CONTRACTOR LICENSE AGREEMENT
This CONTRACTOR LICENSE AGREEMENT is made and entered into as of the
12th day of July 1995 by and between ULTRALINER, INC., a corporation
organized and existing under the laws of the State of Alabama (hereinafter
referred to as the "Licensor"), and Xxxxxxx X. Xxxxxx, (hereinafter referred
to as the "Contractor").
RECITALS:
WHEREAS, the Licensor has conducted research and development with
respect to certain methods, apparatus and materials used in the
rehabilitation of water and sewer pipelines by the insertion of a folded PVC
alloy pipe liner into the pipeline to be rehabilitated; and
WHEREAS, the foregoing research and development has resulted in
Substantial and valuable know-how, inventions and techniques proprietary to
the Licensor, and the possession by the Licensor of valuable information with
respect thereto; and
WHEREAS, the Contractor is desirous of gaining knowledge of such
inventions, know-how, techniques, and information and an exclusive right and
license within and throughout the Territory to use the same together with any
Patent Rights, Trademark Rights, and Copyrights relating thereto;
NOW THEREFORE, in consideration of these recitals and the mutual
covenants and undertakings set forth herein, the parties hereto do enter into
this agreement.
ARTICLE I - DEFINITIONS
As employed herein:
1.01 "Affiliate" shall mean any person or entity controlling,
controlled by or under common control with the person or entity referenced.
1.02 "Apparatus" shall mean and include, but not be limited to, any
and all tools, equipment, instruments, machines, and devices, other than the
Materials, whether patented or unpatented, developed for use in the practice
of the Subject Matter.
1.03 "Change in Control" shall mean a change in control of the
Contractor occurring after the date of execution of this Agreement of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or in response to any similar item on any
similar schedule or form) promulgated under the Securities Exchange Act of
1914, whether or not the Contractor is then subject to such reporting
requirement; provided, however, that, without limitation, such a Change in
Control shall be deemed to have occurred if any "person" (as defined in Rule
13d-3 under said Act), directly or indirectly, of more than 50% of the out-
standing shares of any class or series of securities entitled to elect more
than one-half of the board of directors or other governing body of the
Contractor.
1.04 "Commencement Date" means the first day when the Products are
received from the manufacturer.
1.05 "Confidential Material" shall mean the information furnished to a
Receiving Party, whether before or after the date hereof, by a Disclosing
Party, or acquired, received, developed or learned by a Receiving Party in
the course of its relations with a Disclosing Party, or relating to the
Subject Matter, the Know-How, the Copyrights or the proprietary plans,
policies, business or affairs of a Disclosing Party, including, without
limitation, data, drawings, materials and other communications concerning any
manufacturing or production or other process or any research and development
or marketing and/or sales plans or results related to the business of a
Disclosing Party; provided, however, that the term "Confidential Material"
shall not include information which: (i) becomes or has become generally
available to the public other than as a result of a disclosure by a Receiving
Party, (ii) was available to a Receiving Party on a non-confidential basis
prior to its disclosure to the Receiving Party by a Disclosing Party, or
(iii) becomes available to a Receiving Party on a non-confidential basis from
a source other than a Disclosing Party, provided that such source is not
bound by a confidentiality agreement with a Disclosing Party.
1.06 "Contract Year" means the calendar year with the exception of the
first year, which shall commence on July 11, 1995, and shall end on December
31, 1996.
1.07 "Contractor" means Unknown Entity or Person.
1.08 "Copyrights" shall mean and include any and all copyrights at
common and/or statutory law within the Territory which relate to plans,
brochures, instructions or other means of expression, including, but not
limited to, photographs, software, firmware, diagrams and other visual
presentations, having to do with the Subject Matter or useful in connection
with the commercialization thereof, which the Licensor has, or hereinafter
acquires the right to license others.
1.09 "Cross-over Payment" shall mean the amounts, payable by the
Contractor to the Licensor under Sections 3.03 and 3.04 hereof, at the times
hereinafter set forth, equivalent to twenty-five percent (25%) of the Gross
Product Price of all ULTRALINER, INC. materials shipped outside of the
Territory.
1.10 "Customer(s)" means any public, private, corporate or other legal
entity that has been contacted by Contractor, has expressed an interest in
the System, Process or Know-how, or that has utilized or benefitted from the
use of the System, Process or Know-how.
1.11 "Disclosing Party" shall mean a party hereto, together with its
Affiliates and their respective officers, directors, employees, agents and
representatives, disclosing Confidential Material.
1.12 "Effective Date" means the date of execution of this Agreement.
1.13 "Gross Product Price" shall mean the price published by Licensor
from time-to-time for Product.
1.14 "Know-how" means any and all most up-to-date confidential,
valuable and proprietary information, whether technical, economic or
commercial experiences, operating and/or executing techniques and other
knowledge and all physical matters such as drawings, specifications,
computations, analyses, data, designs, pipe lining installation procedures
and the like relating to or in respect of the Process, Equipment, Tools and
Material herein defined which are substantially or relevant necessary to
enable the Contractor to practice the Process hereinafter defined properly
and efficiently to a standard and quality similar to the standard and quality
of the internal pipe lining specified by the Licensor and which Licensor now
possesses or may possess hereafter during the term of this Agreement.
1.15 "Licensor" means ULTRALINER, INC. a corporation created under the
laws of the State of Alabama, United States of America.
1.16 "License Fee" shall mean the non-refundable amount as set forth
under Section 3.02 hereof, payable by the Contractor to the Licensor upon the
execution and delivery of this agreement.
1.17 "Materials" shall mean and include any and all compositions,
products, components and other materials, without limitation, whether
patented or unpatented, developed or useD in the practice of the Subject
Matter and supplied to the Contractor.
1.18 "Patent Rights" shall mean and include all patents and patent
applications relating to the Subject Matter whether owned now or hereafter
acquired or controlled by the Licensor.
1.19 "Performance Objectives" shall mean the minimum lengths of
pipeline, identified and segregated by reference to size, proposed to be
rehabilitated by the Contractor during the Term, as determined pursuant to
Section 4.03 hereof.
1.20 "Permitted Uses" shall mean the application, in accordance with
the specifications of the Licensor, of Product in connection with the repair,
rehabilitation or reconstruction of water and sewer pipelines. The Licensor
and the Contractor hereby acknowledge and agree that, notwithstanding any
other provision of this Agreement, neither the right and license granted
under Section 2.01 hereof, nor the Permitted Uses, shall extend to any
utilization of the Know-how or the Patent Rights or practice of any
inventions relating to the Subject Matter in the manufacture of any
Materials.
1.21 "Process" means the deformed pipe lining technology and process
developed by ULTRALINER, INC. for the restoration of repair and
rehabilitation of water and sewer (sewerage & storm) pipelines through the
application of pipe lining material manufactured of PVC Alloy materials with
all its modifications. The words Process or ULTRALINER PVC ALLOY PIPELINER
SYSTEMS (Trade Xxxx) shall also mean and include any and all methods, Know-
how, methodology and technology which have application to the System and are
deemed proprietary and confidential by Licensor.
1.22 "Product" means deformed pipe lining made or designed in
accordance with the system.
1.23 "Project(s)" means pipe restoration construction projects where
the System, Process or Know-how are, or will be used.
1.24 "System" means ULTRALINER PVC ALLOY (Trade Xxxx) deformed pipe
lining using the Process developed by ULTRALINER, INC.
1.25 "Receiving Party" shall mean a party hereto, together with its
Affiliates and their respective officers, directors, employees, agents and
representatives, receiving Confidential Material.
1.26 "Restoration" means lining and reopening of pipe at lateral by
remote control internal cutter.
1.27 "Subject Matter" shall mean and include all presently existing
and subsequently acquired methods, Apparatus and Materials used in the
repair, rehabilitation or reconstruction of water and sewer pipelines by
using the Product.
1.28 "Term" shall mean the period commencing on the date hereof and
shall continue for 5 years or the expiration of the last extension, unless
sooner terminated as hereinafter provided. For the purposes of the agreement
between these parties, the Contractor is hereby granted the right to extend
the term for 5 additional years, on the terms and conditions set out in
ARTICLE II hereof.
1.29 "Territory" shall mean that geographical area lying within the
political boundaries of the state of FLORIDA, with the exception of that part
of the State that is West of the Apalachicola river.
1.30 "Tools" means any and all special equipment, apparatus or
materials used in the Process.
1.31 "Trademark" means ULTRALINER and ULTRALINER PVC ALLOY PIPELINER
and ULTRALINER PVC ALLOY PIPELINER SYSTEM and such other trademarks as may be
adopted by Licensor.
1.32 "Trademark Rights" means certain trademarks, service marks and
trade names including, without limitation, the Trademark, which have been
adopted and used by ULTRALINER, INC. and which have been promoted and are
becoming favorably known to and recognized by the pipe lining industry.
1.33 "ULTRALINER PVC ALLOY PIPELINER SYSTEM (Trade Xxxx)" means a
deformed pipe lining system developed by ULTRALINER, INC. for installation in
accordance with the specifications of the Process.
ARTICLE II - GRANT OF LICENSE, TERM AND EXTENSION
2.01 Grant of License.
(a) In consideration of the License Fee and the other covenants
and agreements of the Contractor hereunder, the Licensor hereby grants the
Contractor an exclusive right and license within and throughout the Territory
during the Term:
(i) to utilize in the Territory, the Know-how,
Equipment, Materials; Tools and the Products to practice the
inventions of the Patent Rights relating to the Subject Matter,
and to sell and to install products incorporating the Subject
Matter to customers of its choice, in each case solely in and for
the Permitted Uses but only by Contractor through Contractor's
direct employees and not through or by any other entity (such as
non-owned installers), unless expressly authorized by Licensor;
(ii) to use any and all Copyrights only as an adjunct to
the practice of such methods and the commercialization thereof as
permitted by this Agreement; and
(iii) subject to Sections 2.02 and 4.04 hereof, to use and
display ULTRALINER PVC ALLOY PIPELINER (Trade Xxxx) and
ULTRALINER PVC ALLOY PIPELINER SYSTEM (Trade Xxxx) as a service
xxxx and trademark in connection with each and every aspect of
the commercial exploitation of the Subject Matter in the
Permitted Uses.
(b) The exclusivity of the license is subject to and limited by
the right heretofore granted by Licensor to Xxxx Xxxxxxx, personally, acting
solely through his company, as long as he owns 100% of Xxxxxxx Construction
Company, to sell and install Product within the Territory.
(c) In the event the Licensor, in its sole but reasonable
discretion, determines that the Subject Matter may be commercialized in the
Territory in connection with the repair, rehabilitation or reconstruction of
pipelines and other passageways, the Licensor and the Contractor may agree to
enter into an agreement to license Contractor to sell and install the Subject
Matter for such uses. Without this subsequent agreement, the Licensor and
Contractor hereby agree and acknowledge that, notwithstanding any other
provision of this Agreement, neither the right and license granted under
Section 2.01 hereof, nor the Permitted uses, shall extend to any utilization
of the Know-how or the Patent Rights or practice of any inventions relating
to the Subject Matter in the use, manufacture or promotion of any materials.
Notwithstanding any other provision contained in this paragraph (b),
the Licensor shall not be obligated to commercialize the Subject Matter in
any application described under this paragraph.
2.02 Use of Service Xxxx and Trademark. The Contractor hereby
acknowledges that, except as described in 2.01(b), only the Licensor or its
designated licensees have the right within the Territory to use the name
ULTRALINER PVC ALLOY PIPELINES (Trade Xxxx) and ULTRALINER PVC ALLOY
PIPELINER SYSTEM (Trade Xxxx) as a service xxxx or trademark, and such other
trademarks, service marks, trade names and copyrights as may presently exist
or be acquired by the Licensor and licensed for use by the Contractor, along
with all ancillary signs, symbols or other indicia used in connection or
conjunction with said marks. The Contractor further acknowledges that
valuable goodwill is attached to all such trademarks, service marks, trade
names, and copyrights, and that it will use same in the manner and to the
extent specifically licensed by this Agreement. The Licensor, in its sole
discretion, has the right itself to operate businesses under said trademarks,
service marks, trade names and copyrights, and (subject to paragraph (a) (b)
and (c) of Section 2.01 hereof) to grant other licenses in, to and under such
trademarks, service marks, trade names and copyrights, on any terms the
Licensor deems fit; except for the Permitted Uses in the Territory (and
subject, in all respects, to the final sentence of Section 2.03). The
Contractor expressly recognizes that any and all goodwill associated with
said trademarks, service marks, trade names, and copyrights, including any
goodwill which might be deemed to have arisen through the Contractor's
activities, inures directly and exclusively to the benefit of the Licensor,
except as otherwise provided herein. The Licensor covenants that any
subsequent license to a third party (which may be an Affiliate of the
Licensor) for ULTRALINER PVC ALLOY PIPELINER (Trade Xxxx) application of the
Subject Matter in the Territory other than in the Permitted Uses shall
provide that any trademarks, service marks, tradenames and copyright covered
by such license (which may include ULTRALINER PVC ALLOY PIPELINER (Trade
Xxxx)) shall be adequately distinctive in form from the trademarks, service
marks, tradenames and copyrights licensed hereunder.
(b) All Apparatus, Materials, letterheads, invoices,
advertising signs of all types and printed material utilized by the
Contractor in the exercise of its rights under this Agreement shall bear
appropriate insignia acknowledging such products, Materials or Apparatus as
under exclusive license from the Licensor.
2.03 Rights Reserved to Licensor. It is specifically understood and
agreed that the grant of this exclusive license for the Territory during the
Term is based upon the size and ability of the Contractor to provide and/or
exploit the demand for the Subject Matter within the Territory in the
Permitted Uses, and the nature and scope of the Territory has been determined
accordingly. The Contractor further understands and agrees that the Licensor
retains the right to grant exclusive licenses to other Contractors in other
territories and to grant exclusive licenses to other parties in the Territory
to utilize the Subject Matter for purposes other than in the Permitted Uses.
The Licensor reserves the right to vary or otherwise modify the nature and
scope of subsequent licenses granted to subsequent licensees to accommodate
specific applications, territories, population considerations and other
factors. The Contractor acknowledges and agrees that the Licensor shall not
be obligated to prevent other of its licensees for the Permitted Uses from
exploiting the Subject Matter in the Territory in the Permitted Uses.
2.04 TERM AND EXTENSIONS.
(a) The Term of this Agreement shall commence on the date of
this set out in the opening paragraph hereof and shall terminate at midnight
on the 31st day of July, 2001, unless the termination date is extended in
accordance with the following paragraph.
(b) The Contractor is granted the right to extend the
termination date for five (5) years provided that the Contractor is not in
default on any of its obligations to Licensor under the terms hereof or
created and the financial condition of the Contractor is adequate to allow
Contractor to maintain a bonding capacity to perform its obligations
hereunder during the extended term.
ARTICLE III - LICENSE FEE AND CROSS-OVER PAYMENT
3.01 ADEQUACY OF CONSIDERATION. It is specifically understood and
agreed that the License Fee, and the other terms and conditions hereinafter
described shall be deemed adequate consideration for the exclusive license
defined in Article II above relating to the Territory during the Term.
3.02 License Fee. Concurrently with the execution and delivery of
this Agreement, the Contractor shall pay to the Licensor the amount of ONE
HUNDRED THOUSAND DOLLARS ($100,000.00), less the previously paid non-
refundable xxxxxxx money of TEN THOUSAND DOLLARS ($10,000.00) and an
additional ONE HUNDRED THOUSAND DOLLARS ($100,000.00) payable in payments not
less than TWENTY FIVE THOUSAND DOLLARS ($25,000.00) will be due each quarter
of 1996 and 1997 commencing July 1, 1996 and the final payment April 1, 1997,
which shall not be refundable in part or whole at any time after execution of
this Agreement.
3.03 PURCHASES. All orders by Contractor for Product shall be only on
the terms set out in the Licensor's written acceptance of Contractor's
written order.
3.04 Cross-Over Payment.
(a) The Contractor shall, during the Term, exploit the Subject
Matter in the Territory in the Permitted Uses for the mutual benefit of the
Contractor, the Licensor, and the customers and potential customers of the
Contractor, in order to fulfill the Contractor's obligations under Section
4.03 hereof, and the Contractor shall ensure that the customers of the
Contractor are provided such information, warranties, and services by the
Contractor as shall assure that such obligations are met. In so exploiting
the Subject Matter in the Permitted Uses, the Contractor shall be required to
make significant financial investments, necessary for market development, in
capital and equipment, in marketing and promotion, and in providing
information and services.
(b) In order to compensate the Licensor's licensees in other
territories for the making of such investments, and to induce them to do so,
should the Contractor seek to exploit the Subject Matter outside of the
Territory in any of the Permitted Uses, whether or not in an area where an
exclusive license for such Permitted Uses has been granted by the Licensor,
the Contractor shall make an immediate Cross-Over Payment of twenty-five
percent (25%) of the Gross Product Price of all Product so exploited outside
the Territory. All Cross-Over Payments shall be paid by the Contractor to
the Licensor, as agent for the Contractor, who shall in turn promptly pay
twenty percent (20%) of such Cross-Over Payment to the Licensee in whose
territory the installation was performed, if any. Should the Contractor fail
to make a Cross-Over Payment to the Licensor within the time applicable for
payment, no further Product will be shipped to the Cross-Over Contractor and
such failure shall be a material breach of this Agreement; it being
understood and agreed that nothing contained in this Agreement shall obligate
the Licensor to take any collection action with respect to any Cross-Over
Payment.
(c) All licenses governing the commercialization of the Subject
Matter for the Permitted Uses within the United States of America shall
provide for a similar cross-over payment, in the amount of twenty-five
percent (25%) of the Gross Product Price for installations utilizing the
Subject Matter for any of the Permitted Uses within the Territory, to be paid
by the Licensee who commits the cross-over thereunder to the Licensor, as
agent for such licensee, who shall in turn promptly pay such cross-over
payment to the Contractor into whose Territory the cross-over has been
committed, if any, less five percent (5%) deduction.
(d) Notwithstanding any other provision contained in this
Agreement, any utilization of the Subject Matter within the Territory for the
Permitted Uses by another licensee of the Licensor shall be attributable to
the Contractor for purposes of determining achievement by the Contractor of
its Performance Objectives.
(e) In addition to all other obligations of the Contractor
hereinafter set forth, in order to assure top product quality and to meet all
products liability and health and safety requirements it shall be the
responsibility of the Contractor, should it perform work outside the
Territory to assure that satisfactory arrangements are made to provide full
and complete after-sales service and warranty protection for the job
involved, including specifically, but not limited to, the ability to rapidly
deploy a repair crew to the site of any such job.
3.05 Reports and Payments. The Contractor shall submit and deliver to
the Licensor separate written reports at the times hereinafter set forth and
in such form as may be reasonably required and as may be amended, from time
to time, by the Licensor as follows:
(a) No later than one month prior to the commencement of each
calendar quarter of the Term, the Contractor shall deliver to the Licensor a
report containing the Contractor's forecast of product requirements, in
linear feet by diameter, for each month of the immediately following calendar
quarter and each of the next two (2) calendar quarters.
(b) Within three (3) weeks after the end of each calendar
quarter of the Term, the Contractor shall deliver to the Licensor a report of
work performed by the Contractor utilizing the Subject Matter for the
Permitted Uses during such calendar quarter, whether or not invoiced or paid,
the total amount invoiced, the Gross Contract Price and terms for the work
performed, and any Cross-Over Payment due to the Licensor, as agent for the
Contractor, and such other information as the Licensor may reasonably require
to enable the Licensor to evaluate computation of any Cross-Over Payments and
the Contractor's achievement of the Performance Objectives. Such report
shall be accompanied by payment in full of all Cross-over Payments not paid
and due the Licensor, as agent for the Contractor, with respect to such
calendar quarter.
3.06 Default in Payment. Should the Contractor fail to pay the
License Fee or any Cross-Over Payment as aforesaid, or fail to pay for
Materials, to the Licensor, arising from or in connection with this
Agreement, when validly due, or fail to deliver any report due under Section
3.04 hereof, this Agreement shall, pursuant to Article VI hereof (and
subject, without limitation, to the applicable notice and cure periods
therein) terminate.
3.07 PLACE AND METHOD OF PAYMENT. All payments required under this
Agreement shall be made in Oxford, Alabama or such other location within the
United States as shall be identified by the Licensor. Payments are to be
paid in U.S. Dollars or Gold.
ARTICLE IV - GENERAL COVENANTS
4.01 Information Sharing. With a view to avoiding unnecessary
duplication of research and development work in relation to the System and/or
the Products as far as possible, both the Licensor and the Contractor shall
have the right to discuss with each other fully and openly at half-year
intervals relevant research and development projects which they have in hand
or which are planned.
4.02 Financial Covenants. To assure the financial ability of the
Contractor to meet obligations hereunder, the Contractor shall provide a
semi-annual balance sheet to the Licensor with an officer's certificate,
notarized, certifying that such balance sheet has been prepared in accordance
with generally accepted accounting principles applied consistently with the
prior six months and presents fairly the financial position of such party for
the six months then ended. The Contractor's obligation under this Section
4.02 shall be deemed met in the event guaranteed by an Affiliate of the
Contractor which itself also complies with this Section 4.02.
4.03 Performance Objectives. Performance objectives are the minimum
quantities of Product that the Contractor is required to order from Licensor
within the time period specified. The parties recognize and agree that the
covenant of the Contractor that it will achieve these Performance Objectives
is a material term of this agreement and its representation that it has and
will dedicate the necessary financial and manpower resources, to this
specific obligation, as well as its other duties hereunder, have been and
will continue to be relied upon by Licensor in entering into this agreement
and performing thereunder.
(a) For the first contract year, Contractor shall not be
assigned any performance objective.
(b) For the contract year beginning Dec. 1, 1996, Contractor
shall order (only valid order is that accepted and paid for) not less than
Thirty-five thousand feet (35,000) of Product.
(c) For Contract Years subsequent to 1996, Performance
Objectives shall be established by the Licensor and Contractor taking into
consideration the following factors:
(i) reconstruction budget line items of major
municipalities in the territory;
(ii) major projects planned in the Territory for the
performance period;
(iii) the Contractor's actual performance in prior years;
(iv) distorting impact of major programs, Acts of God and
events beyond the Contractor's control in prior year's performance;
(v) territory population;
(vi) population of realistic potential markets in the
territory;
(vii) Contractor forecasts;
(viii)Contractor backlogs;
(ix) sales activities of competitive methods and volume
of work lost or delayed due to competitor's activities;
(x) political and economic conditions in the territory;
(xi) new markets and applications and diameters for which
products will be available and compatible;
(xii) environmental concerns;
(xiii)product availability and price; and
(xiv) maintenance of product exclusivity.
(d) Contractor shall develop and provide Licensor such
information as is described above and such other data and information which
the Contractor believes to be pertinent and relevant to establishment of
Performance Objectives.
(e) Within 90 days prior to the end of a Contract Year, and
following good faith negotiations with the Contractor on the basis of the
foregoing criteria, Performance Objectives applicable to, shall be announced
by Licensor and Contractor as agreed upon, for next Contract Year.
(f) Commencing March 31, 1997, and on a quarterly basis
thereafter the Contractor and the Licensor shall consult to determine the
Contractor's progress during the preceding calendar quarter in achieving the
Performance objectives then applicable. Licensor shall consider the criteria
set out in the foregoing section and the following criteria when conducting
its evaluation of Contractor's performance to determine if the Contractor's
failure to achieve its the Performance Objectives:
(i) major governmental agency or industrial buyer
decisions relating to the Subject Matter, as well as delays in releasing
contracts for bids;
(ii) Contractor's overall satisfactory business
performance in all diameters;
(iii) competitor's adverse activities in the Territory;
(iv) Contractor's long-term investment in business under
the License, both capital and human resources;
(v) sales activity and effort to promote the product.
(g) The Licensor hereby agrees that, subject to the notices and
for the period hereinafter specified, the Contractor shall not be deemed to
have failed to achieve any Performance Objective for a particular year if
prevented by a material failure of performance by the Licensor that is not
caused by the fault of the Contractor (including those excuses for
nonperformance as are herein afforded to Contractor); by federal, state or
municipal action or regulations; by strikes or other labor trouble or
stoppage; by fire, damage to, or destruction in whole or in part of
merchandise or plant; by lack of, or inability to obtain, raw materials,
labor, fuel or supplies; by war, riot or revolution; by Acts of God; by
perils of the sea; by shortage of cars; or by any other unavoidable cause
beyond the control of Contractor, in each case, under this sentence, except
if caused by the negligence or design of the Contractor. In the occurrence
of any such event, and after receiving written notice from the Contractor
thereof, Licensor shall, for as long as such event shall continue to prevent
such achievement, reduce any Performance Objective so affected by a
proportion that reasonably accounts for such event. The Contractor shall
promptly deliver written notice to the Licensor that such event shall have
ceased.
(h) The parties understand and agree that the provisions of
this Section 4.03 shall in no manner operate to limit any obligation of the
Contractor contained elsewhere in this Agreement.
(i) It is specifically understood and agreed that nothing
herein provided shall be construed as requiring the Operator to operate in
accordance with any designated marketing plan or system, which, except for
the maintenance of high standards of quality with respect to the Subject
Matter and its usage, the exercise of diligence and the performance in
accordance with the terms and conditions hereof, are left to the
determination of the Operator.
4.04 Disclosure and Training. Promptly upon execution of this
Agreement, and continuing throughout the Term, the Licensor thereupon shall
fully disclose to the Contractor all Know-how, and any Patent Rights and
Copyrights, intended to be utilized in the practice of the methods of the
Subject Matter for the Permitted Uses. Promptly after the commencement of
the Term, the Contractor, at its expense, but with no fee or payment to the
Licensor, shall require its principal sales personnel to attend an
installation demonstration and training session conducted by the Licensor.
Further, promptly after the commencement of the Term (and in all events prior
to any application by the Contractor of the Subject Matter), the Contractor,
at its expense, shall require an adequate number of supervisory personnel who
will be involved in installations utilizing the Subject Matter to be trained
by the Licensor specifically in the utilization of the Subject Matter; and no
such installations shall be initiated by the Contractor unless and until such
supervisory personnel are certified by the Licensor as qualified to utilize
the Subject Matter for the Permitted Uses. The Licensor shall thereafter
provide an adequate continuing technical and engineering support capability
to support the efforts of the Contractor, the content, extent, and
frequency.of which shall be solely at the discretion of the Licensor; except
that the Licensor will conduct an annual training seminar with respect to
application of the Subject Matter in the Permitted Uses, and the Contractor
agrees to have, at its expense, at least one supervisory representative in
attendance. The Contractor shall not be obligated to pay any fees or other
charges to the Licensor in exchange for the foregoing training. At the
request of the Contractor and subject to availability, the Licensor will
provide a technician experienced in the operation of the Subject Matter to
assist and render advice to the Contractor subject to payment by the
Contractor of all reasonable direct traveling and hotel expenses and a
reasonable per diem rate which shall be agreed upon between the parties at a
location agreed upon by both parties.
4.05 Insurance. The Contractor agrees to procure at its expense, a
policy or policies of insurance from an insurance company or companies
reasonably satisfactory to the Licensor and Contractor's customers, providing
coverage for the operations of the Contractor, including product and
completed operations, with amounts not less than $1,000,000 single limit
liability for injury to persons and damage to property. The Contractor also
agrees to have the Licensor named as an additional named insured under the
above described policy or policies and to cause the Licensor to be furnished
with a Certificate of Insurance which shall contain a requirement that the
Licensor be notified 30 days prior to any cancellation or any reduction in
coverage or limits. The insurance requirements above shall commence prior to
the time the Contractor commences operations under this Agreement and shall
continue in force throughout the Term.
4.06 Taxes; Compliance with Laws. The Contractor shall promptly pay
when due all taxes and assessments against the premises or the equipment used
in connection with the Contractor's business, and all liens or encumbrances
of every kind or character created or placed upon or against any of said
property, and all accounts and other indebtedness of every kind incurred by
the Contractor in the conduct of said business, the failure to pay which
would have a materially adverse effect on the ability of the Contractor to
perform its obligations hereunder. The Contractor shall have the right to
contest the validity or amount of any assessment, tax, lien or encumbrance,
provided that the Contractor shall: (1) give the Licensor notice of its
intention to contest; (2) diligently prosecute such contest; and (3) at all
times effectively stay or prevent any official or judicial sale of such
property or any thereof by reason of the non-payment of any lien,
encumbrance, tax, or assessment. The Contractor shall comply with all
applicable federal, state, county and municipal laws and regulations, now in
effect or hereinafter enacted, including, without limitation, all
environmental laws and all occupational safety and health laws, the failure
to comply with which would have a materially adverse effect on the ability of
the Contractor to perform its obligations hereunder, and shall timely obtain
any and all permits, certificates, or licenses necessary for the full and
proper conduct of its business.
4.07 Standards and Inspection. The Contractor shall maintain a high
standard of quality in all installations made and in all other activities
under the Service Xxxx or Trademark. To ensure the maintenance of such
standards, the Licensor may periodically inspect the Contractor's practice of
the methods of the Subject Matter at the Licensor's own expense and without
unreasonable inconvenience to the Contractor. The Contractor shall cooperate
fully with the Licensor in any such inspections in its practices of the
methods of the Subject Matter made by the Licensor. At all times the
Contractor shall exert diligent effort to practice the methods and techniques
included in the Subject Matter in accordance with the best available
technical information and advice received from the Licensor. The Contractor
hereby agrees that failure by the Licensor to exercise any right of
inspection or any other right under this Section 4.08 shall not operate
subsequently to preclude exercise by the Licensor of this right, and that
failure of the Contractor to permit such inspections or to maintain such
standards shall constitute a material breach of this Agreement and shall form
the basis of termination hereof, but solely in accordance with the notice and
cure provisions of Article VI hereof.
ARTICLE V - IMPROVEMENTS; SECRECY
5.01 Commercialization of Improvements. The Contractor recognizes and
agrees that from time to time hereafter the Licensor may, in its discretion,
change or modify the Subject Matter and/or adopt and use new or modified
trade names, trademarks, service marks or copyrighted materials with respect
thereto, and that the Contractor, at the election of the Licensor, will
accept, use and display for the purpose of this Agreement any such changes
and such new or modified trade names, trademarks, servicemarks or copyrighted
materials, as if they were part of this Agreement at the time of execution
hereof. The Contractor shall furnish such cooperation as such changes or
modifications may reasonably require, and do so within a reasonable time.
5.02 Title to Improvements.
(a) The Contractor hereby assigns, and shall cause its
officers, directors, agents, employees and representatives to assign, to the
Licensor the entire right, title and interest in and to any and all
inventions, trade secrets, improvements, plans and specifications (i) which
the Contractor, or its officers, directors, agents, employees or
representatives, alone or in conjunction with others, may make, conceive or
develop during the Term; and (ii) which constitute or derive from the Subject
Matter. The Contractor further agrees that it will promptly disclose, and
cause its officers, directors, agents employees and representatives promptly
to disclose, fully to the Licensor the aforesaid inventions, trade secrets,
improvements, plans and specifications and will at any time render, and cause
its officers, directors, agents, employees and representatives to render, to
the Licensor such cooperation and assistance (excluding financial assistance)
as the latter may reasonably deem to be advisable in order to obtain
copyrights or patents, as the case may be, on or otherwise perfect or defend
the Licensor's rights in each such invention, trade secret, improvement, plan
or specification, including, but not limited to, the execution of any and all
applications for copyrights or patents, assignments of copyrights or patents
and other instruments in writing which the Licensor, its officers or
attorneys may deem necessary or desirable, and the aforesaid obligation shall
be binding on the assigns, executors, administrators and other legal
representatives of the Contractor.
(b) Without prejudice to any right or remedy available to the
Contractor against third parties, which shall be exercised in consultation
with and subject to the Licensor's approval, which approval shall not
unreasonably be withheld, the Contractor hereby constitutes and appoints the
Licensor the attorney for the Contractor, with full power of substitution,
for it and in its name and stead or otherwise, but at the sole expense and on
behalf of and for the benefit of the Licensor, to institute and prosecute
from time to time, any proceedings at law, in equity or otherwise, that the
Licensor may deem proper in order to assert or enforce any claim, right or
title of any kind in and to the inventions, trade secrets and improvements
described under paragraph (a) immediately preceding, to defend and compromise
any and all actions, suits or proceedings in respect of any said inventions,
trade secrets and improvements, and, generally to do any and all such acts
and things in relation thereto as the Licensor shall deem advisable,
including, but not limited to, the execution of any and all applications,
assignments and instruments contemplated under such paragraph. The
Contractor declares that the appointment hereby made and the powers hereby
granted are coupled with an interest and shall be irrevocable by the
undersigned.
(c) The Licensor hereby agrees that, during the Term, it shall
be obliged to disseminate at no charge to all of its licensees, for their
mutual benefit to be used subject to the terms of their respective license
agreements, such of its inventions, trade secrets, plans, specifications,
improvements or modifications which are necessary to utilize the System.
5.03 Secrecy. Each Receiving Party shall, and shall instruct all of
its officers, directors, employees, agents or representatives to, hold in
absolute secrecy and treat confidentially all Confidential Material of a
Disclosing Party, and not disclose, reproduce, publish, distribute or by any
other means disseminate, in whole or in part, any such Confidential Material,
except as shall be specifically necessary for the Receiving Party to disclose
such Confidential Material to its employees in order to exercise its rights
under this Agreement. Neither the Receiving Party nor any of its employees,
agents or representatives may in any manner use for its benefit or for the
benefit of others any such Confidential Material except as shall be
specifically necessary for the Receiving Party to exercise its rights
authorized under this Agreement.
5.04 Remedies.
(a) Without in any manner limiting the obligation of either
party to cause its officers, directors, agents, employees and representatives
to comply with the provisions of Section 5.02 and 5.03 hereof, as applicable,
each party shall cause each of its officers, directors and key employees to
execute an agreement in a form prescribed by Licensor and, except as set
forth in the next succeeding sentence, all other employees which have access
to Confidential Material or information constituting or derived from the
Subject Matter to execute an agreement in any form prescribed by Licensor.
(b) In view of the irreparable harm and damage which would be
incurred by a party in the event of any violation by the other party or any
of its officers, directors, employees, agents or representatives of any of
the provisions of Sections 5.02 or 5.03 hereof, as applicable, each party
hereby consents and agrees that, if it or any of its officers, directors,
employees, agents or representatives violate any such provision, the other
party shall be entitled to an injunction or similar equitable relief to be
issued by any court of competent jurisdiction restraining the said party and
its employees, agents and representatives from committing or continuing any
such violation.
(c) The provisions of Sections 5.02 and 5.03 and 5.04 shall, in
accordance with their respective terms, survive the Term and this Agreement,
notwithstanding any termination or expiration thereof. Without limiting the
generality of any other provision hereof, each party shall enforce the
provisions of such sections insofar as they relate to its employees, agents
and representatives; provided, however, that neither party shall be liable
for the acts of its employees, agents and representatives which are not
within the scope of their employment.
ARTICLE VI - TERMINATION
6.01 Termination by Contractor. The Contractor may terminate this
Agreement at any time by service of written notice to such effect on the
Licensor 30 days in advance of the effective date thereof and by complying
with the applicable terms and conditions of this Article VI. During such
period after notice but prior to actual termination, the Contractor shall not
bid or accept any additional jobs (except those outstanding bids with bid
bonds that have not been awarded) which will require the utilization of the
Subject Matter from the Licensor under the Patent Rights or the Know-How
without the written consent of the Licensor, which consent shall not
unreasonably be withheld.
6.02 Termination by Licensor.
(a) This Agreement and the rights of the Contractor hereunder
may be terminated by the Licensor in the event the Contractor:
(i) becomes insolvent or a petition in bankruptcy is
filed by or against the Contractor and not removed within 20 days thereafter,
or a receiver is appointed for the Contractor; or
(ii) utilizes the Subject Matter in any application
outside of the Permitted Uses; or
(iii) fails to achieve the Performance Objectives
described in Section 4.03 hereof in a particular Contract Year, without an
excuse provided by this agreement.
(iv) fails to pay when validly due any sum owed to
Licensor or any of its Affiliates arising from or in connection with this
Agreement and such failure shall continue for a period of 30 days after
written notice from the Licensor to the Contractor; or
(v) fails to perform any other material term or
condition of this Agreement and fails to correct the same within 30 days
after written notice from the Licensor to the Contractor, or if not
reasonably capable of correction within such period, fails to commence such
correction within such period and thereafter fails to diligently proceed to
make such correction; or
(vi) fails to submit and deliver to the Licensor any
written report required under paragraph (a) of Section 3.05 hereof when due
and such failure shall continue for a period of 30 days after written notice
from the Licensor to the Contractor.
(b) In the event the Contractor fails to pay the License Fee or
any Cross-Over Payment in accordance with Article III hereof, or fails to
provide any written report required under paragraph (b) of Section 3.05
hereof in accordance with such provision and, in the case of the first such
breach in any calendar year, such failure shall continue for a period of 30
days after written notice from the Licensor to the Contractor, then in any
such event, this Agreement shall automatically terminate.
(c) No termination under this Section 6.02 shall limit or
affect any other right or remedy of the Licensor, including the right to
damages resulting from the Contractor's breach.
6.03 Consequences of Expiration or Termination.
(a) Upon expiration or termination of this Agreement, the
Contractor shall promptly pay the Licensor all amounts then due under this
Agreement, terminate all use by it of any service xxxx, tradename, trademark,
certification xxxx or corporate name that includes any of the foregoing
words; avoid all subsequent use of all service marks, tradenames, trademarks,
certification marks or corporate names likely to be confused with ULTRALINER
as well as all stationery, invoices, signs or other visual devices displaying
or otherwise associated with ULTRALINER; terminate all use of the Subject
Matter and the Licensor's Confidential Material, as well as the use and sale
of any products under any Patent Rights or Copyrights or the Know-how; and
assign to the Licensor free of charge, any and all rights and claims to any
and all rights arising from the use of ULTRALINER, or any combination
involving ULTRALINER, the above mentioned Corporate rights in the Territory;
and return to the Licensor all Confidential Material in its possession, and
any copies which it has made of the same. Following termination, the
Contractor shall continue to be obligated to provide all after sales services
for which it has theretofore contracted, including the honoring of all
contract warranties. Should the Contractor fail to fulfill such obligations,
and should the Licensor, in its reasonable discretion after notice to the
Contractor, whether for reason of preserving product goodwill or otherwise,
choose to perform any such obligations (this paragraph in no way to be
construed as an assumption by the Licensor of any obligations for which it is
not specifically contractually responsible), then the Contractor shall
promptly reimburse the Licensor the reasonable charges issued by the Licensor
to the Contractor of performing such obligations of the Contractor. If the
Contractor is a corporation having the word ULTRALINER as a part of its
corporate name, the Contractor shall, within 60 days of termination, amend
its corporate name to remove the word ULTRALINER therefrom.
(b) Each party hereto shall promptly pay to the other party all
damages, costs and expenses, including reasonable attorney's fees, incurred
by such other party by reason of default on the part of such party hereto,
whether or not such default occurred prior to or subsequent to the
termination or expiration of this Agreement, and said sum shall include all
costs and expenses, including reasonable attorney's fees, incurred by such
other non-defaulting party in obtaining injunctive or other relief to enforce
the provisions of this Agreement. Notwithstanding the foregoing, in any
dispute under this agreement, the ultimate prevailing party shall be entitled
to recover from the other party its reasonable attorney's fees. No right or
remedy herein conferred upon or reserved to either party is exclusive of any
other right or remedy herein or by law or equity provided or permitted; but
each shall be cumulative of every right or remedy given hereunder. In
addition to whatever remedy or remedies a party may have by way of damages
for violation of the provisions of this Agreement and/or expiration or
termination of the same, such party shall also have the right to injunctive
relief to enforce the provisions of this Agreement.
(c) In the event of the termination of this Agreement by the
Licensor or Contractor as a consequence of any event described under sub-
paragraphs (i), (iii), or (vi) of Paragraph (a) of Section 6.02 or 6.01
hereof, the Licensor shall thereafter assist the Contractor in disposing of
any Materials or Apparatus then in the possession of the Contractor,
including but not limited to the sale of excess inventory to other qualified
Licensees, subject in such case to the constraints of the Licensor's business
and its other obligations.
(d) Licensor shall supply to the Contractor, at the current
rates and prices, any and all materials or apparatus Contractor may need to
complete any outstanding projects or projects that may have been bid prior to
the termination, but not awarded, and a bid bond was provided by the
Contractor, provided the Contractor is not in default of any provision of
Section 6.02.
ARTICLE VII - WARRANTIES; INDEMNIFICATION
7.01 Limited Subject Matter Warranty.
(a) The Licensor represents and warrants that the Product can
successfully rehabilitate many types of sewer (sewerage and storm) and water
pipelines within the Permitted Uses when installation is properly performed.
Every reasonable precaution will be taken by the Licensor in compiling all
data, and offering instructions in the methods of use of the Product
purchased from the Licensor for operation hereunder, to assure compliance
with the Licensor's exacting standards and that the use of the Subject Matter
for the Permitted Uses in accordance with the terms and conditions of this
Agreement maintains a high standard of quality. To the best of the
Licensor's knowledge, all information given will be correct in all material
respects. However, it is impossible to anticipate every possible variation
in the manner of use or the conditions under which the Contractor will apply
the Product and Licensor makes no warranty or representation of results which
the Contractor will attain, and, except as stated above, shall under no
circumstances be held responsible for any such results that occur as a
consequence of a departure from the instructions provided by the Licensor or
from negligence or malfeasance on the part of the Contractor.
(b) Licensor does warrant that the Product will comply with
Licensor's standard specifications and will perform in the Permitted Uses as
described herein and for a period of one year, or as may be required by
customers for a particular project, from the date of sale will not fail in
the performance in such uses on account of manufacturing defects. In the
event of any such failure, the liability of the Licensor shall be limited to
the replacement of the product that has failed.
THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES NOT
EXPRESSLY SET FORTH HEREIN, WHETHER EXPRESSED OR IMPLIED BY OPERATION OF LAW
OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OF FITNESS
FOR ANY PURPOSE OTHER THAN AS IS CONTEMPLATED BY THIS AGREEMENT.
LICENSOR SHALL NOT BE LIABLE FOR EXEMPLARY, PUNITIVE, SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF
PROFITS OR REVENUES, LOSS OF USE OF GOODS OR EQUIPMENT, DAMAGE TO PROPERTY,
COST OF CAPITAL, COST OF SUBSTITUTION OF GOODS OR COVER, LIQUIDATED DAMAGES,
CLAIMS BY PURCHASERS FROM CONTRACTOR. LICENSOR'S LIABILITY TO CONTRACTOR IS
LIMITED TO REPLACEMENT OF GOODS NOT COMPLYING WITH THE AGREEMENT, OR, AT
LICENSOR'S ELECTION, TO THE REFUNDING OR CREDITING OF THE PRICE PAID FOR THE
GOODS, WHETHER THE CLAIM ASSERTED IS IN CONTRACT OR TORT.
(c) The Licensor makes no representation nor warranty that
ULTRALINER PVC ALLOY (Trade Xxxx) or ULTRALINER PVC ALLOY PIPELINER (Trade
Xxxx) or ULTRALINER PVC ALLOY PIPELINER SYSTEM (Trade Xxxx) is available for
use as a service xxxx, tradename, trademark, and/or certificate xxxx in the
United States.
Further, except as expressly set forth in this Article VII, the
Licensor shall not be held responsible for use by the Contractor of any
Product, Materials, Apparatus, Know-how, Patents Rights or Confidential
Material in such manner as to infringe any patent, trademark or copyright
owned by another. The Licensor warrants that it has rights to the patents
pertaining to the Materials subject to no lien, encumbrance or charge
whatsoever.
7.02 Forbearance by Contractor. The Contractor expressly covenants
that during the Term and after the expiration or termination thereof, the
Contractor shall not, directly or indirectly, contest or aid in contesting
the validity, or the ownership or licensing by the Licensor, of the Subject
Matter, the Know-how, any Patent Rights and any Copyrights, as well as any
trademarks, service marks, trade names, and copyrights described under
Section 2.02, or the limitation of the Contractor's right with respect to the
Subject Matter by the terms and provisions of this Agreement. The Contractor
agrees promptly to notify the Licensor of any claim, demand, suit or
litigation based upon or arising from, or of any attempt by any other person,
firm or corporation, to use the Subject Matter, the Know-how, the Patent
Rights, any Copyrights or any such other service and/or trademarks, trade
names, copyrights licenses hereunder without the consent of the Licensor, or
any other Confidential Material or trademark, servicemark, symbol, trade
name, copyright or variation thereof, in which the Licensor has a proprietary
interest. The Contractor agrees also promptly to notify the Licensor of any
material litigation instituted by the Contractor, or by any person, firm,
corporation or governmental agency against the Contractor. In the event the
Licensor, pursuant to the terms of this Agreement hereinafter set forth,
undertakes the defense or prosecution of any litigation except in the case of
the Contractor, the Contractor agrees to execute any and all documents and do
such acts and things which may, in the opinion of counsel for the Licensor,
be necessary or of assistance to carry out such defense or prosecution,
either in the name of the Licensor or in the name of the Contractor, as the
Licensor shall elect and to cooperate with the Licensor in its efforts to
protect the Copyrights, as well as any trademarks, service marks, trade
names, and copyrights described under Section 2.02.
7.03 Defense of Patent Rights and Trademarks. Notwithstanding any
other provision herein, the Licensor does hereby agree, at its expense, to
defend Patent Rights, if any, and the servicemarks and trademarks herein
described by such means as it in its sole discretion may determine
appropriate, including but not limited to, patent or trademark infringement
suits, as the case may be.
The Licensor reserves, however, the exclusive right to determine
whether a patent infringement has occurred, and whether a trademark
infringement has occurred, and whether litigation or other action is
appropriate or feasible. Subject to approval by the Licensor and control by
the Licensor of any and all proceedings initiated as a result thereof, the
Contractor, with its own counsel reasonably acceptable to the Licensor, may,
at its option and expense, take steps to defend the Patent Rights, any
service xxxx or trademark and the Contractor's rights thereunder.
7.04 Indemnification by Contractor. The Contractor agrees to
indemnify, defend and hold the Licensor harmless from any and all claims,
including, without limitation, for bodily injury (including death), personal
injury and damage to property of the Contractor, the Licensor and/or others,
which arise from the alleged negligence or malfeasance of the Contractor or
from the existence or use of Materials and/or Apparatus acquired from sources
other than the Licensor or which are produced by the Contractor
ARTICLE VIII - LIMITED ARBITRATION PROCEDURES
8.00 Any controversy or claim arising out of or relating to the
subject matter of this contract, or the breach thereof; shall be submitted to
arbitration in accordance with the rules of the American Arbitration
Association, and the results thereof shall be binding on the parties.
ARTICLE IX - INDEPENDENT CONTRACTORS
9.00 Independent Contractors. This Agreement does not constitute
either party as an agent, legal representative, joint venturer, partner,
employee, or servant of the other party for any purpose whatsoever; and it is
understood between the parties hereto that each party is an independent
contractor and is in no way authorized to make any contract, agreement,
warranty or representation on behalf of the other party, or to create any
obligation, express or implied, on behalf of the other party. The Contractor
shall prominently display in its place of business a certificate from the
Licensor stating that said business is operated by the Contractor as a
licensee of the Licensor, and not as an agent thereof.
ARTICLE X - TRANSFER OR ASSIGNMENT OR LICENSE.
10.00 Subject to the requirements of the immediately succeeding
sentence, the Contractor, if not in default under this Agreement, shall have
the right to sell and assign its rights hereunder.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns, with the specific
understanding and requirement that the Contractor, without the Licensor's
prior written consent, which consent shall not unreasonably be withheld,
shall not, by operation of law or otherwise, sell, assign, transfer, conveys
subcontract, give away, or encumber to any person, firm or corporation, its
interest in this Agreement, or its interest in the license granted hereby,
nor offer, permit, or suffer the same. Any such assignment permitted by the
Licensor to any Affiliate of the Contractor shall be made on the express
condition that the assignor guarantees the performance of its assignee
strictly in accordance with the terms and provisions hereof. In the event
that the Contractor is a corporation or partnership, should beneficial
ownership of an amount of the outstanding capital stock or other interest, as
the case may be, or other indicia of ownership in the Contractor be conveyed
so as to effect a Change in Control of the Contractor, whether by sale,
conveyance, operation of law or otherwise, without having first obtained the
written consent of the Licensor to transfer the license, which consent shall
not unreasonably be withheld, the Licensor shall at its option have the right
to immediately terminate this Agreement or enter into a new Agreement with
the Change in Control. Any purported assignment, transfer, conveyance or
subcontract of this Agreement not having the aforesaid consent shall be null
and void and shall constitute a material default hereunder. If any event has
occurred or fact or circumstance exists which, but for the giving of notice
passage of time or otherwise, would constitute a default hereunder, the
Contractor shall so advise any proposed transferee hereunder. Upon approval
of any assignment, transfer, or conveyance of the Agreement by the Licensor,
the assignment, transfer, or conveyance shall be completed without additional
License fees or other costs being assessed to the Contractor.
ARTICLE XI - MISCELLANEOUS
11.1 Notices. Any notice required or permitted to be given or served
upon either party hereto pursuant to this Agreement shall be sufficiently
given or served if sent to such party by United States registered mail,
postage prepaid addressed to such party as set forth below is signature at
the foot hereof and/or to such other address as it shall designate by written
notice to the other party.
11.02 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns, subject to the term set out in Article X.
11.03 Exclusivity of License. If, despite the Licensor's efforts to
maintain the exclusivity of the license granted hereunder, such exclusivity
should be terminated for any reason whatsoever, and the Agreement is
continued, but amended, the Contractor is nevertheless obligated to comply in
full with each and every term and condition of this Agreement, including, but
not limited to, the maintenance of high standards of quality and service.
11.04 Exclusions. It is the intention of the Licensor and the
Contractor that the provisions of this Agreement shall be enforced to the
fullest extent permissible under the laws and public policies of each
jurisdiction in which enforcement is sought, but that the unenforceability of
any provisions of this Agreement shall not render unenforceable, or impair,
the remainder of this Agreement. In the event that any one or more of the
provisions of this Agreement is, or are, held to be invalid, it is agreed
between the parties that, if legally practical said provision or provisions
shall be considered never to have been contained herein and this Agreement
shall otherwise continue in force and effect. To the extent that the
provisions of this Agreement provide for periods of notice less than those
required by applicable law, or provide for termination, cancellation, non-
renewal or the like other than in accordance with applicable law, such
provisions shall, to the extent such are not in accordance with applicable
law, not be effective, and the Licensor shall comply with applicable law in
connection with each of these matters. References in this Agreement to the
materiality of any terms hereof are not intended to be exhaustive of all such
material terms, and shall not preclude any other provision from construction
as or constituting a material provision hereof.
11.05 Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the Subject Matter
hereof and supersedes all prior oral and written understandings and
agreements between the parties hereto concerning the Subject Matter. The
article headings of this Agreement are for convenience only and have no other
significance. The Provisions of this Agreement shall not be waived, modified
or amended, except by a subsequent writing signed by both parties.
11.06 Gender. Words of the neuter gender utilized in this Agreement
shall be deemed to be of the masculine or feminine gender where the context
requires. Words of the singular number utilized in this Agreement shall be
deemed to be plural where the context requires and vice versa.
11.07 Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Alabama.
11.08 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original and both of which or a photocopy
thereof shall constitute one and the same agreement.
11.09 Standard of Dealing. The parties shall perform such further acts
and deeds as shall be necessary to effectuate the purposes of this Agreement
and shall, in their respective performance hereunder, at all times deal in
the utmost good faith with each other.
11.10 Most Favored Licensee. In the event the Licensor subsequently
enters into any license agreement for the Subject Matter in the Permitted
Uses within the United States or its territories, and such license contains
terms materially more favorable to the licensee thereunder than are contained
herein with respect to the Contractor, the, at the option of the Contractor,
this agreement shall be amended to incorporate such more favorable terms.
IN WITNESS HEREOF, THE PARTIES HERETO HAVE CAUSED THIS CONTRACTOR
LICENSE AGREEMENT TO BE SIGNED AND DELIVERED BY THEIR AUTHORIZED
REPRESENTATIVES ON THE DATE SET OUT IN THE OPENING PARAGRAPH.
ATTEST:
s/Xxxxx X. Xxxxxx By: Unknown Entity or Person
------------------------ -------------------------
Its: Assistant Secretary Its: s/X. X. Xxxxxx
------------------- -------------------------
President
ATTEST: ULTRALINER, INC.
s/Xxxxxxx X. Xxxxxx By: s/Xxxxxx X. Xxxxxxx
------------------------ -------------------------
Xxxxxxx X. Xxxxx Xxxxxx X. Xxxxxxx
Its: Its:
------------------- -------------------------
Secretary President
STATE OF FLORIDA
XXXXXX COUNTY
I, the undersigned Notary Public, do hereby certify that on this 12th
day of July, 1995, personally appeared before me X. X. Xxxxxx and Xxxxx
Xxxxxx, who, being by me first duly sworn, declared that they are the
President and Assistant Secretary of Unknown Entity or Person, that they
signed the foregoing CONTRACTOR LICENSE AGREEMENT as President and Assistant
Secretary of the corporation, and with full authority, executed same
voluntarily for and as the act of said Corporation.
s/Xxxxx Xxxxx
--------------------------------
Notary Public
My Commission Expires:
(SEAL)
Xxxxx Xxxxx
My Commission #CC 364036
Expires: April 3, 1998
BONDED THRU NOTARY PUBLIC UNDERWRITTERS
STATE OF ALABAMA
XXXXXXX COUNTY
I, the undersigned Notary Public, do hereby certify that on this14
day of August, 1995, personally appeared before me Xxxxxx X. Xxxxxxx and
Xxxxxxx X. Xxxxx, who, being by me first duly sworn, declared that they are
the President and Secretary of ULTRALINER, INC., that they signed the
foregoing CONTRACTOR LICENSE AGREEMENT as President and Secretary of the
corporation, and with full authority, executed same voluntarily for and as
the act of said Corporation.
s/Xxxxxx X. Xxxxxxxx
---------------------------------
Notary Public
(SEAL) My Commission Expires:6-3-97
--------
