This Document
represents a
LICENSE AGREEMENT
between
FARU GmbH. Dresden, Germany
Patent Holder
and
The Quantum Group, Inc.
A Joint Venture for
the Marketing & Distribution of
"REVULCON" Rubber Vulcanization Technology
Date : February 25, 1998
TABLE OF CONTENTS
I. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1 Business Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.2 Confidential Information. . . . . . . . . . . . . . . . . . . . . . . . 4
1.3 Dollars (CAN) or "$CAN" . . . . . . . . . . . . . . . . . . . . . . . . 4
1.4 Dollars (US) or "$US" . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Effective Date. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.6 Licensed Technology . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.7 Net Revenues. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.8 Patents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.9 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.10 Plant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.11 Technical Information . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.12 Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1.13 Trademarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
II. GRANT OF RIGHTS AND LICENSES. . . . . . . . . . . . . . . . . . . . . . 5
2.1 Use of Patents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Construction of Plants. . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Use of Technical Information. . . . . . . . . . . . . . . . . . . . . . 5
2.4 Right to Use Trademarks . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Quality Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6 Right to Sublicense . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 No Rights by Implication. . . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
III. OBLIGATIONS OF FARU . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3.1 Training and Technical Assistance . . . . . . . . . . . . . . . . . . . 6
3.2 Additional Services . . . . . . . . . . . . . . . . . . . . . . . . . . 7
IV COMPENSATION PAYABLE TO FARU. . . . . . . . . . . . . . . . . . . . . . 7
4.1 Licensing Fee and Royalty . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Contents of Quantum's Reports . . . . . . . . . . . . . . . . . . . . . 8
4.3 Payments Accompany Quantum's Reports. . . . . . . . . . . . . . . . . . 8
4.4 Minimum Royalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.5 Payments of Royalties and Other Amounts . . . . . . . . . . . . . . . . 8
4.6 Quantum's Books and Records . . . . . . . . . . . . . . . . . . . . . . 9
4.7 Faru's's Right to Audit . . . . . . . . . . . . . . . . . . . . . . . . 9
4.8 Audit Information Confidential. . . . . . . . . . . . . . . . . . . . . 9
4.9 Quantum's Reports Conclusively Correct. . . . . . . . . . . . . . . . . 9
V INVENTIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.1 Disclosure Inventions . . . . . . . . . . . . . . . . . . . . . . . . . 9
5.2 Right to Use Inventions . . . . . . . . . . . . . . . . . . . . . . . . 9
5.3 Registering Patents on Inventions . . . . . . . . . . . . . . . . . . . 9
5.4 Registering Patents in the Territory. . . . . . . . . . . . . . . . . . 9
VI CONFIDENTIAL INFORMATION. . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Confidentiality Maintained. . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Information in Connection with Sale . . . . . . . . . . . . . . . . . .10
6.3 Liability for Disclosure. . . . . . . . . . . . . . . . . . . . . . . .10
VII WARRANTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
7.1 Warranties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
VIII TERMINATION
8.1 Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8.2 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
8.3 After Termination . . . . . . . . . . . . . . . . . . . . . . . . . . .11
8.4 Payment Obligations Continue. . . . . . . . . . . . . . . . . . . . . .11
8.5 No Damages for Termination. . . . . . . . . . . . . . . . . . . . . . .11
8.6 Sub-Licenses not to be Terminated . . . . . . . . . . . . . . . . . . .11
8.7 Sub-Quantums Rights if Quantum Terminated . . . . . . . . . . . . . . .11
IX REPRESENTATIONS, WARRANTIES & COVENANTS OF FARU . . . . . . . . . . . .11
9.1 Ownership of Licensed Technology. . . . . . . . . . . . . . . . . . . .11
9.2 No Conflicting Agreements . . . . . . . . . . . . . . . . . . . . . . .11
X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.1 Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.2 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.3 Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.4 Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.5 Non Circumvention . . . . . . . . . . . . . . . . . . . . . . . . . . .12
10.6 No Other Relationship . . . . . . . . . . . . . . . . . . . . . . . . .12
10.7 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
10.8 Entire Understanding. . . . . . . . . . . . . . . . . . . . . . . . . .13
10.9 Invalidity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
10.10 Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
10.11 Fees Payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
10.12 Responsibility for Taxes. . . . . . . . . . . . . . . . . . . . . . . .13
10.13 Survival of Contents. . . . . . . . . . . . . . . . . . . . . . . . . .14
10.14 Table of Contents and Headings. . . . . . . . . . . . . . . . . . . . .14
10.15 Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
10.16 Feasibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
LICENSE AGREEMENT
This License Agreement is made and entered into on this day :
____________________ by and between The Quantum Group, Inc./Eurectec, Inc.,
(Quantum) 00000 Xxxxxx Xxxx, Xxxx. X, Xxxxxx, Xxxxxxxxxx 00000, ("Quantum")
and :
FARU Forschungsstelle f''r Analytik, Radiometrie & Umweltechnologie GmbH.,
Xxxxxxxxx Xxxxxxx 000, 00000 Xxxxxxx, Xxxxxxx, ("FARU")
WHEREAS, FARU possesses certain intellectual and industrial property rights
with respect to tire rubber de-vulcanization and/or reactivation processes;
and
WHEREAS, FARU under the terms of this agreement, is willing to grant, and
QUANTUM desires to receive, the exclusive worldwide right to use such rights
for :
FARU "REVULCON" De-Vulcanization Technology
for Tire Crumb Rubber and Tire Rubber Buffings ("the Technology")
WHEREAS, FARU and Quantum desire to jointly exploit the technology;
in accordance with the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and mutual promises, terms
and conditions hereinafter set forth, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties do hereby agree as follows :
I. DEFINITIONS
As used herein, the following terms shall have the following definitions.
1.1 Business Day. "Business Day" shall mean a day on which banks are open for
business in Los Angeles, California, U.S.A.
1.2 Confidential Information. "Confidential Information" shall mean that part
of the Technical Information which is not publicly known.
1.3 Dollars (US) or "$US". "Dollars (US)" or "$US" shall mean the lawful money
of the United States of America in immediately available funds.
1.4 Effective Date. "Effective Date" shall mean the later of (a) the date on
which FARU executes this Agreement, (b) the date on which QUANTUM executes
this Agreement and pays the Licensing Fee [4.1 (a)(i)].
1.5 Licensed Technology. "Licensed Technology" shall mean the Patents ,
Trademarks and Technical Information now in existence, developed hereafter for
the tire rubber de-vulcanization and/or reactivation process.
1.6 Gross Income. "Gross Income" shall mean (a) any and all amounts received
by QUANTUM in connection with the services rendered and/or products sold from
or by Plants which operate in the Territory.
1.7 Patents. "Patents" shall mean all patents and patent applications listed
in Exhibit A to this Agreement, or which may be applied for by either of the
paties relating to the Technology.
1.8 Payment. "Payment" shall mean a cash, check, wire transfer or other
mutually acceptable and agreed upon payment method.
1.9 Plant. "Plant" shall mean an extrusion or other processing unit for rubber
de-vulcanization and/or reactivation operated pursuant to the rights granted
to Quantum hereunder.
1.10 Technical Information. "Technical Information" shall mean all currently
existing trade secrets , know-how, computer programs (including copyrights in
said programs), knowledge, technology, means, methods, processes, practices,
formulas, techniques, procedures, technical, assistance, designs, drawings,
apparatus, written and oral rectification's of data, specifications, assembly
procedures, schematics and other valuable information of whatever nature,
whether confidential or not, and whether proprietary or not, which are
necessary to allow someone reasonably skilled in the industry to construct,
use, service and test a Plant.
1.11 Territory."Territory" shall mean : The World
1.12 Trademarks. "Trademarks" shall mean any and all trademarks, trade names,
service marks and other commercial symbols either listed in Exhibit C to this
Agreement or else which FARU may from time to time designate to be included
within this definition by written notice to Quantum. Once included in this
definition, such trademarks, trade names, service marks and other commercial
symbols shall not be removed from this definition without the mutual agreement
of the parties hereto.
II. GRANT OF RIGHTS AND LICENSES
Subject to all of the terms and conditions set forth in this Agreement :
2.1 Use of Patents. FARU hereby grants to QUANTUM an exclusive right and
license during the term of this Agreement to practice the Technology in order
to use and operate or sell equipment utilizing the licensed Technology in the
Territory. FARU shall not sell the licensed Technology or sell equipment
utilizing the licensed Technology inside the Territory.
2.2 Construction of Plant (s)
Pursuant to completed sub-license agreements and/or otherwise completed
contracts for the construction and operation of plants by Quantum, Quantum
will test successfully and disassemble and package safely for shipment,
complete equipment and machinery as described in the said agreements or
contracts. (EXHIBIT B) All other costs of shipping, duties, taxes and licences
shall be borne by the sub-licensee or by QUANTUM according to the agreement
between QUANTUM and the sub-licensee.
FARU will supply QUANTUM within 14 days of signing this agreement a list
of existing companies in Europe with whom FARU has had previous contact. In
order to facilitate a smooth transition QUANTUM appoints FARU to continue to
service those customers with technical information. Any sales that result
through those efforts shall be concluded through QUANTUM.
2.3 Use of Technical Information.
(a) FARU grants to QUANTUM an exclusive right and license during the term
of this Agreement to use the Technical Information in the Territory.
(b) As soon as practicable after the Effective Date, but in no event
later than (30) days after the Effective Date, FARU shall provide to Quantum,
at no additional costs to Quantum, all of the Technical Information and other
documentation and materials necessary for Quantum to market and distribute the
technology.
(c) Quantum acknowledges that FARU makes no promises, claims or
projections concerning the feasibility, number or viability of tire rubber
de-vulcanization and/or reactivation processes plant(s) in the Territory, nor of
the availability of raw materials or markets, and that it is the
responsibility of Quantum to establish to his own satisfaction that such a
plant or plants utilizing the licensed Technology are feasible.
2.4 Right to Use Trademarks.
Quantum shall use each of the Trademarks on an exclusive basis in connection
with the use, operation and promotion of Plants utilizing the licensed
Technology hereunder. Quantum may also use other trademarks, trade names,
service marks and commercial symbols of its own choosing in connection with
the use, operation and promotion of Plants hereunder.
2.5 Quality Control.
(i) Quantum shall use the Trademarks prominently on the Plant(s)
utilizing the licensed Technology and documentation relating to the Plant(s)
utilizing the licensed Technology, and in compliance with all relevant laws
and regulations;
(ii) Quantum shall accord FARU the right to inspect each Plant utilizing
the licensed Technology during normal business hours, without prior advance
notice, to confirm that QUANTUM's use of such Trademarks is in compliance with
this provision.
2.6 Right to Sub license.
QUANTUM shall have the right to sub license any of the rights and licenses
granted hereunder without the prior consent of FARU, so long as : (a) each sub
licensee agrees in writing to be bound by all of the terms and conditions
contained in this Agreement; and (b) FARU is provided with a copy of each such
agreement within ten (10) days after it is executed.
2.7 Non-Competition.
During the term of this Agreement , FARU shall not engage in any negotiations
with third parties with a view towards or engage in the manufacture of any
device which may be employed to utilise the Revulcon Technology for crumb
rubber or buffing processing if such device could reasonably be considered to
be in competition with the rights granted to Quantum described in this
Agreement; neither shall FARU shall negotiate or conclude any agreement with
any other party to construct or operate a Plant or Plants utilzing the
licensed Technology within the Territory while this Agreement is in effect.
III. OBLIGATIONS OF FARU
3.1 Training & Technical Assistance.
(a) To assist Quantum in exercising its rights hereunder, FARU agrees to
provide up to five man-days of training and technical assistance for each
plant to Quantum and its employees anywhere in the Territory, so that Quantum
will be able to use the Licensed Technology to its full potential. Such
training and assistance shall be rendered by FARU at no additional charge to
Quantum, except for expenses to be reimbursed to FARU as provided in Paragraph
3.1(c) below.
(b) To the extent Quantum requests such training and technical assistance
in excess of the man-days provided in Paragraph 3.1 (a) above, FARU shall be
paid a per diem amount to be negotiated between the parties before such
assistance and training is provided and which shall be paid before such
assistance and training is rendered; provided that FARU's representatives are
then able to provide such training and technical assistance.
(c) Travel costs, lodging, meals and all related expenses incurred by
FARU in connection with sending representatives into the Territory pursuant to
this Paragraph 3.1 (a) or (b) shall be paid for in full by the Quantum.
3.2 Additional Services.
(a) FARU shall use its reasonable efforts to provide Quantum with any and
all additional assistance reasonably requested by Quantum, including without
limitation; producing technical, sales, advertising and other reports and
information for Quantum which Quantum believes might be useful in promoting
the Plants; assisting Quantum in attempting to obtain from third parties
technical information, drawings, plans, specifications and other data which
are not proprietary to FARU and which FARU does not otherwise have the right
to use, in order to enable Quantum to respond to requests of any potential
customer, assisting Quantum in responding to technical inquiries from
potential customers of the Plants; and assisting Quantum in the testing of
Plants and in the further development of test equipment
(b) FARU shall xxxx Quantum for any such additional services at prices to
be agreed in advance by the parties hereto. FARU shall not commence
performance of any part of any services hereunder until such prices are
established in writing by the parties hereto.
(c) Such services shall be invoiced in Dollars (US) monthly by FARU.
Payment shall be due within thirty (30) days after FARU's receipt of each of
FARU's invoices therefor, and shall otherwise be paid in accordance with
Paragraph 4.5 hereof.
IV. COMPENSATION PAYABLE TO FARU
4.0 Minimum Technology Purchase -
QUANTUM agrees to purchase the Technology for utilization in plants, within
one year (1 year) of delivery by FARU to Quantum all Technology Transfer,
pricing of equipment, necessary documentation and technical specifications of
equipment, and payment by Quantum of the Licensing Feeas described in Exhibit
A.
4.1 Licensing Fee & Royalty
(a) QUANTUM agrees to pay FARU, for the rights granted to QUANTUM this
Agreement and for the services to be rendered by FARU under this Agreement;
and in addition, upon completion of each sub-licensing agreement secured and
negotiated by QUANTUM :
(i) A Fee equal to the total amount of licensed Technology for
utilization in plants ;
Exhibit A - Price List of all Fees, Disbursements and Miscellaneous
Costs;
The items supplied to be mutually agreed upon by FARU and the QUANTUM except
for those items in Exhibit A which are indicated as non-negotiable and which
must, in any case, be included. Payment in full of the Fee indicated in
Exhibit A as "Licensing Fee" shall, subject to the signing of this Agreement
by both parties, initiate this Agreement. Signed copies of Exhibit A shall
constitute part of this Agreement, however, the signing of this Exhibit may,
by mutual agreement, be made subsequent to the signing of this main part and
shall not delay the Effective date of this Agreement as per para. 1.5.
4.2 Contents of QUANTUM's Reports.
QUANTUM shall deliver to FARU within ninety (90) days after the end of each
Payment Period, starting on the Effective Date and every 90 days year
thereafter, a written report describing, for the applicable Payment Period;
(a) the number of Plants operated by QUANTUM and its sub licenseesdduring such
Payment Period;
4.3 Payments Accompany QUANTUM's Reports.
Each report for a payment Period required in Paragraph 4.2 hereof shall be
accompanied by a full payment to FARU of the amounts due according to this
agreement.
4.4 Royalty.
(a) QUANTUM shall not pay a continuing royalty to FARU over and above
the one time royalty specified in Attachment A pertaining to each plant
purchase.
(b) QUANTUM may, at its own discretion, charge a continuing per-pound
royalty to his sub-licensees. In order to keep the overall processing cost of
this technology within reasonable bounds and competitive, QUANTUM agrees to
limit such per-pound royalties to no more than five US cents per pound (US$
0.05/lb.). This Section 4.4(b) is subject to review and renegotiation on an
annual basis following one year from the date of this Agreement.
4.5 Payments of Royalties and Other Amounts.
(a) All payments under Paragraphs 3.2, 4.3 hereof shall be made in
Dollars (US) by wire transfer or other mutually agreed upon method, to such
bank or account as FARU may from time to time designate in writing.
(b) Whenever any payment hereunder shall be stated to be due on a day
which is not a Business Day, such payment shall be made on the immediately
succeeding Business day.
(c) Payments hereunder shall be considered to be made as of the day on
which they are received in FARU's designated bank or account.
(d) Quantum is required to make the initial licensed Technology purchase
according to the terms and conditions described in Exhibit "A" within one year
(1 year) of the signing of this agreement and the payment of the license fee
as described in Exhibit A.
4.6 QUANTUM's Books and Records.
Quantum agrees to make and keep full and accurate books and records in
sufficient detail to enable the licence fee payable hereunder to be
determined.
4.7 FARU Right to Audit.
On seven (7) day's prior written notice to Quantum, FARU and its certified
public accountants and other auditors shall have full access to the books and
records of QUANTUM and/or any or all of its sub licensees pertaining to
activities under this Agreement and shall have the right to make copies
therefrom at FARU's expense. FARU, its certified public accountants and other
auditors shall have such access at all reasonable times and from time to time
during normal business hours. Prompt adjustment shall be made by the proper
party to compensate for any errors or omissions disclosed by such audit.
4.8 Audit Information Confidential.
FARU agrees to hold confidential all information learned in the course of any
examination of books and records pursuant to Paragraph 4.8 above, except when
it is necessary for FARU to reveal such information in order to enforce its
rights under this Agreement in court, or similar dispute resolution or
enforcement proceeding or action, or except when compelled by law.
4.9 QUANTUM's Reports Conclusively Correct.
All quarterly reports and payments not disputed as to correctness by FARU
within one (1) year after receipt thereof shall thereafter conclusively be
deemed correct for all purposes.
V. INVENTIONS.
5.1 Registering Patents on Inventions.
If QUANTUM formulates, makes or conceives a patentable Invention, QUANTUM may
apply, at its own expense, for appropriate patent and other registrations of
such Invention in any and all jurisdictions in the Territory.
5.4 Registering Patents in the Territory.
QUANTUM may register any such patents for use in the Territory at his own
expense.
5.5 Quantum has the right to file for the existing patent within any country
not currently covered by the said patent.
VI. CONFIDENTIAL INFORMATION
6.1 Confidentiality Maintained.
Each party agrees that the other party hereto has a proprietary interest in
its Confidential Information. All disclosures to the receiving party, its
agency and employees shall be held in strict confidence by such receiving
party, its agents and employees, and such receiving party shall disclose the
Confidential information only to those of its agents and employees to whom it
is necessary in order to carry out their duties as limited by the terms and
conditions hereof. The receiving party shall not use the other party's
Confidential Information except for the purposes of exercising its rights and
carrying out its duties hereunder.
The provisions of this paragraph 6.1 shall also apply to any consultants or
subcontractors that the receiving party may engage in connection with its
obligations under this Agreement.
6.2 Information in Connection with Sale.
FARU hereby grants QUANTUM the right during the term of this Agreement to
distribute to QUANTUM's sub licensees in connection with the operation of
Plants utilizing the licensed Technology, that part of the Technical
Information necessary for such sub licensee to use and operate such Plant,
even if such information includes some of FARU's Confidential Information, to
the extent that FARU and the QUANTUM agree that such technical Information is
helpful to such sub licensee in order to operate the Plant.
6.3 Liability for Disclosure.
Notwithstanding anything contained in this Agreement to the contrary, neither
party shall be liable for a disclosure of the other party's Confidential
Information if the information is so disclosed ;
(a) was in the public domain at the time it was disclosed by the
disclosing party to the receiving party; or
(b) was independently developed by the receiving party and is so
demonstrated promptly upon receipt of the documentation and technology by the
receiving party; or
(c) becomes known to receiving party from a source other than the
disclosing party without breach of this Agreement by the receiving party and
can be so demonstrated.
VII. TERMINATION.
Unless it is terminated earlier pursuant to the terms of this Article 8, this
Agreement shall continue in full force and effect in perpetuity.
7.1 Termination.
Upon the occurrence of any of the following events, this Agreement may be
terminated by the non breaching party by giving written notice of termination
to the breaching party, such termination to be immediately effective upon the
giving of such notice of termination. Unless for reasons of force majeure,
outside the control of Faru, Quantum or sub-Licensee.
(a) the occurrence of a material breach or default as to any obligation
hereunder by either party and the failure of such breaching party to promptly
pursue (within thirty (30) days after receiving written notice thereof from
the non breaching party) a reasonable remedy designed to cure (in the
reasonable judgment of the non-breaching party) such material breach or
default ; or
(b) the filing of a petition in bankruptcy, insolvency or reorganization
against or by either party, or either party becoming subject to a composition
for creditors, whether by law or agreement, or either party going into
receivership or otherwise becoming insolvent (for the purposes of this
Paragraph 7.1., such party shall be considered to be a breaching party).
7.2 After Termination.
If QUANTUM is the breaching party, all rights to the Territory provided in
the Agreement shall revert immediately to FARU. However, Quantum will retain
all rights with regard to any existing sub-license holder pursuant to the
terms of this Agreement.
7.3 Payment Obligations Continue.
Upon termination of this Agreement due to breach by Quantum, nothing shall be
construed to release QUANTUM from its obligations to pay FARU any and all
royalties or other amounts accrued but unpaid hereunder prior to the date of
such termination.
7.4 No Damages for Termination.
The parties hereto agree that if either party terminates the other party
pursuant to this Article 8, then the termination party shall not be liable
form damages or injuries suffered by the other party as a result of that
termination.
7.5 Sub-Licensees not to be Terminated.
Should this Agreement between QUANTUM and FARU be terminated for any reason,
the Agreements with sub-Licensees, which have been negotiated and completed by
QUANTUM, shall continue in effect as between Quantum and the sub-licensee and
without penalties or requirement of remedies unless such Agreements with
sub-Licensees are also in default, in which case each sub- Licensees agreement
shall be treated and considered separately and distinctly by FARU.
7.6 Sub- Licensees Rights of QUANTUM Terminated.
Provided the Sub- Licensees are not in breach of this Agreement, they shall
retain all rights to operate according to the provisions of this Agreement.
VIII. PRESENTATIONS. WARRANTIES AND COVENANTS OF FARU.
8.1 Ownership of Licensed Technology.
FARU hereby represents and warrants to QUANTUM that, to the best of its
information and belief, FARU is the lawful owner of the Licensed Technology,
free and clear of all security interests, encumbrances, liens, mortgages,
licenses or rights of third parties which would impair the licenses and rights
granted to QUANTUM hereunder.
8.2 No Conflicting Agreements.
FARU hereby represents, warrants and covenants that it has not and will not
enter into any agreement with or become subject to any obligation in favor of
any third party which might conflict with its obligations hereunder.
IX MISCELLANEOUS
9.1 Assignments. Except as provided in Paragraph 2.6 hereof, this Agreement
and any and all of the rights and obligations of either party hereunder shall
not be assigned, delegated, sold, transferred or otherwise disposed of, by
operation of law or otherwise, without the prior written consent of the other
party. This Agreement shall be binding upon, and inure to the benefit of, FARU
and QUANTUM and their respective successors and assigns, to the extent such
assignments are in accordance with this paragraph 9.1.
9.2 Governing Law.
This Agreement shall be governed, interpreted and construed in accordance with
the laws of the State of Nevada, United States of America, as such laws are
implied to agreements entered into and to be performed entirely within its
borders between its residents. In the unlikely event of either party bringing
a law suit against the other, each party has the right to litigate against the
other under the Laws of the United States .
9.3 Arbitration.
Any dispute, controversy or claim arising out of or relating to this Agreement
or to a breach thereof, including its interpretation, performance or
termination, shall be submitted to and finally resolved by arbitration. The
arbitration shall be conducted in accordance with the commercial rules of the
United Nations Conference on International Trade Law ("UNCITRAL") which shall
be administered in London, England (including the rendering of the award) by
the London Court of International Arbitration. The arbitration, shall be the
exclusive forum for resolving such dispute, controversy or claim. For the
purposes of this arbitration, the provisions of this Agreement and all rights
and obligations thereunder shall be governed and construed in accordance with
the laws of the State of California, United States of America, as such laws
are applied to agreements entered into and to be performed entirely within its
borders between its residents. The decision of the arbitrators shall be
executory, final and binding upon the parties hereto, and the expense of the
arbitration (including without limitation the award of attorney's fees to the
prevailing party) shall be paid as the arbitrators determine.
9.4 Waiver.
A waiver of any breach of any provision of this Agreement shall not be
construed as a continuing waiver of other breaches of the same or other
provisions of this Agreement.
9.5 Non-Circumvention.
In the event that QUANTUM or any of its designated agents shall introduce any
other person or persons, company or corporation to the FARU Patents, systems
or plant, and should such introduction, discussion, negotiation, conversation
or written communication result in said person, persons, company or
corporation entering into an Agreement with FARU for the licensing of said
patents, processes or the construction of a plant, whether within or without
the Territory covered by this Agreement, said person, persons, company or
corporation shall be deemed to be a sub- Licensee of QUANTUM under this
Agreement and shall be governed by all the conditions contained in this
Agreement.
9.6 No Other Relationship.
Nothing herein contained shall be deemed to create a joint venture, agency or
partnership relationship between the parties hereto. Neither party shall have
any power to enter into any contracts or commitments in the name of, or on
behalf of, the other party, or bind the other party in any respect whatsoever.
9.7 Notices.
Each notice required or permitted to be sent under this Agreement shall be
given by Fax transmission or by registered or recorded delivery letter to FARU
and to QUANTUM at the addresses and FAX numbers supplied. Either party may
change its address and/or fax number for purposes of this Agreement by giving
the other party written notice of its new address and/or Fax number. Any such
notice if given or made by registered or recorded delivery letter shall be
deemed to have been received on the earlier of the date actually received and
the date ten (10) Business Days after the same was posted (and in proving such
it shall be sufficient to prove that the envelope containing the same was
properly addressed and posted as aforesaid) and if given or made by telecopy
transmission shall be deemed to have been received at the time of despatch,
unless such date of deemed receipt is not a Business Day, in which case the
date of deemed receipt shall be the next succeeding Business Day.
9.8 Entire Understanding.
This Agreement embodies the entire understanding between the parties relating
to the subject matter hereof, whether written or oral, and there are no prior
representations, warranties or agreements between the parties not contained in
this Agreement.
9.9 Invalidity.
If any provision of this Agreement is declared invalid or unenforceable by a
court having competent jurisdiction, it is mutually agreed that this Agreement
shall endure except for the part declared invalid or unenforceable by order of
such court. The parties shall consult and use their best efforts to agree upon
a valid and enforceable provision which shall be a reasonable substitute for
such invalid or unenforceable provision in light of the intent of this
Agreement.
9.10 Amendments.
Any amendment or modification of any provision of this Agreement must be in
writing, dated and signed by both parties hereto.
9.11 Fees Payable.
"Licensing Fee" and other fees are payable as described in Exhibit A and in
para 4.3 of this Agreement subsequent to the signing of this Agreement by the
QUANTUM.
9.12 Responsibility for Taxes.
(a) Taxes in the territory now or hereafter imposed with respect to the
transactions contemplated hereunder (with the exception of income taxes or
other taxes imposed upon FARU and measured by the gross or net income of FARU)
shall be the responsibility of QUANTUM, and if paid or required to be paid by
FARU, the amount thereof shall be added to and become a part of the amounts
payable by QUANTUM hereunder.
(b) All taxes that become due and payable in the territory, from royalty
payments earned by FARU from Quantum and payable to FARU by the Quantum, under
the terms of this Agreement, shall be paid by Quantum on behalf of FARU and
the net proceeds will be passed to FARU under the terms of this Agreement
accordingly.
9.13 Survival of Contents.
Notwithstanding anything else in this Agreement to the contrary, the parties
agree that Paragraphs 2.7, 3.1(a), (b) and (c), 3.2 (a), (b) and (c), 5.2,
8.4, 8.5, 10.1, 10.2, 10.3, 10.5, 10.6, 10.7, 10.8, 10.9, 10.10, 10.12, and
10.13 and Articles IV, VI & VII shall survive the termination or expiration of
this Agreement, as the case may be, to the extent required thereby for the
full observation and performance by any or all the parties hereto.
9.14 Table of Contents and Headings.
Any table of contents accompanying this Agreement and any headings contained
herein are for directory purposes only, do not constitute a part of this
Agreement, and shall not be employed in interpreting this Agreement.
9.15 Counterparts.
This Agreement may be executed in any number of counterparts and each such
counterpart shall be deemed to be an original.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement.
Signed this date : February 19th, 1998
by
FARU GmbH. The Quantum Group, Inc.
Patent Holder. Eurectec, Inc.
Signed : ___________________ Signed : _____________________
Name : Xx. Xxxxx Xxxxxxx Name: Xxxxxxxxxx Xxxxxxx
Title : Geschaftsfuhrer Title : President & CEO
Witness :___________________ Witness :_____________________
Signed : ___________________ Signed : _____________________
EXHIBIT "A"
Appendix to the License Agreement between
FARU GmbH.
and
The Quantum Group, Inc.
for
"REVULCON" Vulcanization Technology
Price List of Fees, Disbursements and Miscellaneous Costs
The following Costs and other considerations constitute part of the above
described License Agreement and shall be binding upon the parties to the
Agreement.
Item One: Licensing Fee: One hundred fifty thousand Dollars (US$150,000) ,
payable seventy thousand dollars, ($70,000) by wire transfer or certified
funds immediately subsequent to the signing of this agreement and receipt by
QUANTUM of the Technology Transfer package, and four monthly installments of
twenty thousand dollars ($20,000) commencing thirty days after the signing of
the agreement, in consideration of which, FARU grants the exclusive right to
build, construct, operate and/or sub-license the construction, building or
operation of such REVULCON Plants as are the subject of this Agreement, within
the boundaries of the Territory stated in the Agreement. The $150,000
Licensing Fee is to be applied to the Royalty payments listed below in
ItemTwo.
Item Two: Royalty: Ten thousand Dollars (US$10,000) for each and every
REVULCON Plant QUANTUM builds, constructs, operates and/or sub-licenses the
construction, building or operation of such REVULCON Plant and employs the
licensed Technology, as are the subject of this Agreement, up to a total of
fifteen, (15) such plants, with Royalty payment due in one lump sum upon
successful startup of each and every REVULCON Plant utilizing the licensed
Technology and;
Twenty thousand Dollars (US$20,000) for each and every
REVULCON Plant QUANTUM builds, constructs, operates and/or sub-licenses the
construction, building or operation of such REVULCON Plant and employs the
licensed Tehcnology, as are the subject of this Agreement, for all such
plants in excess of the initial fifteen, (15). The Royalty shall be due in
one lump sum upon successful startup of each and every REVULCON Plant
utilizing the licensed Technology.
Item Three: FARU agrees to limit the commission and other fees charged to
QUANTUM other than as mentioned in Item Two above, to a maximum of 5% of the
best negotiated price for the equipment as purchased from the manufacturer for
utilizaitno of the licensed Technology, except on the first plant where this
will be waived.
Item Four: Subsequent to the signing of this agreement and payment by
QUANTUM of the License fee as described in Item One, and upon receipt of the
Technology Transfer materials from FARU, including technical specifications,
price lists and other documentation required for the marketing and
distribution of the technology, QUANTUM agrees to purchase at least five
plants in the following twelve month period, provided equipment manufacturers
and other necessary suppliers are willing, ready and able to support Quantum
or its sub-licensees. Upon successful completion of this Item Four, the
agreement will be automatically extended for a period of five years during
which Quantum agrees to purchase the licensed Technology for an addiitional
twenty-five (25) plants.
Signed : _____________________________ (FARU GmbH.)
Signed : _____________________________ (Quantum).
Date of Agreement : ___________________________
EXHIBIT "B"
Appendix to License Agreement between
FARU GmbH., and The Quantum Group, Inc.
Recommended Equipment Package as Outlined in the Technology Transfer Package
and Price List
Details of this to be supplied by FARU within 30 days of signing this
agreement as outlined in the FARU know-how package.
EXHIBIT "C"
Appendix to the License Agreement between FARU GmbH.
and
The Quantum Group, Inc.
for
"REVULCON" Vulcanization Technology
LIST & SAMPLES OF TRADEMARKS & LOGOS
The following items constitute part of the above described License Agreement
and shall be binding upon the parties to the Agreement.
FARU agrees to have QUANTUM create a LOGO and register this within the
territory for the REVULCON trade name.
Further, QUANTUM has the right to register the patent in the territory where
the patent has not been previously registered.
SEE ATTACHED EXAMPLES
Signed : ________________________ (FARU GmbH.)
Signed : ________________________ (Quantum)
Date of Agreement : _____________________
EXHIBIT "D"
Appendix to the License Agreement between FARU GmbH.
and
The Quantum Group, Inc.
for
"REVULCON" Vulcanization Technology
LIST OF WARRANTIES attached.
The following Warranties constitute part of the above described License
Agreement and shall be binding upon the parties to the Agreement.
Signed : _____________________________ (FARU GmbH.)
Signed : _____________________________ (Quantum)
Date of Agreement : _________________________
