EXHIBIT 3-8
APPENDIX A
LICENSE AGREEMENT
BETWEEN
MASS MEGAWATTS
AND
XXXXXXXX XXXXXX
OF
SHREWSBURY , MASSACHUSETTS
AS NOTED
IN THE LICENSE GRANT
BETWEEN WINDSTORM INTERNATIONAL AND XXXXXXXX XXXXXX
This is an agreement effective June 21,2000 between Xxxxxxxx X. Xxxxxx, an
individual residing at 00 Xxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter "Licensor") and Mass Megawatts, Inc., a Massachusetts Corporation,
(hereinafter "Licensee").
1. BACKGROUND
The Licensor is the owner and inventor of certain inventions and products
relating to wind energy including technology covered by eight applications for
United States Letters Patent. Licensee upon signing the agreement will obtain an
exclusive territorial license for the manufacture, use, and sale of the
Licensor's products. The parties agree as follows:
(1) Definitions
(a) "Patent Rights" means Licensor's patents owned and/or acquired and
patent applications, including all related: (i) applications for patents filed
in the future; (ii) continuations; (iii) continuations-in part; (iv) divisions;
(v) reissue patents; (vi) all patents issuing therefrom; and (vii) present and
future applications, patents and utility model registrations in foreign
countries.
(b) "Licensed products" means any product to which the licensor has patent
rights.
(c) The first "annual period" of this Agreement shall be deemed to end on
March 30, 2000.
(d) "Net Sales" means Licensee's invoiced selling price of the Licensed
Products to a customer, less trade discounts, credits for returned merchandise,
sales and excise taxes, transportation, and customs and duties actually paid by
the Licensee. A sale to the customer means a bona fide sale resulting from an
arms length transaction to an unaffiliated entity beyond the control of the
Licensee. No sale or transfer of Licensed Products shall be made to any entity
that is not a customer without the express written consent of the Licensor.
2. GRANT
The Licensor , grants to the Licensee the exclusive right and license in the
states of Massachusetts, New York, New Jersey, Pennsylvania, California,
Illinois, Kansas, Michigan, Minnesota, Nebraska, North Dakota South Dakota,
Texas, Vermont, Washington, and Wisconsin to make and use, to produce the
licensed products under all patent rights now or hereinafter owned by the
Licensor.
3. ROYALTY PAYMENTS
(a) The Licensee shall not pay the Licensor an advance royalty.
(b) The Licensee agrees to pay to the Licensor a royalty based on two
percent (2%) of the net sales for the life of the patent of each product.
(C) The Licensor shall promptly disclose to the Licensee any future
improvements or developments of licensed products conceived or acquired by the
Licensor.
4. REPORTS AND ROYALTY PAYMENTS
(a) Within sixty (60) days after the end of each of it's fiscal quarters,
the Licensee shall report .the licensor, the net sales anywhere in the world
during such fiscal quarter together with an accounting of accrued royalties
payable thereon and art explanation of any offset credit allowances.
(b) Simultaneously with each report, the Licensee shall remit all royalty
payments due thereon.
(c) All records of the Licensee pertaining to the manufacture and use of
licensed products shall be maintained by the Licensee for a minimum period of
five (5) years after payment of royalties thereon. The Licensor shall have the
right to have a certified public accountant inspect, during regular business
hours, the books and records of the Licensee for the purpose of ascertaining the
accuracy of the royalty payments by the Licensee, provided, Licensor shall
notify the Licensee five days in advance of any such inspection and no more than
one inspection shall occur within any twelve (12) month period.
5. TERM AND TERMINATION
(a) Unless sooner terminated as provided, this Agreement shall terminate
upon the latest
expiration of any patent under which the Licensee is licensed hereunder.
(b) This Agreement may be terminated by the Licensee at the end of any
annual period hereof by thirty (30) days advance notice to the Licensor.
(c) Upon termination, the license granted herein shall cease, all rights
granted hereunder shall revert to the Licensor, and all obligations for payments
by the Licensee to the Licensor shall. cease, without prejudice to the payment
of royalties accruing prior to such termination. Licensee shall have the right,
subsequent to termination, to dispose of existing inventory, paying any
royalties due thereon in accordance with the percentages set forth herein.
6. ENFORCEMENT RIGHTS
(a) If during the term of this Agreement, any patent licensed hereunder
shall appear to be infringed by a third party, then the party hereto first
becoming aware of such infringement shall promptly notify the other. The
Licensee shall have the right, but not the obligation, to notify the infringer
and to initiate and control litigation or legal proceedings to xxxxx the
infringement, without the prior consent of the Licensor. The Licensor may elect
to join in any such legal proceedings against the alleged infringer, and if not
so electing, agrees to be joined as an involuntary party plaintiff. If the
Licensee has not initiated such legal proceedings within one (1) year after
becoming aware of the infringement, then the Licensor may initiate leg~
proceedings on his own behalf, and the Licensee may elect to join in those
proceedings.
(b) If either parry elects to join in legal proceedings commenced by the
other party, then the control of such proceedings shall remain in the hands of
the initiating party and all fees and costs incurred by the initiating party,
along with all damages and awards recovered thereby, shall be shared equally
between the parties. If one party elects not to join in legal proceedings
initiated by the other party, then such other party shall be responsible for all
fees and costs incurred therein, and shall receive all damages and awards
recovered thereby.
(c) Each party shall cooperate fully with the other in all aspects of any
such litigation whether or not joining in the proceedings.
(7) SUBLICENCE AND ASSIGNMENT
The Licensee shall have no right to grant sublicenses hereunder without the
consent of the Licensor. Neither party shall have the right to assign this
agreement without the consent of the other. The Licensee shall not have the
right to enter any arrangement involving the sharing of profits generated from
the technology granted in this licence agreement without the consent of the
Licensor.
8. WARRANTIES
(a) The Licensor makes no warranty as to the validity of Patent Rights, but
does warrant that the patent application identified above is on file in the
United States Patent and Trademark Office and has not been abandoned.
(b) The Licensor warrants he has the sole right to enter into this
Agreement, that he is the sole owner of Patient Rights, and that he has not
entered into and will not enter into any other Agreement in conflict herewith.
(9) BREACH OF AGREEMENT
In the event of a breach of agreement by either party, the other party shall
have the right to terminate this agreement by notice setting forth the details
and the date of the purported breach, lithe breach is not cured within thirty
(30) days after such notice, the party alleging the breach shall have the right
to terminate this Agreement by further notice to such other party and this
Agreement shall terminate as of the date of such further notice and shall be
null and void without further effect, provided, such termination shall not
relieve the Licensee of accrued royalty obligations.
10. PATENT MARKING
The Licensee shall xxxx all Licensed Products with the appropriate patent
references, complying in all respects with the governing laws.
11. UNAVOIDABLE EVENTS
Neither party hereto shall be considered in breach of its obligations if it
shall fail to fulfill its obligations hereunder wholly or principally because of
acts of God, war, riot, civil commotion, tempest, flood, fire, strike, or any
other circumstances beyond the control of the party which would otherwise be in
default of its obligations, provided that such obligation is fulfilled within a
reasonable period after such cause shall have been removed.
12. NOTICES
Any notice given hereunder shall be in writing and shall be effective on the
date mailed by certified mail, return-receipt required:
if to the Licensor, to: Xxxxxxxx X. Xxxxxx
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
if to the Licensee, to: Mass Megawatts, Inc.
00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
13. LAWS GOVERNING
This agreement shall be construed according to the laws of Massachusetts.
14. EXECUTION
The Licensor hereby grants the Licensee the rights authorized in this
agreement on his own behalf. The Licensor warrants that he is authorized to
enter this agreement on behalf of the Licensee as the majority shareholder of
the Licensee corporation and that this agreement is binding on that corporation.
/s/ Xxxxxxxx X. Xxxxxx 1/19/99
------------------------- -------
Xxxxxxxx X. Xxxxxx Date
Licensor
and sole shareholder of
Mass Megawatts, Inc. Licensee
