LICENSE AGREEMENT
This License Agreement ("Agreement") is made and entered into
effective June 25, 1999 by and between Century Rubber, LLC, a
California Limited Liability Company ("Century" or "Licensor") and
Industrial Rubber Innovations, Inc., a Florida corporation ("IRI" or
"Licensee").
RECITALS
A. WHEREAS, Licensee acknowledges that Licensor is the
sole and exclusive owner of the entire right, title and interest,
together with all goodwill and intellectual property connected
therewith, in and to that certain and specific rubber compound
formula identified as NS 500 and held by Xxxxx Xxxx, Esq., 0000 X
Xxxxxx, Xxxxxxxxxxx, XX 00000 (the "Formula").
B. WHEREAS, Licensee desires to obtain the exclusive
right to manufacture, market, sell, and distribute products made
from or derived from the Formula.
C. WHEREAS, Licensor is willing to permit the
manufacture, marketing, sale, and distribution of products made from
or derived from the Formula by Licensee upon the terms, conditions,
and covenants set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, the parties hereby agree as follows:
1. GRANT OF LICENSE.
A. Upon the terms and conditions hereinafter set forth,
Licensor hereby grants to Licensee and Licensee hereby accepts the
EXCLUSIVE, NON-TRANSFERABLE right, license, and privilege to
manufacture, market, sell, and distribute products made from or
derived from the Formula (the "Licensed Products") to the WORLD-WIDE
marketplace/territory.
B. The term of this Agreement and license hereby granted
shall commence on the date this Agreement is executed and shall
continue indefinately unless terminated in accordance with Paragraph
7 hereof. During the term of this Agreement, provided Licensee has
fulfilled all of its obligations hereunder and is not otherwise in
breach of this Agreement, Licensor will not license the Formula to
or permit the manufacture, marketing, sale, or distribution of
Licensed Products by another person or entity.
C. As a material term of this Agreement, Licensor
acknowledges and agrees that Licensee shall be granted the option to
acquire a license for any and all future formulas and products
developed, held, or owned by Licensor ("Future Products") for so
long as this Agreement is in effect, said license to be on terms
agreed upon between the parties. In addition, Licensee is hereby
granted a right of first refusal to acquire a license for any and
all Future Products on terms identical to those offered by any other
party.
2. TERMS OF PAYMENT.
A. Licensee agrees to pay to Licensor as fees for the
use of the Formula the sum of one dollar ($1.00).
3. LICENSOR'S TITLE AND PROTECTION OF LICENSOR'S RIGHTS.
3.1 Licensee agrees that it will not during the term of
this Agreement or thereafter attack the title or any rights of
Licensor in and to the Formula or attack the validity of this
Agreement. Licensee agrees to assist Licensor and to cooperate
fully with Licensor to procure any protection or to protect any of
the rights of Licensor to the Formula or any patent, trademark,
service xxxx, trade name or copyrights or any other protection or
right pertaining thereto. Licensee shall promptly notify Licensor
in writing of any infringement or imitations by others of Licensor's
rights in the Formula which may come to Licensee's attention, and
Licensor shall have the sole right, in its discretion, to determine
whether or not any action shall be taken on account of such
infringement or imitations. Licensor may prosecute an action for
infringement and join Licensee in such action.
3.2 Disclosure of Confidential Information.
(a) Licensee shall not, during the term of this Agreement
and thereafter, communicate, divulge, or use for the benefit of
himself or any other person, partnership, association, or
corporation, either directly or indirectly, any information or
knowledge concerning the Formula and any information which may be
communicated to Licensee by Licensor during the term of this Agreement.
(b) Licensee covenants and agrees that during the term of
this Agreement he will not do any act or fail to do any act which
may be prejudicial or injurious to the business and goodwill of
Licensor.
4. INDEMNIFICATION AND INSURANCE.
Licensee agrees to assume full responsibility for compliance
with all laws in connection with the manufacture and/or sale of the
Licensed Products. Licensor assumes no liability to Licensee or any
third party with respect to the Licensed Products. Licensee hereby
agrees to indemnify, defend and hold harmless Licensor and
Licensor's officers, directors, shareholders, members, managers,
agents, employees, representatives, suppliers and related companies
against any and all claims, suits, loss and damage arising out of,
based upon, or in connection with the Licensed Products including,
without limitation, those arising out of any alleged defect thereon
or infringement thereby of any alleged patent, trademark, copyright,
trade secret, contractual statutory or judicially created rights of
others. Licensee agrees that it will obtain and maintain in full
force and effect during the entire term of this Agreement
comprehensive general liability, property damage and product
liability insurance acceptable to Licensor in its sole discretion.
5. DISTRIBUTION.
Licensee agrees that during the term of this Agreement, at no
expense to Licensor, it will diligently and continuously, and to the
greatest extent possible, manufacture, promote, distribute and sell
the Licensed Products.
6. RECORDS.
Licensee agrees to keep accurate books of account and records
covering all transactions relating to the license hereby granted.
Licensor and its duly authorized representatives shall have the
right at reasonable times to examine said books of account and
records, including without limitation, any available summaries
and/or reports with respect to the Formula or this Agreement, and
the right at any reasonable time upon five (5) days prior notice to
audit Licensee's business with respect to the Formula.
7. TERMINATION.
Licensor shall have the right to terminate this Agreement
immediately in any of the following events:
(a) If Licensee shall fail to perform any condition or
covenant provided for in this Agreement within thirty (30) days
after written notice of such failure; Provided, however, that in the
event of any breach of this Agreement by Licensee, Licensor shall
provide written notice to Licensee and Licensee shall have a period
of ten (10) days to correct the breach without risk of termination
of this Agreement.
(b) If Licensee during the term of this Agreement becomes
insolvent or files any petition under any bankruptcy act, whether
state or federal, or is adjudicated a bankrupt, or an insolvency
proceeding is instituted against Licensee, or any receiver is
appointed for Licensee's business or property, or any trustee in
bankruptcy is appointed for Licensee.
8. PROCEDURE ON TERMINATION OR EXPIRATION.
Upon the termination or expiration of this Agreement,
Licensee may dispose of any Licensed Products then on hand, but only
in conformity with the following express conditions:
(a) Licensee shall deliver to Licensor a complete
inventory of Licensed Products on hand not later than thirty (30)
days following the effective date of expiration or service of the
notice of termination, whichever occurs first;
(b) Licensee shall not cause any further Licensed
Products to be manufactured after termination or service of
termination, whichever occurs first;
(c) The Licensed Products specified in the inventory
furnished to Licensor pursuant to the provisions of paragraph 8(a)
hereof may be sold only during a period of one hundred twenty (120)
days after the effective date of expiration or termination.
Following the 120 period, any Licensed Products specified in the
inventory but not sold shall be delivered to Licensor.
9. EFFECT OF TERMINATION OR EXPIRATION.
Upon and after the expiration or termination of this
Agreement, (i) all rights granted to Licensee hereunder shall
forthwith revert to Licensor, and (ii) Licensee shall refrain from
further use of the Formula or any further reference to the Formula,
direct or indirect, in connection with the manufacture, sale or
distribution of Licensee's products, except as provided in paragraph 8.
10. FORCE MAJEURE.
In the event that either party hereto is delayed or hindered
from the performance of any act required hereunder by reason of
strike, lockouts, prohibitive governmental laws or regulation,
riots, war or other reasons of a like nature beyond the control of
such party, then performance of such acts shall be excused for the
period of the delay and the period of the performance of any such
acts shall be extended for a period equivalent to the period of such
delay but in no event shall said performance period be extended more
than one hundred twenty (120) days.
11. NOTICES.
All notices or other communications hereunder shall be in
writing and shall be deemed given when delivered personally or by
facsimile or three (3) days after being mailed by first class
registered or certified mail, return receipt requested, properly
addressed to Licensor and to Licensee at the following addresses:
If to Licensor: Century Rubber, LLC
0000 XxXxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxx
Facsimile (000) 000-0000
If to Licensee: Industrial Rubber Innovations, Inc.
0000 XxXxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, President
Facsimile (000) 000-0000
with a copy to: The Law Offices of M. Xxxxxxx Xxxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Facsimile (000) 000-0000
Any party may change its address for receiving notices
hereunder by written notice to the other parties.
12. NO ASSIGNMENT OR SUBLICENSE.
This Agreement is personal to Licensee and neither this
Agreement nor any of the rights or duties hereunder may be assigned,
mortgaged, sublicensed or otherwise encumbered by Licensee or by
operation of law.
13. PARTIES.
This Agreement shall inure to the benefit of and be binding
upon Licensor and Licensee, and their respective affiliates,
officers, directors, registered representatives, employees and
persons who control or are under the control of Licensor and
Licensee and their respective successors and assigns, and no other
person shall acquire or have any right by virtue of this Agreement.
14. VALIDITY OF AGREEMENT.
The invalidity of any portion of this Agreement shall not
affect the validity of the remainder thereof.
15. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement and
supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations between the parties with
respect to the Formula of this Agreement. No amendment or addition
to, or modification of, any provision contained in this Agreement
shall be effective unless fully set forth in writing signed by all
of the parties hereto.
16. FURTHER ASSURANCES.
Each of the parties hereto agrees on behalf of such party,
his, her or its successors and assigns, that such party will,
without further consideration, execute, acknowledge and deliver such
other documents and take such other action as may be necessary or
convenient to carry out the purposes of this Agreement.
17. ATTORNEY'S FEES.
If either party fails to perform any of its obligations
hereunder, or if a dispute arises concerning the meaning of
interpretation of any provision of this Agreement, the defaulting
party or the party not prevailing such in dispute, as the case may
be, shall pay any and all costs and expenses incurred by the other
party in enforcing or establishing its rights under, including,
without limitation, court costs and reasonable attorneys' fees.
18. GOVERNING LAW AND SUPERSESSION; VENUE.
This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of California
and shall supersede any previous agreements, written or oral,
expressed or implied, between the parties relating to the Formula
hereof. Each of the parties hereto agrees that any action or suit
which may be brought by any party hereto against any other party
hereto in connection with this Agreement or the transactions
contemplated hereby may be brought only in a federal or state court
in Xxxx County, California.
19. NO PARTNERSHIP.
Nothing herein contained shall be construed to constitute an
association, partnership, unincorporated business or any other
entity between Licensor and Licensee.
20. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which taken
together shall constitute but one and the same Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the day and year first set forth above.
LICENSOR LICENSEE
Century Rubber, LLC, Industrial Rubber Innovations, Inc.,
a California Limited Liability Company a Florida corporation
/s/ Xxxxxx Xxxx /s/ Xxxx Xxxxxx
By: Xxxxxx Xxxx By: Xxxx Xxxxxx
Its: Manager Its: President