LICENSE AGREEMENT
This agreement ("Agreement") made and entered into effective August 21,
1999 ("Effective Date") by and between Xxxxx X. Xxxxxxxxx & Associates, located
at X.X. Xxx 0000 Xxxxx, Xxxxxxxx Xxxxxx, Xxxxx, X.X.X., ("Grantor") and New
Hampshire Industrials Inc., ("Licensee"), a Nevada Corporation whose registered
office is at 00 Xxxx Xxxxxxx Xxxxxx, Xxxxx 000, Xxxx, Xxxxxx 00000;
W I T N E S S E T H:
WHEREAS, Grantor has certain rights as evidenced by the attached
Distribution Agreement (the "Distribution Agreement") to Products developed by
NW Technologies, Inc. (NWT"), a Texas corporation with its principal offices at
0000 Xxxxxxxxxxxx, Xxxxxxx, Xxxxx 00000, which company has developed proprietary
know-how in the Products, including Products covered by one or more US Patents
that have been licensed to NWT, and other Products (as hereinafter defined); and
WHEREAS, NWT has proprietary rights to trade dress and trademarks for the
brand name "Natures' Way" and "The Environmental Solution", and other trademarks
and trade dress' as may be revealed to Licensee from time to time, collectively
referred to as "Marks"; and
WHEREAS Grantor is under obligation to maintain the proprietary rights of
NWT to the Marks and to protect NWT's proprietary know-how, as outlined in the
Distribution Agreement; and
WHEREAS, NWT and Grantor desire to have the Products marketed by the
Licensee, under the Licensee's own private label, in the Territory (as
hereinafter defined); and
WHEREAS, Licensee desires to market the Products in the Territory and
hereby acknowledges NWT's exclusive ownership of all of the Marks;
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
and other, good and valuable consideration, Grantor and Licensee agree as
follows:
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ARTICLE I
GRANT, TERRITORY AND PRODUCTS
1.01 GRANT AND TERRITORY. (a) Grantor hereby designates Licensee as a
Private Label distributor for the marketing of the Products in the market(s) and
geographic area(s) set forth in Exhibit "A" hereto, ("Territory"). Licensee
hereby accepts the designation as a distributor on the terms and subject to the
conditions contained herein.
(b) Licensee hereby agrees that it will make no use of any present or
future Marks of NWT, or of any marks that would cause confusion with the general
public, for any reason without specific written approval of NWT. Upon
termination of this Agreement for any reason Licensee agrees to cease
immediately all use and display of NWT's trademarks, service marks and trade
names (the Marks) if any permission to use the Marks has been granted.
1.02 PRODUCTS. (a) The term "Product(s)" as used herein shall mean
only those Products as defined in Exhibit "B" hereto.
(b) "Affiliated Persons" shall mean officers, employees, sales
representatives, consultants or other employees or non-employees to whom
Licensee grants authority to represent the Products.
(c) Licensee's owned label, ("Private Label"), shall mean that the
Product(s) shall be packaged by Licensee utilizing a label on the packages of
the Licensee's own design and invention. Since Licensee's intended uses of the
Product are outside the scope of the expertise of Grantor or its personnel,
Grantor will not be required to furnish label detail to Licensee.
1.03 CONSIDERATION: Licensee agrees to pay Grantor the sum of $2,000 US
in the form of 2,000,000 shares of Licensee's common stock, par value $0.001
(the "Shares"). Licensee agrees to file a notice of placement of the Shares with
the U.S. Securities & Exchange Commission on Form D. Said stock is to be issued
as of the date of execution of the subscription agreements for the Shares to the
members of Grantor's Association in the amounts specified in Exhibit F of this
Agreement. Grantor warrants that each of the members of the Association are
"accredited investors" as that term is defined in Rule 501 of Regulation D under
the Securities Act of 1933, as amended.
ARTICLE II
DURATION, TERMINATION AND NATURE OF RELATIONSHIP
2.01 DURATION. The term of this Agreement shall be three (3) years from
the Effective Date unless terminated earlier as herein provided. This Agreement
may be renewed by Licensee for additional three (3) year periods if no event of
default exists and all other provisions of this Agreement are in full force and
effect.
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2.02 TERMINATION. (a) This Agreement may be terminated by Grantor for
cause upon the giving of notice as herein provided. This Agreement may be
terminated by Licensee, for any reason, upon the giving of notice as provided in
Section 8.02.
(b) Termination for Cause. In the event that Licensee shall file a
voluntary petition in bankruptcy or for reorganization of indebtedness, or that
Licensee should, for a period of more than ninety days be the subject of an
involuntary bankruptcy proceeding or receivership over all or substantially all
of Licensee's assets, or that Licensee or any Officer or Director of Licensee
should be found guilty of a felony or a crime involving moral turpitude, or that
Licensee shall, with knowledge and deliberation, breach any provision of this
Agreement, then Company may immediately, upon delivery of written notice to
Licensee, terminate this Agreement. Cause shall also include the violation by
Licensee of any of the provisions, purchase requirements, or monetary
requirements of this Agreement ("Events of Default").
(c) Licensee will be allowed 30 days after written notification of an
Event of Default to correct the violation, except for monetary provisions which
will not be granted a grace period by Grantor.
(d) Termination of this Agreement shall not release Licensee or Grantor
from the obligations of either party contained herein.
(e) Termination of this Agreement cancels any rights granted to Licensee
herein.
2.02 NATURE OF RELATIONSHIP. (a) This Agreement does not constitute
nor empower the Licensee as the agent or legal representative of Grantor for any
purpose whatsoever. Licensee is and will continue to be an independent
contractor.
(b) The arrangement created by this Agreement is not, and is not intended
to be, a franchise or business opportunity under the United States' Federal
Trade Commission Rule: Disclosure Requirements and Prohibitions Concerning
Franchising and Business Opportunity Ventures and is not a franchise, business
opportunity or seller assisted marketing plan or similar arrangement under any
other federal, state, local or foreign law, rule or regulation;
(c) Licensee shall not repackage or re-label Products for any reason,
except as may be allowed in any licensing agreement issued by Grantor, without
prior written authorization from Grantor. Notwithstanding the provisions of this
paragraph 2.03(c) it is understood by Company that Licensee will repackage
Product and apply Licensee's own label to the containers. The purpose of this
section is to assure that Licensee will not re-label any Product incorrectly
whereby the public would be confused with the recommended use of the Product.
(d) Licensee declares that it will not sell or offer for sale the product
Biocatalyst for use in applications involving bioremediation of hydrocarbons or
where microbes are used, enhanced or suggested for use without specific written
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authorization from Grantor. The language herein is not intended to prohibit the
Licensee's use of the Product for that purpose in remediation of cane bagasse,
silage, compost, trash and garbage, or other organic waste and byproducts
remediation, exclusive of remediation of petroleum-based hydrocarbon
contamination. Licensee acknowledges that its intended use of the product
"Biocatalyst" for remediation of cane bagasse, silage, compost, trash and
garbage, and other organic waste or byproducts, exclusive of remediation of
petroleum-based hydrocarbon contamination has not been specifically tested by
Grantor and as a consequence of this is not included as a recommended use of the
product Biocatalyst by Grantor. Notwithstanding the foregoing, both parties
acknowledge that in bioremediation, Biocatalyst is specifically used to enhance
the growth of microbes in soils, particularly at depths where oxygen exchange is
limited.
ARTICLE III
CONFIDENTIALITY, INDEMNITY AND REMEDIES
3.01 CONFIDENTIAL INFORMATION. (a) Licensee acknowledges that in
performing its obligations hereunder it will have access to confidential
information and trade secrets of NWT and Grantor not generally known to the
public ("Confidential Information") and -Licensee is obligated to maintain the
confidentiality of the Confidential Information on its own behalf and on behalf
of its "Affiliated Persons" to whom Confidential Information is disclosed. For
the term of this Agreement and for a period of 5 years after cancellation hereof
Licensee and its Affiliated Persons will treat all Confidential Information in a
confidential manner.
(b) Licensee agrees that it will not analyze or otherwise test, or submit
to anyone else for analysis or testing (chemically or otherwise) any Product
unless approved in writing by Grantor and NWT and unless NWT and Grantor are
directly involved in the testing. NWT and Grantor grant the Licensee hereunder
the right to have the Product tested for the presence of oxygen, pathogens or
other nondesirable components. Grantor makes no warranty as to the content of
the Product.
(c) Licensee agrees to sign and to have its affiliated persons sign
confidentiality agreements in the same form as contained herein or as approved
by Grantor.
3.02 NONCOMPETITION. Licensee agrees that the relationship between
Licensee and Grantor is of a special nature and further agrees on its own behalf
and on behalf of its Affiliated Persons that during the term of this Agreement
and for a period of twelve (12) months from and after the termination of this
Agreement that Licensee and its Affiliated Persons will not engage or hold any
interest, directly or indirectly, in any enterprise engaged in the manufacture,
sale or distribution of products of the type manufactured, sold or distributed
by Grantor as of the date this Agreement is terminated.
3.03 REMEDIES. Licensee agrees that Grantor shall be entitled to seek
and obtain injunctive relief from a court of competent jurisdiction for the
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purposes of restraining Licensee from any actual or threatened breach of the
provisions contained herein.
3.04 INDEMNITY OF LICENSEE AND GRANTOR. Licensee and Grantor shall
indemnify the other and hold them harmless from and against any and all claims,
losses, costs, expenses and liabilities of any kind, including without
limitation court costs and reasonable attorneys' fees, suffered or incurred by
any of them on account of, related to, or arising out of the conduct of the
Licensee's or Grantor's business as the case may be.
ARTICLE IV
GRANTOR'S OBLIGATIONS TO LICENSEE
4.01 LICENSE TO PRODUCE. Grantor agrees to grant to Licensee a
non-exclusive license to manufacture the product "Biocatalyst" upon the
following terms and conditions:
(a) License. After the Licensee has purchased a minimum of 5,000 gallons
of Product each month for a minimum period of six (6) consecutive months,
Licensee may apply for a license to produce the product in a location to be
named by Licensee. Upon approval by the Company of the location and methods of
production and security measures, which shall not be unreasonably withheld, and
payment of a one-time fee of US $25,000 (the "Production License Fee"), the
License to Produce will be granted. However, if after the effective date hereof,
Licensee, his successors or permitted assigns, can demonstrate to Grantor's
satisfaction the financial capability of Licensee, his permitted successors or
assigns, then upon payment of the Production License Fee, the provisions of this
section will be deemed by Company to have been fulfilled and the referenced
License to Produce will be granted by Company.
(b) The ingredient "Biomas" as used in the Product will be supplied by
Grantor upon terms, conditions and pricing that may be stated to Licensee by
Grantor at the time of issue of the subject License to Produce.
(c) Royalty and Expense. At the time of issuance of the subject License
to Produce a one-time payment of $10,000.00 will be made to Grantor by Licensee
to reimburse Grantor for unspecified expenses. A monthly royalty of 8% (eight
percent) of gross sales of Licensee will be paid by Licensee to Grantor within
20 days of the end of each month.
(d) Minimum Royalties. The minimum annual royalties to be paid by
Licensee hereunder, commencing with the granting of a License to Produce from
Grantor to Licensee will be $20,000.00. The minimum annual royalties to be paid
hereunder are non-accumulative.
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4.02 PERSONNEL. Grantor agrees to make available to Licensee Grantor's
trained technical personnel for consultation from time to time, if Licensee so
requests in writing. Such consultation may be by telephone or in person. If
Licensee requires the personal assistance of on site technical personnel, then
Licensee will pay actual travel and living expenses for such personnel as agreed
between Grantor and Licensee and an additional fee (per diem) of $300.00 per day
for each technical person requested.
ARTICLE V
LICENSEE'S OBLIGATIONS TO GRANTOR
5.01 DEVELOP TERRITORY. Licensee agrees to (i) use its best efforts to
market the Product in specified markets throughout the Territory, (ii) devote
such time and effort as may be necessary to do so, (iii) retain and train
sufficient staff that is knowledgeable in the sale and use of the Products, and
(iv) maintain facilities sufficient to market, sell, and distribute the
Products.
5.02 BUSINESS RECORDS. Licensee agrees to maintain reasonably detailed
and accurate records relating to the use of the Products and to furnish to
Grantor a detailed copy of all sales records, invoice copies, copies of all
testimonial letters, product usage data and other records and reports relating
to the sale and use of the Products within the Territory (the "Business
Records") upon request in writing by Grantor.
5.03 COMPLIANCE WITH LAWS. Licensee agrees, on its behalf and on
behalf of its "Affiliated Persons" not to perform any acts or transactions which
would place Grantor or Licensee in violation of domestic, foreign, or
international laws, rules or regulations.
5.04 INFORMATION REGARDING USE OF PRODUCT. Licensee agrees to forward
to Grantor any and all information, including written, digital, or pictorial
pertaining to the use and distribution of the Products as such information
becomes known to Licensee.
5.05 INVENTORIES. Licensee agrees to maintain adequate inventories of
Products in the Territory to service customers needs.
5.06 LICENSEE'S CONTROL OVER BUSINESS. Licensee shall establish the
means by which it satisfies its obligations under Sections 5.01 and 5.05.
Grantor shall have no right to enforce, and no action shall accrue under, such
provisions until this Agreement shall have been in force for more than one year
and Licensee shall have failed to meet its minimum purchase requirements set
forth in Exhibits A and C.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF LICENSEE
6.01 ORGANIZATION. Licensee represents and warrants to Grantor that
Licensee has the authority to enter into this Agreement and to perform its
obligations hereunder.
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6.02 NO DEFAULTS. Licensee represents and warrants to Grantor that
neither the execution and delivery of this Agreement nor the performance of the
transactions contemplated hereby will conflict with or result in a breach or
violation of any agreement, document, instrument, judgment, decree, order,
governmental permit, certificate or license to which Licensee is a party or to
which Licensee is subject.
ARTICLE VII
TERMS OF SALE
7.01 STANDARD TERMS AND WARRANTIES. SINCE THE USE OF THE PRODUCTS ARE
BEYOND THE CONTROL OF GRANTOR THE PRODUCTS ARE SOLD "AS IS", "WHERE IS", WITH NO
WARRANTIES, EXPRESS OR IMPLIED. GRANTOR MAKES NO WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PRODUCTS OR THEIR PERFORMANCE OR AS TO SERVICE, TO LICENSEE
OR ANY OTHER PERSON. IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, TO LICENSEE OR TO ANY OTHER PERSON ARE HEREBY DISCLAIMED. IN
NO EVENT SHALL GRANTOR BE LIABLE TO LICENSEE OR ANY PERSON FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES. THE LIABILITY OF GRANTOR, IF ANY, FOR DAMAGES RELATING TO
ANY ALLEGEDLY DEFECTIVE PRODUCT UNDER ANY LEGAL OR EQUITABLE THEORY SHALL BE
LIMITED TO THE ACTUAL PRICE PAID FOR SUCH PRODUCT. Grantor may change the
limited warranty contained in this Section 7.01 at any time.
7.02 PLACEMENT OF ORDERS AND SHIPPING TERMS. All shipments of Product
shall be FOB Grantor's plant, Houston, Texas, unless specifically agreed
otherwise and all shipments will be made by common carrier in accordance with
regulations relating thereto and delivery is not guaranteed by Grantor at or to
the destination. Grantor is not responsible for claims for shortages or damage
in transit; such claims must be made by the Licensee against the carrier. All
orders shall be placed with Grantor in writing upon forms approved by Grantor
and Licensee shall verify the accuracy of the order. Grantor has the right to
accept or reject any order, and the terms and conditions thereof, if the
Licensee is in default with any of the requirements or conditions of this
Agreement.
7.03 CLAIMS OF FAULTY PRODUCTS. ANY CLAIMS FOR FAULTY PRODUCTS SHALL
BE GOVERNED BY THE UNIFORM COMMERCIAL CODE OF TEXAS, USA UNLESS STATED OTHERWISE
IN THIS AGREEMENT.
7.04 TITLE AND RISK OF LOSS. Products sold to Licensee shall become
the property of Licensee and title and risk of loss shall pass to Licensee at
the time of delivery of the Products to a carrier for shipment to Licensee or
Licensee customer, subject, however, to a security interest which Grantor hereby
reserves in the Products until payment for the Products is received by Grantor.
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7.05 PAYMENT TERMS. Licensee shall make payment to Grantor in U.S.
dollars to Grantor for all materials ordered under this Agreement at the address
set forth herein, and upon the terms and manner of payment as shown on the Price
List of Grantor as amended from time to time.
7.06 CREDIT SALES. Licensee and Grantor both acknowledge and agree
that if any sale on credit is permitted hereunder Grantor hereby retains a
security interest in and lien upon the Products so sold until payment in full is
received by Grantor.
7.07 INSURANCE. Licensee shall secure and maintain insurance on its
inventory of Products purchased on credit in the U.S. dollar amount at least
equal to the amount owing to Grantor by Licensee. Such insurance coverage shall
list Grantor as an additional insured party.
7.08 PRICES. Licensee's price from Grantor for Products and printed
matter shall be as set forth in Grantor's current published pricing schedule.
This pricing is subject to change from time to time upon written notice
transmitted by facsimile, or US Mail, by Grantor to Licensee not less than ten
(10) days in advance of any price changes. Prices for Product by Grantor to
Licensee shall be as shown on Exhibit "B" attached hereto.
7.09 PRINTED MATTER. Licensee is prohibited from producing and
distributing his own literature, or from any action that would give the
impression directly or indirectly, to others that Product and/or the "Marks" are
the property of Licensee.
7.10 BIOMAS SUPPLY. At the time that an Agreement allowing the
Licensee to produce the Product as allowed by the terms and conditions stated in
this Agreement the formulae and processes for the production of the raw material
"Biomas" will be placed with an escrow agent acceptable to both Licensee and
Grantor. If Grantor is not able to supply Biomas in quantities sufficient to
meet Licensee needs for production of Product, and the non-supply condition
continues for a period of 90 (ninety) days, then Licensee will be allowed to
produce Biomas in accordance with a non-exclusive License to Produce to be
issued by Grantor in accordance with the License form deposited with the
formulae and processes with the approved escrow agent.
ARTICLE VIII
MISCELLANEOUS CONDITIONS
8.01 GOVERNING LAW. This Agreement and any questions concerning its
validity, construction and performance shall be governed by the laws of the
State of Texas, U.S.A., with venue in Xxxxxx County, Texas. Further, the parties
to this Agreement hereby irrevocably submit to the exclusive jurisdiction of the
federal courts sitting in Xxxxxx County, Texas, for any action or proceeding
arising out of or relating hereto.
8.02 NOTICES. Any notice or other communication required or permitted
to be given hereunder shall be in writing and shall be sent by certified United
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States mail, return receipt requested to the other party at the address
specified in the first paragraph of this Agreement. The address of either party
specified above may be changed by a notice given by such party to the other
party in accordance with this Section 8.02.
8.03 EXCUSE OF PERFORMANCE. Grantor's and Licensee's performance
(other than Licensee's obligation to pay for Products or other fees or monetary
obligations in accordance herewith, which shall not be excused) hereunder shall
be excused if (but only for so long as) any of the following conditions or
events occur and are continuing: Labor conflicts, strikes, lock-outs, fires,
explosions, war, civil disturbances, unforeseen military action, governmental
action, requisitions or seizures, delays of subcontractors or vendors,
unavailability of raw materials or transport facilities, acts of God or nature,
or any other condition or event which is beyond the reasonable control of
Grantor or Licensee, as the case may be.
8.04 ENTIRE AGREEMENT. This Agreement, the Exhibits hereto and any
confidentiality agreement and subdistribution agreement, constitute the entire
agreement between the parties with respect to the subject matter hereof and may
not be altered or modified except by an agreement in writing referring to this
agreement and signed by the parties hereto. Grantor and the Licensee agree that
this agreement supersedes all prior agreements written or oral.
8.05 COUNTERPARTS. This Agreement maybe executed in multiple
counterparts, each of which shall be deemed to be an original, and all of which
together shall constitute but one and the same instrument.
8.06 NO WAIVER. No failure or delay by any party hereto in exercising
any right, in whole or in part, power or privilege hereunder shall operate as a
waiver thereof.
8.07 AMENDMENT. This Agreement may not be amended or modified except
by an instrument in writing signed on behalf of the parties thereto specifically
referencing this Agreement.
8.08 SEVERABILITY. Any provisions hereof prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall be ineffective
as to such jurisdiction, without affecting any other provision of this
Agreement.
8.09 BINDING ON SUCCESSORS; ASSIGNMENT. This Agreement is binding on,
and shall inure to the benefit of the parties hereto and their respective
successors, heirs and permitted assigns. This Agreement and any rights or duties
hereunder may not be assigned by Licensee, whether such assignment occurs by
merger, consolidation, sale, lease, other disposition of or any other business
combination of Licensee, without the prior written consent of Grantor. Grantor
may assign its rights hereunder to any person provided that such person, either
expressly or by operation of law, assumes Grantor's obligations hereunder. The
above notwithstanding, Grantor understands that Licensee is, as of the effective
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date hereof, negotiating with several companies for the purpose of entering into
a merger, joint venture, or marketing arrangement specifically for the purpose
of marketing or financing Licensee's efforts in marketing of the Product.
Grantor agrees that as long as the requirements of this Agreement are fulfilled
that Grantor will not unreasonably deny a request to allow Licensee to enter
into the contemplated agreement.
8.10 ATTORNEYS' FEES. If any action at law or in equity is necessary
to enforce or interpret the terms of this Agreement, the prevailing party shall
be entitled to reasonable attorneys' fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the dates set forth beneath their
respective signatures below, to be effective for all purposes as of the date
first above written.
NEW HAMPSHIRE INDUSTRIALS INC. XXXXX X. XXXXXXXXX & ASSOCIATES
BY: /s/ By: /s/
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X.X. Xxxxxxx Xxxxx X. Xxxxxxxxx
TITLE: President
DATE: 8/20/99 DATE: 8/20/99
---------------------------- ------------------------------
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XXXXXXX "X"
XXXXXXXXX
Geographic Area:
Non-Exclusive Private Label License for the States of New Hampshire and Vermont
for remediation of cane bagasse, silage, compost, trash, garbage, other organic
waste and byproducts, exclusive of remediation of petroleum-based hydrocarbon
contamination. Licensee may not make any use of Grantor's or NWT's marks, name,
or make any reference to NW Technologies, Inc. in labeling, packaging, or
advertising materials of any kind.
Licensees Obligations to Grantor: Licensee agrees to minimum purchase
requirements as shown in Exhibit "C".
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EXHIBIT "B"
Products Included in This Agreement
The product Biocatalyst is the only product included in this Agreement subject
to provisions of the Agreement.
The product Biomas in included herein only if a license to produce the Product
is granted to Licensee in accordance with the terms and conditions contained
herein.
Prices: The initial price to Licensee for the Product Biocatalyst is $2.00 per
gallon in 2,000 gallon quantities to be packaged in a bulk container furnished
by Licensee. The suitability of the bulk container to receive and transport the
Product is, and will remain, the responsibility of Licensee.
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EXHIBIT "C"
PURCHASE OBLIGATIONS
1st Year $125,000.00
2nd Year $175,000.00
Notwithstanding the above, if Licensee shall have purchased the right to produce
as outlined in Section 4.01 of this Agreement, Licensee shall have no purchase
requirement. Grantor shall have no right to enforce, and no action shall accrue
in respect of, Licensee's Purchase Obligations until this Agreement shall have
been in force for more than one year.
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EXHIBIT "D"
PAYMENT TERMS
The payment terms relating to this Agreement are cash in advance.
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EXHIBIT "E"
CONFIDENTIALITY AGREEMENT
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CONFIDENTIALITY AGREEMENT
WITNESSETH:
This Agreement by and between NW Technologies, Inc., a Texas corporation with
its principal offices located at 0000 Xxxxxxxxxxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxx 00000 (herein "NWT") and Xxxxx X. Xxxxxxxxx, and individual with his
principal office located at X.X. Xxx 0000, Xxxxx, Xxxxxxxx Xxxxxx, Xxxxx 00000
(herein "Xxxxxxxxx"), jointly hereinafter referred to as "Discloser"; and New
Hampshire Industrials Inc. a Nevada corporation with principal offices at P. O.
Box 5034, Alvin, Xxxxxxxx Xxxxxx, Xxxxx 00000-0000 (Herein "Disclosee") is made
and entered into this 24t' day of December, 1998.
WHEREAS, NWT has developed proprietary know-how in its products marketed
under the trade name "Natures' Way" and "Biocatalyst"; and other trade names
from time to time, and;
WHEREAS, NWT has proprietary rights to trade dress, trademarks, and designs
for the brand name "Natures' Way", "Biocatalyst", "The Environmental Solution",
manufacturing processes and procedures, application processes and procedures,
and;
WHEREAS, NWT has entered into an exclusive marketing agreement with
Xxxxxxxxx to market its product Biocatalyst under their own brand names,
including among others, "OxyMax", "O-Max", "02Max", "Oxy-Ice", "O-Gel", "02Gel"
for human and animal consumption, including but not limited to pharmaceutical,
cosmetic, medical and beverage uses;
NOW THEREFORE, in consideration of the mutual covenants set forth herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Discloser and Disclosee agree as follows:
1.0 ANALYSIS OF SAMPLES OR PRODUCT: Parties hereto agree that Disclosee
will not analyze (chemically or otherwise) or cause to be analyzed any of NWT's
BioCatalyst product, except as specifically required by state or federal
statute, regulation, common law, or court order. No such analysis of Biocatalyst
shall be made without 10 days' advance written notice to NWT, and NWT shall be
responsible for and pay for any deviation from the testing protocol that may be
required by NWT.
2.0 CONFIDENTIALITY OF INFORMATION: Parties hereto acknowledge that they
will have access to confidential, specialized, and proprietary information and
trade secrets of NWT not generally known to the public which are the proprietary
information of NWT. Parties hereto agree that the Confidential Information
revealed to them is a valuable proprietary interest of NWT and that they are
obligated to maintain the confidentiality of the Confidential Information so
revealed. The Parties hereto agree that they will not disclose or authorize any
other person to disclose, publish, disseminate or use the Confidential
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Information, and will treat all Confidential Information in a confidential
manner. The Parties hereto acknowledge that NWT would be irreparably harmed by
the unauthorized use of the Confidential Information herein referred to.
3.0 GOVERNING LAW: This agreement and any questions concerning its
validity, construction and performance shall be governed by the laws of the
State of Texas, U.S.A., with venue in Xxxxxx County, Texas.
4.0 ENTIRE AGREEMENT: This agreement is the entire agreement between the
parties with respect to the subject matter hereof and may not be altered or
modified except by an agreement in writing signed by the parties hereto.
5.0 NO WAIVER: No failure or delay by any party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof nor shall
any single or partial exercise thereof or the exercise of any right, power or
privilege.
6.0 AMENDMENT: This Confidentiality Agreement may not be amended or
modified except by an instrument in writing signed on behalf of the parties
thereto.
7.0 SEVERABILITY: Any provisions hereof prohibited by or unlawful or
unenforceable under any applicable law of any jurisdiction shall be ineffective
as to such jurisdiction, without affecting any other provision of this Agreement
or in any other jurisdiction.
8.0 ATTORNEYS' FEES: If any action at law or in equity is necessary to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to reasonable attorneys' fees, costs, and necessary disbursements in
addition to any other relief to which such party may be entitled.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives on the dates set forth beneath their
respective signatures below, to be effective for all purposes as of the date
first above written.
NW TECHNOLOGIES, INC. NEW HAMPSHIRE INDUSTRIALS INC.
BY: By: /s/
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X.X. Xxxxxx X. X. Xxxxxxx
TITLE: Chairman President
DATE: DATE: 8/20/99
---------------------------- ------------------------------
XXXXX X. XXXXXXXXX & ASSOCIATES
BY: /s/ DATE: 8/20/99
------------------------------ -----------------------------
Xxxxx X. Xxxxxxxxx
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