right for other boats which will be specified in
exhibit A.
2. Term and Payment, Minimum Amounts.
2.1. Term and Payment, Licensee agrees to pay as a royalty for the use
and enjoyment of the Design, an amount equal to 2% of the GROSS sale, less sales
returns, for a period of Five (5) calendar years commencing on the date first
above mentioned. Royalties shall be determined on a quarterly basis, for the
periods ending each July 31, October 31, January 31 and April 30 of every year
and shall be paid on the fifteenth of the month following the end of the
determination period, except that upon the expiration of this Agreement the
determination period shall end and Licensee shall determine the royalty amount
and pay such amount fifteen (15) days after the expiration date of this
Agreement.
2.2 Minimum Amounts.
2.2.1 Minimum Amount. Notwithstanding paragraph 2.1, above,
Licensor shall pay a minimum of two hundred dollars ($200.00) a calendar
quarter, pro-rated for any period less than a calendar quarter, and in the same
manner as provided for in paragraph 2.1, above. This minimum payment is not in
addition to that provided for in paragraph 2.1, but a minimum payment that is
provided for in the event that a payment under paragraph 2.1 would be less than
the minimum set forth in this paragraph 2.2.2. Minimum amount will be
renegotiated after January 31, 2006 but no later than February 10, 2006,
otherwise the license agreement will be automatically terminated.
3. Certain Restrictions. The license granted herein is subject to and limited
by the following restrictions:
3.1 Restrictive Terms. Licensee may use and enjoy the Design only under the
terms of this Agreement, however, Licensor may not offer or impose any terms on
the use of the Design that alter or restrict the terms of this License or the
Licensee's exercise of the rights granted, hereunder;
3.2 Sub-License. Licensee may not sub-license the Design.
4. Representation and Warranties. Licensor represents and warrants as follows:
4.1 Rights. Licensor has secured all rights in the Design necessary to
grant the license rights here to Licensee and permit the lawful exercise of the
rights granted hereunder, to Licensee;
4.2 Infringements. The use of the Licensor's Design do not infringe the
copyright, trademark, publicity rights, common law rights or any other right of
any third party or constitute defamation, invasion of privacy or other tortuous
injury to any third party.
4.3 Sole Property. The Design is the sole property of the Licensor and no
lien, mortgage, security interest or other encumbrance against the Design
exists.
4.4 Assignment. No share, interest, assignment, or other right to the
Patent has been transferred, assigned or granted to any other party.
4.5 Good Title. Licensor will at all times have good title to the Design
and will at all times keep the Design free and clear of all liens, encumbrances
security interests and rights and claims of others except for the rights and
claims arising under this Agreement.
4.6 Without Warranties. Except as expressly stated in this license or
otherwise agreed in writing, or required by applicable law, the Design is
licensed on an "as is" basis, without warranties of any kind, either express or
implied including, without limitation, any warranties regarding the use of the
Design to produce profit.
5. Events of Default. Any one of the following occurrences shall constitute an
event of default under this Agreement:
5.1.1 Failure to make Payment. The failure of Licensee to make any royalty
payment by its due date thereof;
5.1.2 Bankruptcy. The filing of a voluntary or involuntary petition under
any provision of a state or federal bankruptcy law by either party hereto.
5.1.3 Other Default. The occurrence of any other default under this
Agreement.
If an event of default occurs under paragraph 5.1.1, above, Licensor
may, in its sole discretion (i) declare all accrued but unpaid royalties
immediately due and payable, without notice, unless otherwise required by
applicable statute; (ii) declare this agreement canceled and of no further force
and effect and Licensor shall have and may exercise any and all rights and
remedies available at law or in equity. In the event of any other default under
this Agreement the non-defaulting party shall deliver written notice of such
default to the defaulting party and the defaulting party shall have fifteen (15)
days after receipt of such written notice of default to cure the same. After
such fifteen (15) day period, provided the defaulting party has not cured the
default(s), the non-defaulting party shall have and may exercise any and all
rights and remedies available at law or in equity.
6. Option to Renew. Licensor hereby grants Licensee an option to renew this
Agreement to be effective at the expiration of the term, or any subsequent term
of this Agreement, for an additional Five (5) year period. In order to exercise
this option (i) Licensee must provide Licensor with written notice of its
election to exercise the renewal option hereunder ninety (90) days prior to the
expiration of the term of this Agreement and (ii) Licensee must not be in
default under this Agreement.
7. Attorneys' Fees and Costs. If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorney's fees, costs and necessary disbursements in
addition to any other relief to which that party may be entitled.
8. Entire Agreement. This Agreement supercedes any and all other agreements oral
or in writing, between the parties hereto with respect to the matters set forth
herein, and contains all of the covenants and agreements between the parties
with respect to the Design. This Agreement applies only to the Design as set
forth herein and to no other Patents or design rights. Each party to this
agreement acknowledges that no representation, inducements, promises or
agreements, orally or otherwise, have been made by any party, or anyone acting
on behalf of any party, which are not embodied herein, and that no other
agreement, statement or promise not contained in this agreement shall be valid
or binding on either party. Any modification of this Agreement shall be
effective only if it is in writing and signed by the parties hereto.
9. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and assigns.
10. Headings. The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the
provisions hereof
11. Amendment, Waiver. No provision of this Agreement may be waived or amended
except in a written instrument signed, in the case of an amendment, by the
Licensor and the Licensee or, in the case of a waiver, by the party against whom
enforcement of any such waiver is sought. No waiver of any default with respect
to any provision, condition or requirement of this Agreement shall be deemed to
be a continuing waiver in the future or a waiver of any other provision,
condition or requirement hereof, nor shall any delay or omission of either party
to exercise any right hereunder in any manner impair the exercise of any such
right accruing to it thereafter.
12. Notices. Any notice, demand, request, consent or other communication which
either party desires or is required to give to any other party shall be in
writing and shall be deemed to have been given when either: (a) delivered in
person or by facsimile transfer, or (b) sent by overnight courier or first-class
registered or certified mail, postage pre-paid, return receipt requested,
addressed to such party at the address set forth above. Either party may
designate another address for itself at any time upon written notice to the
other party
13. Interpretation. Each party hereto has been represented by counsel of its
choice, and this Agreement is not to be interpreted as if it was prepared by
either party.
14. Authority. Each party signing on behalf of a party to this Agreement
represents and warrants that he has all authority to bind that party to this
Agreement.
15. Provision Unenforceable. If any provision of this License is invalid or
unenforceable under applicable law, it shall not affect the validity or
enforceability of the remainder of the terms of this License, and without
further action by the parties to this agreement, such provision shall be
reformed to the minimum extent necessary to make such provision valid and
enforceable.
16. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the law of the State of California.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
on the date first set forth above.
"Licensor" "Licensee"
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Xxxxxx Xxxxxxxxx Xxxxxxx Xxx Xxxxxx
