EXHIBIT 10.4
THIS DOCUMENT IS COMPANY CONFIDENTIAL
LICENSE AGREEMENT
THIS AGREEMENT, entered into and effective as of the 1st day of
September, 2000 (the "Effective Date") by and between TRISTRATA
TECHNOLOGY, INC., a Delaware corporation having its principal place
of business at 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, X.X. Xxx 0000,
Xxxxxxxxxx, Xxxxxxxx 00000 (hereinafter referred to as "LICENSOR")
and NEOTERIC COSMETICS, INC. a Colorado corporation having a
principal place of business at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000 (hereinafter referred to as "LICENSEE");
RECITALS
WHEREAS, LICENSOR and LICENSEE are currently engaged in
litigation in the United States District Court for the District of
Delaware styled, TriStrata Technology, Inc. v. Neoteric Cosmetics,
et. al, Civil Action No. 96-227 (JFF), concerning LICENSOR's claim
of infringement of one or more of the Licensed Patents (as defined
below) by LICENSEE (hereinafter referred to as the "Delaware
Litigation"); and
WHEREAS, LICENSEE in the course of its business sells
cosmetic and skin care products and is interested in obtaining
from LICENSOR a license to make, have made, use, offer for sale
and/or sell Licensed Products (as hereinafter defined) under the
Licensed Patent Rights (as hereinafter defined) in the Territory
(as hereinafter defined); and
WHEREAS, LICENSOR and LICENSEE, by executing this License
Agreement, desire to resolve fully the claims against each other
in the Delaware Litigation; and
WHEREAS, subject to, and upon, all of the terms and
conditions of this Agreement. LICENSOR is willing to grant to
LICENSEE a non-exclusive license to make, have made, use, offer
for sale and sell the Licensed Products (as hereinafter defined)
under the Licensed Patent Rights (as hereinafter defined) in the
Channel of Trade (as hereinafter defined) in the Territory (as
hereinafter defined);
NOW, THEREFORE, in consideration of the foregoing premises
and of the mutual covenants, promises and agreements set forth
herein, LICENSOR and LICENSEE, intending to be legally bound,
hereby mutually agree as follows:
ARTICLE I - GENERAL
1.01 All capitalized terms used in this Agreement (other
than the names of parties and Article headings) shall have the
meanings established for such terms herein.
ARTICLE II - DEFINITIONS
2.01 "Excluded Channel of Trade" shall mean: (1) direct
marketing of Licensed Products (as defined in Section 2.06 below)
by door-to-door sales representatives to consumers; (2) mail order
sales generated as a result of a door-to-door sales
representative's direct contact with a consumer; (3) products
requiring a prescription from a physician or medical professional;
and (4) sales to physicians for resale to patients.
2.02 "Channel of Trade" shall mean marketing and sales of
Licensed Products in all channels of trade in the Territory except
for the Excluded Channel of Trade.
2.03 "Licensed Patent Rights" shall mean, subject to the
specific exclusions set forth in Sections 2.04, those portions of
the claims of the issued Patents in the Territory set forth in
Schedule A hereto, and any other patents that may issue from the
applications in the Territory listed in Schedule A, and any other
patents that may issue from patent applications owned or
controlled by LICENSOR in the Territory, and all divisions,
continuations, continuations-in-part, reexaminations, reissues
and extensions thereof, covering the Licensed Products (as
defined below in Section 2.05) in the Territory for (1) the
reduction, prevention and retardation of human skin wrinkles,
including fine lines on the human skin; and/or (2) the reduction,
prevention and retardation of the appearance of skin changes
associated with intrinsic or extrinsic aging, including without
limitation, those changes consisting of wrinkles, thinning of
the skin, deepening of skin lines, yellowish skin, loss of
elasticity, loss of recoilability and loss of collagen.
2.04 Notwithstanding anything herein to the contrary,
"Licensed Patent Rights" shall not include any rights to any
patents or patent applications that: (1) claim any alpha hydroxyacids,
polyhydroxyacids or related compounds other than those specific
alpha hydroxyacids comprising the Licensed Products as defined
below in Section 2.05; or (2) claim any methods of use other than
for (a) the reduction, prevention and retardation of human skin
wrinkles, including fine lines on the human skin and/or (b) the
reduction, prevention and retardation of the appearance of skin
changes associated with intrinsic or extrinsic aging, including
without limitation those changes consisting of wrinkles, thinning
of the skin, deepening of skin lines, yellowish skin, loss of
elasticity, loss of recoilability and loss of collagen.
2.05 (a) "Licensed Products" shall mean: subject to the
limitations set forth in Section 2.04 above, any cosmetic and/or
dermatologic preparation for topical application to the human skin
within the definition of the Licensed Patent Rights comprising,
alone or in combination: (1) lactic acid and/or its salts;
(2) glycolic acid and/or its salts; or (3) citric acid and/or
its salts (b) For the purposes of Section 4.03, a product is not
a Licensed Product and shall not be deemed to infringe, under a
method claim contained in the Licensed Patent Rights if: (a) the
product does not contain any alpha hydroxyacid(s); or (b) even if
the product contains one or more of the acids set forth in this
Section 2.05(a)(1)through (3) above, a claim within the scope of
the Licensed Patent Rights is not made, and has never been made,
for said product on the product container or packaging, or any
product inserts, or any literature distributed about or concerning
said product, or any print, radio, television or other advertising
media concerning said product. Any disputes concerning whether a
product is a Licensed Product shall be discussed by the parties
who shall in good faith attempt to resolve said dispute, failing
which the dispute shall be arbitrated in accordance with
Section 13.02 of this Agreement.
2.06 "Territory" shall mean the United States, its
possessions and territories, including the Commonwealth of Puerto
Rico, Canada, Mexico. Provided royalties are paid in accordance
with Section 4.03 and on the same Net Sales transfer price as
Licensed Products sold in the United States, LICENSEE shall also
have the right to export Licensed Products manufactured in the
United States to the following territories: South America, China,
Taiwan, Philippines, Singapore, Indonesia, Australia, New Zealand,
Iceland, Korea, Thailand, Malaysia, Saudi Arabia, Kuwait, Bahrain,
Qatar, United Arab Emirates-Oman, Egypt, Syria, Lebanon, Jordan,
Yemen, India, Pakistan, Iraq and Iran.
2.07 An "Affiliate" of LICENSEE shall mean the wholly owned
subsidiaries of LICENSEE and corporations under common control with
LICENSEE, which are listed on Schedule B hereto, as said Schedule B
may from time to time be amended with the prior written consent of
LICENSOR. Affiliates of LICENSEE shall be subject to all of the
terms and provisions of this Agreement. Notwithstanding any
provision to the contrary herein, LICENSEE shall not have the right
to include any new Affiliate under this Agreement that has received
notice from LICENSOR of infringement of one or more of LICENSOR's
patents without the prior written consent of LICENSOR and on such
terms as shall be agreed to by LICENSOR and LICENSEE.
2.08 An "Affiliate" of LICENSOR shall mean any person,
corporation, partnership or other entity that directly or indirectly
controls, is controlled by, or is under common control with, LICENSOR.
ARTICLE III - LICENSE GRANT
3.01 Subject to all of the terms and provisions of this
Agreement, LICENSOR grants to LICENSEE and Affiliates of LICENSEE
(as defined in Section 2.07) under the Licensed Patent Rights a
non-exclusive license to make, have made, use, offer for sale and
sell in the Territory Licensed Products in the Channel of Trade.
Notwithstanding any provisions herein to the contrary, no rights
are granted hereunder by LICENSOR to LICENSEE or to any Affiliate
of LICENSEE to make, have made, use, offer for sale or sell any
Licensed Products either outside the Territory or in the Excluded
Channel of Trade in the Territory.
3.02 Notwithstanding any provision herein to the contrary,
no right is granted or otherwise conveyed by this Agreement to any
entity to make, have made, use, offer for sale, sell or otherwise
dispose of Licensed Products in the Territory other than to
(1) LICENSEE; and (2) to Affiliates of LICENSEE to the extent
provided in Schedule B to this Agreement, as said Schedule B may
be amended from time to time pursuant to the provisions of
Section 2.07.
3.03 Notwithstanding any provision herein to the contrary,
no right is granted or otherwise conveyed herein by LICENSOR to
LICENSEE or to any Affiliate of LICENSEE to make, have made, use,
offer for sale, sell or otherwise dispose of Licensed Products
other than those which are sold and/or distributed under the brand
name(s) and/or trademark(s) of LICENSEE or an Affiliate of LICENSEE
listed on Schedule C hereto (the "Marks"), as said Schedule C may
from time to time be amended by written notice to LICENSOR.
Licensed Products of LICENSEE and its Affiliates are currently
sold and/or distributed, or may be sold and/or distributed, in
the Territory under the Marks set forth on Schedule C hereto.
LICENSEE agrees that it will not make, have made, use, offer for
sale or sell Licensed Products other than under the Marks,
without prior written notice to LICENSOR.
3.04 As a condition to receiving the license under the
Licensed Patent Rights hereunder, LICENSEE hereby unconditionally
guarantees the compliance and performance by each Affiliate of
LICENSEE with all of the provisions of this Agreement, including,
without limitation, the payments of all amounts due to LICENSOR
pursuant to any of the provisions of this Agreement.
3.05 The term of this Agreement and of the license granted
hereunder shall commence as of the Effective Date and shall expire
or terminate upon the expiration of the last to expire of the
Licensed Patent Rights or, if. applicable, upon the earlier
termination of this Agreement pursuant to any of the provisions
of Article VII of this Agreement, or upon the final non-appealable
decision of a court of appropriate jurisdiction holding the
Licensed Patent Rights to be invalid.
3.06 LICENSOR specifically reserves the right to, and to
grant licenses to others to, make, have made, use, offer for sale,
sell or otherwise dispose of Licensed Products within or without
the Territory on such terms as LICENSOR may deem appropriate. Upon
receipt of information that a third-party may be infringing the
Licensed Patent Rights in the Territory, LICENSOR will consider
in good faith if such third-party is infringing. In the event
LICENSOR concludes that said third-party is infringing the Licensed
Patent Rights in the Territory, LICENSOR will place said
third-party on notice of the existence of the Licensed Patent Rights
and take reasonable steps to terminate the infringement short of
litigation. Notwithstanding anything contained herein to the
contrary, LICENSOR has no obligation whatsoever to commence
litigation against any third-party or to take any other specific
actions other than as expressly provided in this Section 3.06.
3.07 No license, express or implied, is granted hereunder
to any other patent rights or under any other patents or technology
owned, used, or otherwise controlled by LICENSOR or any Affiliate
of LICENSOR. LICENSOR currently is unaware of any other patents or
patent applications owned or controlled by LICENSOR in the
Territory in additional to the Licensed Patent Rights that are or
would be infringed based on LICENSEE's current products and
product claims for said products.
ARTICLE IV - PAYMENTS, ROYALTIES AND REPORTS
4.01 [DELETION]
4.02 [DELETION]
4.03 [DELETION]:
4.04 [DELETION]
4.05 [DELETION].
4.06 [DELETION]
4.07 [DELETION]
4.08 [DELETION]
ARTICLE V - REPRESENTATIONS AND WARRANTIES; LIMITATIONS
5.01 LICENSOR represents that it has the full authority
to grant to LICENSEE the rights with respect to the Licensed
Patent Rights in accordance with the provisions of this Agreement
and that LICENSOR is the assignee of all patents and patent
applications within the definition of Licensed Patent Rights
listing Xxxxxx Xxx Xxxxx, M.D. and Xxxx Xx, Ph.D., O.M.D. as
inventors that are necessary to effectuate the purposes of this
Agreement.
5.02 LICENSOR MAKES NO REPRESENTATIONS TO LICENSEE, EXTENDS
NO WARRANTIES OF ANY NATURE, WRI1TEN OR ORAL, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND HEREBY
DISCLAIMS ANY AND ALL WARRANTIES, AND LICENSOR ASSUMES NO
LIABILITIES OR RESPONSIBILITIES OF ANY NATURE WHATSOEVER WITH
RESPECT TO THE MANUFACTURE, DISTRIBUTION, SALE, USE OR OTHER
DISPOSITION BY LICENSEE OR ANY AFFILIATE OF LICENSEE, OR ANY
VENDEE OR OTHER TRANSFEREE OR USER OF ANY OF THE LICENSED PRODUCTS
OR OTHER PRODUCTS WHICH INCORPORATE, OR ARE FORMULATED OR
MANUFACTURED BY USE OF, ANY OF THE LICENSED PATENT RIGHTS OR ANY
OTHER INFORMATION FURNISHED BY OR IN CONNECTION WITH THIS AGREEMENT.
5.03 LICENSOR MAKES NO REPRESENTATION OR WARRANTY CONCERNING
THE LICENSED PRODUCTS HEREIN AND IN NO EVENT SHALL LICENSOR OR ANY
AFFILIATE OF LICENSOR BE LIABLE OR RESPONSIBLE TO LICENSEE FOR ANY
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES.
5.04 Without limiting the disclaimers set forth in
Sections 5.02 and 5.03, nothing in this Agreement shall be
construed as:
(a) a warranty or representation by LICENSOR as to the validity
or scope of any patent right included within the Licensed Patent
Rights;
(b) a warranty or representation by LICENSOR that anything made,
used or sold or otherwise disposed of by LICENSEE under this
Agreement is or will be free from infringement of patents of third
persons;
(c) a requirement or obligation that LICENSOR furnish to LICENSEE
any technical or manufacturing information concerning Licensed
Products, or any of the substance of pending patent applications;
(d) a grant by LICENSOR of any right to use in advertising,
publicity, or otherwise a trademark, trade name, image or likeness
of LICENSOR or its Affiliates, or any name, image or likeness of
their respective employees, officers, or the inventors of any of
the patents or patent applications included within the Licensed
Patent Rights;
(e) a representation or warranty by LICENSOR as to the
usefulness, fitness, merchantability or suitability of any
product to be manufactured sold or otherwise distributed by
LICENSEE or any Affiliate of LICENSEE.
5.05 Each of LICENSOR and LICENSEE represent that they have
respectively obtained all necessary corporate resolutions and have
full authority to enter into this Agreement.
ARTICLE VI - TRANSFERARILITY OF RIGHTS AND OBLIGATIONS
6.01 LICENSOR may assign any of its rights and obligations
hereunder, in whole or in part, without the xxxxx written consent
of LICENSEE.
6.02 LICENSEE may assign its rights and obligations under
this Agreement upon a sale of the entire cosmetic business of
LICENSEE upon prior written notice to LICENSOR specifying the
terms of such assignment, provided that said purchaser of
LICENSEE's entire cosmetic business is not an entity or an
affiliate of an entity that has received notice of infringement
of one or more of LICENSOR's patents. Any other assignment of
LICENSEE's rights and obligations under this Agreement shall be
void unless LICENSEE receives the prior written consent of
LICENSOR, which consent shall not be unreasonably withheld.
LICENSOR agrees to hold in strict confidence the identification
of any entity disclosed by licensee to LICENSOR pursuant to this
Section 6.02 until otherwise made public. Any attempt to
transfer, assign or sublicense which is not in accordance with
the terms of this Agreement shall be void.
6.03 The provisions of this Agreement shall be binding
upon and inure to the benefit of all successors and permitted
assigns of the parties hereto.
ARTICLE VII - TERMINATION FOR BREACH
7.01 Prior to the expiration of the term of this Agreement,
either party may, at its option, terminate this Agreement for a
material breach of this Agreement upon prior written notice to the
breaching party if the breaching party fails to cure such breach
within thirty (30) days of the written notice, provided however
that should any of the Licensed Patent Rights be finally
adjudicated to be invalid or unenforceable, and such adjudication
is not subject to further appeals, LICENSEE shall have the right
to terminate the portion of this Agreement relating to the patent
or patents adjudicated to be invalid or unenforceable.
7.02 LICENSEE may terminate this Agreement by written
notice to LICENSOR on or after the third (3RD) anniversary date
of this Agreement, provided however said termination shall not be
effective until two (2) years after the date of said written notice.
Notwithstanding the preceding sentence, in the event [DELETION],
LICENSEE shall have the right to terminate this Agreement by
written notice to LICENSOR, provided however that said termination
shall not be effective until one (1) year after the date of said
written notice. All terminations pursuant to this Section 7.02
are subject to Section 7.06 below.
7.03 In the event that LICENSEE shall become insolvent; be
declared bankrupt; voluntarily file or have filed against it a
petition for bankruptcy or reorganization; enter into an
arrangement for the benefit of creditors; enter into a procedure
of winding up to dissolution; or should a trustee or receiver be
appointed for its respective business assets or operations, and
in the event that any of these events results in the liquidation
of LICENSEE, LICENSOR may terminate this Agreement and the license
granted hereby, upon the liquidation of LICENSEE. LICENSOR shall
have no right to terminate unless and until any above-enumerated
event results in a liquidation of LICENSEE.
7.04 Under no circumstances (including, without
limitation, a termination for any reason whatsoever) shall
LICENSOR be obligated to refund any payments theretofore made
by LICENSEE hereunder, provided however that LICENSEE shall be
entitled to a credit on future royalties due for any inadvertent
overpayment demonstrated to the reasonable satisfaction of LICENSOR.
7.05 Except as otherwise specifically provided herein,
expiration or termination of this Agreement and of the license
granted hereby for any reason shall be without prejudice to:
(a) the right of LICENSOR (i) to receive all payments accrued and
unpaid as of the effective date of such termination; and
(b) any other rights, remedies or obligations which LICENSOR may
then or thereafter have under this Agreement or otherwise.
7.06 Upon the termination (but not expiration) of this
Agreement, LICENSEE and its Affiliates shall cease all use of those
portions of the Licensed Patent Rights that remain valid and
enforceable.
7.07 The provisions of Sections 7.02 through Section 7.06
shall survive termination or expiration of this Agreement.
ARTICLE VIII - MARKINGS
8.01 LICENSEE agrees to, and to cause Affiliates of
LICENSEE to, xxxx all Licensed Products sold under this Agreement
with the number of at least one of the Licensed Patents on either:
(1) the product container; (2) the product carton; or (3) an
insert accompanying the product, and with such additional legends,
markings and notices as may be required by any law o[ regulation
of any jurisdiction in the Territory or as LICENSOR may reasonably
specify for purposes of compliance with any such law or regulation.
LICENSOR, without further diligence, currently knows of no such
requirements under any law or regulation in the Territory. LICENSEE
and any Affiliate of LICENSEE shall respond to any request for
disclosure under 35 U.S.C. (s)287(b)(4)(B) by only notifying
LICENSOR of the request for disclosure and the identity of the
person or entity making such request for disclosure. Notwithstanding
anything contained in this Section 8.01 to the contrary, LICENSEE
shall be permitted to exhaust its existing stock of containers,
cartons and inserts for Licensed Products although such materials
do not include the marking required by this Section 8.01.
ARTICLE IX - INTEGRATION; AMENDMENT
9.01 This Agreement represents the entire understanding
between the parties, and supersedes all prior or contemporaneous
discussions, proposals, negotiations, understandings and other
agreements, express or implied, between LICENSOR and LICENSEE with
respect to the subject matter of this Agreement, and there are no
representations, promises, conditions, provisions or terms, whether
written or oral, with respect thereto, other than those specifically
set forth in this Agreement.
9.02 No provision in this Agreement may be amended, altered,
modified, discharged or terminated, except by a writing signed by a
duly authorized representative of LICENSOR and LICENSEE.
ARTICLE X - INDEMNIFICATION
10.1 LICENSEE and Affiliates of LICENSEE operating under
this Agreement pursuant to Section 3.02 hereof shall jointly and
severally defend, indemnify and hold harmless LICENSOR and the
Affiliates of LICENSOR, and the officers, agents and employees
of LICENSOR and its Affiliates, and the inventors (collectively
the "Indemnified Parties") from and against any and all
liabilities, damages, losses, claims, suits, proceedings, demands,
recovery, costs and expenses (including, without limitation, the
fees and expenses of counsel, litigation expenses, and court costs)
which arise out of or relate to, or are alleged to arise out of or
relate to: any claim against LICENSOR for personal injury, death
or property damage which arise out of or relate to or are alleged
to arise out of or relate to the manufacture, distribution, sale
or use of products manufactured, sold or otherwise distributed by
LICENSEE or any Affiliate of LICENSEE.
10.2 The indemnity obligations of LICENSEE and the
Affiliates of LICENSEE under this Agreement shall survive the
termination or expiration of this Agreement and of the licenses
granted pursuant to this Agreement in order to indemnify and hold
harmless the Indemnified Parties (as defined in Section 10.01)
with respect to any claims for which the Indemnified Parties are
entitled to indemnification, irrespective of whether any such
claim arose prior or subsequent to the effective date of
termination or expiration.
ARTICLE XI - PRESS RELEASES AND PUBLICITY
11.01 Neither LICENSOR nor LICENSEE shall issue a press
release or public announcement concerning, or otherwise disclose,
the terms of this Agreement without the prior specific written
consent of the other party, which consent shall not be unreasonably
withheld. Notwithstanding the preceding sentence LICENSOR and/or
LICENSEE may disclose in a press release, to potential licensees,
or otherwise, the fact that this Agreement has been executed and
entered into on mutually agreeable terms without disclosing the
amount of the payments, the royalty rates hereunder or any of the
other specific financial terms of this Agreement.
11.02 Notwithstanding Section 11.01, LICENSOR or
LICENSEE may disclose the terms of this Agreement in response
to: (a) an order from a court or governmental agency; (b) in
response to a request by a party in litigation, provided attempt
has been made to have an appropriate protective order entered;
(c) to a potential licensee of the Licensed Patent Rights
hereunder, provided an appropriate confidentiality agreement or
protective order is entered into; (d) if such disclosure is
necessary to comply with any other laws or regulations applicable
to LICENSOR or LICENSEE; or (e) as a result of the reporting
requirements for a public company imposed by the Securities and
Exchange Commission or other similar governmental or administrative
requirements.
ARTICLE XII - NOTICES
12.01 It will be a sufficient giving of any notice,
request, report, statement, disclosure, or other communication
hereunder, to LICENSOR or to LICENSEE, if the party giving it
deposits a copy thereof in a post office in a registered or
certified envelope, postage prepaid, or with overnight courier,
prepaid, receipt requested, addressed to the other party at its
address set forth below or at any other address the other party
may hereafter designate in writing in accordance with the
provisions hereof. The payment required by Section 4.01 of this
Agreement shall be wired to the trustee account of XxXxxxxx &
Associates as trustee for LICENSOR. Unless otherwise specified
in this Agreement or otherwise designated in writing, royalty
payments to be made pursuant to Section 4.03 of this Agreement
will be wired to the bank account of LICENSOR as requested by
LICENSOR. The respective addresses for the parties are:
If to LICENSEE: NEOTERIC COSMETICS, INC.
0000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: President
If to LICENSOR: TRISTRATA TECHNOLOGY INCORPORATED
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000, X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
With copies to: TRISTRATA, INC.
0 Xxxxxxxx Xxx
Xxxxxxxxx, XX 00000
Attention: President
XxXXXXXX & ASSOCIATES
Xxx Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxxx, Esq.
Notice to LICENSEE shall be deemed notice to each Affiliate
of LICENSEE for all purposes, and LICENSOR shall not be required
to give any separate notice to any Affiliate of LICENSEE.
ARTICLE XIII - APPLICABLE LAW AND JURISDICTION
13.01 All matters affecting the interpretation
validity, and performance of this Agreement shall be governed by
the laws of the State of Delaware without regard to its conflict
of law principles.
13.02 All disputes and controversies arising out of
or relating to this Agreement and the parties' respective rights
and obligations hereunder shall be settled by binding arbitration
in accordance with the Commercial Arbitration Rules then pertaining
of the American Arbitration Association. The location of the
arbitration hearings shall be in New York, NY and the arbitration
shall be administered by the New York office of the American
Arbitration Association. Any award issued as the result of such
arbitration may be entered in any federal or state court having
jurisdiction.
Each of the Affiliates of LICENSEE shall be bound by
the provisions of this Section 13.02.
13.03 In any action commenced to enforce this Agreement
or as a result of a breach of this Agreement, the prevailing party
in such action shall be entitled to recover the cost of such action,
including reasonable attorneys' fees, incurred as a result of the
action to enforce and/or remedy the breach of this Agreement.
ARTICLE XIV - MISCELLANEOUS
14.01 (a) If any provision of this Agreement or the
application of any provision of this Agreement to any person or
under any circumstance shall be held to be invalid, unenforceable
or in conflict with the law of any jurisdiction, the validity and
enforceability of the remaining provisions and the application
thereof to any another person or under any other circumstance
shall not be affected by such holding. (b) Any provision of this
Agreement that is held to be invalid or unenforceable by a court
of competent jurisdiction in any country in the Territory shall,
as to such holding, be applicable only to that provision and only
in that country.
14.02 The waiver by either party, whether express or
implied, of any provision of this Agreement, or of any breach or
default by the other party, shall not be construed to be a
continuing waiver of such provision or of any succeeding breach or
default, or a waiver of any other provision of this Agreement.
14.03 Nothing contained in this Agreement shall be
construed to constitute or imply a joint venture, partnership, or
principal-agent relationship between LICENSOR and LICENSEE. Neither
party by virtue of this Agreement shall have any right, power or
authority to act or create any obligation, express or implied, on
behalf of the other party. Neither LICENSEE, nor any Affiliate
of LICENSEE, nor any of the employees of LICENSEE or of any
Affiliate of LICENSEE shall in any manner be deemed an employee
or an agent of LICENSOR for any purpose whatsoever.
14.04 The provisions of this Agreement are solely for
the benefit of LICENSOR and LICENSEE, their authorized Affiliates,
and their permitted successors and assigns (as defined herein),
and no such provision shall be construed or applied to confer any
rights or benefits on any other person.
14.05 This Agreement may be simultaneously executed in
several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument. Xxxx
parties hereto may sign the same counterpart or each party hereto
may sign a separate counterpart of this Agreement.
14.06 Upon the execution and delivery of this License
Agreement to LICENSOR by LICENSEE and LICENSOR's receipt from
LICENSEE of the payment required by Section 4.01, LICENSOR shall
cause the Delaware Litigation to be dismissed as against LICENSEE,
with prejudice, as soon as practicable, and LICENSEE shall cause
its counterclaims against LICENSOR to be dismissed, with
prejudice, as soon as practicable.
14.07 Article, section and paragraph headings in this
Agreement are for reference purposes only arid shall not in any
way affect the construction or interpretation of any provision of
this Agreement.
IN WITNESS WHEREOF, the respective parties, intending to be
legally bound, specifically acknowledge that they have obtained
any and all necessary corporate resolutions and authority to enter
into this License Agreement, and have duly executed this Agreement
as of the date first written above.
LICENSOR LICENSEE
TRISTRATA TECHNOLOGY, INC. NEOTERIC COSMETICS, INC.
By /s/ Xxxxxx X. XxxXxxxx By /s/ Xxxx Xxxxxxxxx
Title President Title President and C.E.O.
Dated: December 7, 2000 Dated: November 22, 2000
Attest: /s/ Xxxxxxx Xxxx Attest: /s/ Xxxxxxx X. Xxxxxxxx
