LICENSE AGREEMENT
Exhibit
10.16
This
LICENSE AGREEMENT (the
“Agreement”) is made and entered into as of the 2nd day of May, 2007, by and
between Community Alliance, Inc, a Nevada corporation (the “LICENSOR”), and
Frontier Digital Media, LLC., 0000 Xxxxxx Xxxx Xx., Xxxxxxx Xxxxx, XX
00000, (the “LICENSEE”).
WITNESSETH:
WHEREAS,
LICENSOR has all rights
to the Know-How, Marketing Materials, Publications and Designs and Trademarks
(collectively, the “INTELLECTUAL PROPERTY”), the ADVERTISING PRODUCT and the
BUSINESS CONCEPT, all as defined below; and
WHEREAS,
LICENSEE desires to acquire the exclusive license to use the INTELLECTUAL
PROPERTY in the LICENSED TERRITORY, as defined below, subject to the provisions
and conditions set forth in this Agreement; and
WHEREAS,
LICENSOR is willing to grant
to LICENSEE the exclusive license to use the INTELLECTUAL PROPERTY in the
LICENSED TERRITORY, subject to the provisions and conditions set forth in this
Agreement; and
WHEREAS,
LICENSOR desires to retain
the rights to the INTELLECTUAL PROPERTY, the ADVERTISING PRODUCT and the
BUSINESS CONCEPT for its own purposes, except in the LICENSED
TERRITORY.
NOW,
THEREFORE, in consideration of
the mutual promises, premises and obligations of the respective parties set
forth herein, it is hereby contracted, covenanted and agreed as
follows:
1. DEFINITIONS.
1.01 “INTELLECTUAL
PROPERTY”
shall mean all Know-How, Marketing Materials, Publications and Designs,
Trademarks and all other materials, whether now existing or developed in the
future, for use in the BUSINESS CONCEPT and used by the LICENSEE in the LICENSED
TERRITORY.
1.02 “BUSINESS
CONCEPT” shall mean the overall use of all aspects of the granted license,
including but not limited to the Advertising Product, Know-How, Marketing
Materials, Publications and Designs and Trademarks, and other aspects of,
methodologies involved in and programs for marketing the business of providing
elementary schools free of charge with custom school take-home folders produced
by Community Alliance that display advertising by community businesses in the
LICENSED TERRITORY.
1.03 “ADVERTISING
PRODUCT”
shall mean the custom school take-home folder publications produced by Community
Alliance that display advertising by community businesses, which are provided
to
elementary schools free of charge. LICENSOR may add other advertising
products from time to time.
1.04 “KNOW-HOW”
shall
mean
the methods, skills, procedures, forms and operations developed by LICENSOR,
as
related to the ADVERTISING PRODUCT or products.
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1.05 “TRADEMARKS”
shall
mean
the name “Community Alliance” and the associated logo, together with any
trademarks that LICENSOR may add to the Business Concept in the
future.
1.06 “MARKETING
MATERIALS”
shall mean any and all of the documents provided by LICENSOR to LICENSEE for
the
purpose of LICENSEE’S contracting with schools for the provision of school
take-home folders produced by Community Alliance that display advertising by
community businesses and selling advertisements to community
businesses.
1.07 “PUBLICATIONS
AND
DESIGNS” shall mean the custom school take-home folders and related advertising
graphic design services provided by LICENSOR to LICENSEE in relation to the
ADVERTISING PRODUCT.
1.08 “TERRITORY”
shall
mean
the geographic area to which the LICENSEE shall have the exclusive license
to
operate the BUSINESS CONCEPT and use the INTELLECTUAL PROPERTY.
2. GRANT
OF
LICENSE.
2.01 LICENSOR
hereby
grants to LICENSEE the exclusive license to use the INTELLECTUAL PROPERTY only
within the LICENSED TERRITORY and nowhere else and for no other purpose, subject
to the provisions and conditions set forth in this
Agreement. LICENSOR may not grant a license or any part of the
BUSINESS CONCEPT or the use of the INTELLECTUAL PROPERTY to any other person
or
entity within or without the LICENSED TERRITORY.
2.02 LICENSEE
will not
use the INTELLECTUAL PROPERTY outside the LICENSED
TERRITORY. LICENSEE will not use the INTELLECTUAL PROPERTY except in
connection with the marketing, selling, promoting, advertising and/or
distribution of the Advertising Product or products.
3. LICENSED
TERRITORY.
3.01 The
Territory in which the license granted to the LICENSEE pursuant to this
Agreement is effective is as follows:
All
Counties and territory west of
Interstate Highway 75 in the State of Kentucky, all counties and territory
East
of Highway 24 in the State of Kentucky, all counties and territory South of
the
Northern state line of Kentucky , all counties and territory North of the state
line of Kentucky between Highway 75 and Highway 24 from the southern State
Line
of Kentucky to the Northern State Line of Kentucky. The licensed
Territory shall also include the Counties of Robertson, Sumner, Trousdales,
Xxxxxxxxxx, and Xxxxxxxx in the State of Tennessee,
4. LAWFUL
USE.
4.01 LICENSEE
represents and
warrants that advertising and promotional materials and all other materials
in
connection with which the INTELLECTUAL PROPERTY used by LICENSEE under this
Agreement shall be lawful. LICENSEE shall use diligent efforts to
provide in advance to LICENSOR copies or samples of the form of advertising,
promotional materials and other materials used in connection with the
INTELLECTUAL PROPERTY; said copies or samples to be sent to LICENSOR at its
address for notice as hereinafter specified.
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5. LICENSE
FEE.
5.01
For
use of the INTELLECTUAL PROPERTY as described in this Agreement, LICENSEE agrees
to pay to LICENSOR a license fee of ten thousand dollars ($10,000.00), on with
an initial payment of Two Thousand Dollars ($2,000.00) ( the “Initial Payment”)
to be paid with the signing of this Agreement, a second payment in the amount
of
Two Thousand Dollars ($2,000.00) to be paid on or before April 30, 2008, and
the
full balance of Six Thousand Dollars ($6,000.00) due on or before April
30, 2009.
5.02 All
payments to
be paid to LICENSOR pursuant to this Agreement shall be sent or delivered to
LICENSOR at its address for notice as hereinafter specified.
5.03 All
payments
pursuant to this Agreement shall be in United States currency.
5.04 Any
payment not
mailed by certified mail by LICENSEE to LICENSOR on or before the date on which
the payment is to be paid shall be delinquent and overdue, and, at the election
of LICENSOR, in its sole discretion, this Agreement may be considered void,
unless LICENSOR extends the due date for the required payment.
6. PUBLICATION
FEE AND
PUBLICATION OF ADVERTISING PRODUCT.
6.01
In order to maintain the best
quality control for the ADVERTISING PRODUCT or products, LICENSEE shall be
required to use the graphic design and printing services of LICENSOR for the
publication of the ADVERTISING PRODUCT or products.
6.02 LICENSEE
shall be
required to submit the graphic files in connection with any advertisement to
LICENSOR in a timely manner, but, in any event, not later than 45 days after
the
date of sale of the advertisement and not later than 30 days before the date
of
printing of the advertisement.
6.03 LICENSEE
shall
pay to LICENSOR the sum of $1,900 as a publication fee for each individual
school with which it contracts to provide the Advertising Product or
products not later than 45 days after the date of the contract and,
in any event, not later than the date of the submittal of the graphics related
to the product to the printer.
7. TRAINING.
7.01 LICENSEE may
request training from LICENSOR, which training, if agreed to by LICENSOR, shall
be determined by LICENSOR and shall be at a time mutually agreed to by LICENSEE
and LICENSOR.
7.02 LICENSEE
shall
reimburse LICENSOR for all travel-related expenses, not to exceed
$1,200. All travel-related expenses exceeding $1,200 shall be paid by
LICENSOR.
8. TERM/EXPIRATION.
8.01 The
term of this Agreement shall begin immediately upon execution of this Agreement
and shall expire sixty (60) months thereafter.
8.02 This
Agreement is subject to renewal or extension by the parties; provided, however,
any such renewal or extension must be agreed upon, in writing, at least six
(6)
months prior to the end of the initial five (5)-year term hereof and LICENSEE
has satisfied the minimum performance standards of having contracted with at
least 25 schools.
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9. TERMINATION.
9.01 LICENSOR
shall have the right to terminate this Agreement upon thirty (30) days’ written
notice to LICENSEE in the event that LICENSEE fails to contract with a minimum
of 15 schools in any given school year, with the exception of the first school
year terminating after the date of the execution of this Agreement.
9.02 LICENSOR
shall have the right to terminate this Agreement upon thirty (30) days’ written
notice to LICENSEE in the event that any breach or violation by LICENSEE of
any material provision set forth in the Agreement shall continue for a period
of
thirty (30) days following notice of such breach or violation given to
LICENSEE by LICENSOR.
9.03 Upon
the expiration or termination of this Agreement, LICENSEE will promptly
discontinue any and all use of the INTELLECTUAL PROPERTY.
9.04 Upon
the expiration or termination of this Agreement, LICENSEE will destroy and/or
delete the INTELLECTUAL PROPERTY from all of LICENSEE's publications,
stationery, business cards, promotional materials, computer hard-drives and
all
other documents related to the Advertising Product.
10. ASSIGNABILITY.
10.01 LICENSOR
shall
retain the right to assign any and all of its rights and interests in this
Agreement and the INTELLECTUAL PROPERTY, subject to the limitations set forth
herein. This Agreement shall be binding upon any such assignee as
well as upon any successor of LICENSOR in ownership or control of the
INTELLECTUAL PROPERTY. LICENSEE shall not assign or license any of its rights
under this Agreement without the prior written consent of LICENSOR, which
consent shall be given or withheld in LICENSOR's sole
discretion.
11. PROPERTY
RIGHTS.
11.01 Other
than the limited license granted herein, all right, title and interest in and
to
the INTELLECTUAL PROPERTY is owned and expressly reserved by LICENSOR for its
own use and benefit, subject to the terms and conditions of
this Agreement.
11.02 Except
as relates to the enforcement of any rights granted to LICENSEE
hereunder, LICENSEE will not at anytime challenge the validity or
enforceability of the INTELLECTUAL PROPERTY and/or of any registrations
thereof, or challenge the LICENSOR'S ownership right, title or interest in
or to
the INTELLECTUAL PROPERTY or that of any successor, assignee, affiliate or
subsidiary of LICENSOR.
12. RELATIONSHIP
OF THE PARTIES.
12.01 This
Agreement
does not create an employment, partnership, joint venture or agency relationship
between the parties, and neither LICENSEE nor LICENSOR shall have any right,
power or authority to act as a legal representative of the other, and neither
party shall have any power to obligate or bind the other, or to make any
representations, express or implied, on behalf of or in the name of the other in
any manner or for any purpose whatsoever.
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13. LIABILITY.
13.01 LICENSOR
shall have
no liability whatsoever to LICENSEE or any other person or entity for
or on account of any injury, loss or damage, of any kind or
nature, sustained by or any damage assessed or asserted against, or any other
liability incurred by or imposed upon LICENSEE or any other person or entity,
arising out of or in connection with or resulting from:
(i) the
production, marketing, distribution, use, offer for sale or sale of any
ADVERTISING PRODUCT and/or products and materials under this Agreement;
or
(ii) any
advertising or other promotional activities by LICENSEE with respect to the
ADVERTISING PRODUCT and/or products and materials under the INTELLECTUAL
PROPERTY or this Agreement.
14. INFRINGEMENT.
14.01 LICENSEE
shall immediately notify LICENSOR of any unauthorized use and/or suspected
infringement of the INTELLECTUAL PROPERTY. Such notification shall
include, without limitation, immediately forwarding to
LICENSOR any and all documents relating to any such unauthorized
use or suspected infringement and providing LICENSOR with any and all facts
and
circumstances relating to such unauthorized use or suspected
infringement.
14.02 LICENSOR
shall have the primary, and in the first instance sole, right to institute
a
suit for infringement, unfair competition or other action with respect to
any unauthorized use or suspected
infringement. LICENSOR shall have the sole discretion to determine
how to handle or otherwise deal with any infringement or unauthorized use of
the
INTELLECTUAL PROPERTY, including the right to settle or
otherwise compromise any dispute or suit, and shall promptly notify LICENSEE
of
its decision. LICENSOR shall have no duty to initiate such litigation
if, in its sole judgment, such litigation is not
warranted or is not in its best
interests.
14.03 LICENSEE
may join and be represented in, at its own expense by its own counsel, any
proceeding relating to any unauthorized use or suspected infringement to prove
its own interests.
14.04 LICENSEE
agrees that it shall, at all times, reasonably cooperate with LICENSOR and
its
counsel, in all respects, with respect to any unauthorized use or suspected
or
alleged infringement at LICENSOR's expense, including, but not limited to,
having LICENSEE's principals, directors, employees, officers and/or agents
testify, and making available any records, papers, information, specimens and
the like when requested by LICENSOR.
14.05 Any
damages and/or recovery received pursuant to such litigation or settlement
or
compromise shall be the sole and exclusive property of LICENSOR.
14.06 If
LICENSOR decides, in its discretion, not to take any action with respect to
an
unauthorized use or suspected infringement, then LICENSEE may, at its
own option and sole expense, take such action on its own behalf as it deems
appropriate and any damages, recovery, settlement or compromise obtained thereby
shall be for the account of LICENSEE.
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15. INDEMNIFICATION.
15.1 LICENSEE
agrees to defend, indemnify and hold harmless LICENSOR, its principals,
directors, officers, employees and/or agents, from and against any and all
liabilities, penalties, claims, demands, suits and causes of action of any
nature whatsoever, whether groundless or otherwise, and any and all
damages, costs and expenses sustained or incurred (including costs of
defense, settlement and reasonable attorneys' fees), asserted by or on behalf
of
any person or entity arising out of the production, marketing, distribution,
use, offer for sale or sale of any ADVERTISING PRODUCT and/or products and
materials under the INTELLECTUAL PROPERTY by LICENSEE or under this Agreement,
or out of any breach of representation or warranty by LICENSEE, or out of the
negligent acts or omissions or LICENSEE, its agents, representatives and/or
employees, in connection with the production, manufacture, distribution, use,
offer for sale or sale of any ADVERTISING PRODUCT and/or products and
materials under the INTELLECTUAL PROPERTY by LICENSEE or under this Agreement.
Further, LICENSEE must defend any such actions with counsel of its own
choosing.
15.2 LICENSOR
agrees to defend, indemnify and hold harmless LICENSEE, its principals,
directors, officers, employees, and/or agents, from and against any and all
liabilities, penalties, claims, demands, suits and causes of action of any
nature whatsoever, whether groundless or otherwise, and any and all
damages, costs and expenses sustained or incurred (including cost of
defense, settlement and reasonable attorneys' fees), asserted by or on behalf
of
any person or entity arising out of an allegation of superior rights by a third
party in and to the INTELLECTUAL PROPERTY. Further, LICENSOR may
defend any such action with counsel of its own choosing; shall have the right
to
settle or compromise any such dispute or action when, in its sole judgment,
settlement or compromise is warranted; and shall have the sole right to decide
whether to appeal any adverse decision of a tribunal in any action.
16. BEST
EFFORTS.
16.1 LICENSEE
has neither an express nor an implied duty to promote, advertise, market or
sell
the ADVERTISING PRODUCT, unless otherwise expressly provided
herein.
16.2 LICENSEE
shall use its discretionary business judgment to determine to what extent,
if
any, it shall exploit the rights granted to it under this
Agreement.
17. SEVERABILITY.
17.1 If
any part,
term or provision of this Agreement shall be found to be illegal, unenforceable
or in conflict with any valid controlling law, the validity of the remaining
portions of any provisions, and any other provisions in this Agreement, shall
not be affected thereby.
18. INTEGRATION;
ALTERATION.
18.1 Integration. This
Agreement contains the entire understanding between the parties and supersedes
all other agreements, representations and warranties, express or implied,
between the parties concerning the INTELLECTUAL PROPERTY.
18.2 Alteration. Any
modification or amendment of this Agreement shall be effective if made in
writing and signed by both parties.
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19. GOVERNING
LAW.
This
Agreement shall be construed and interpreted, and its performance shall be
governed, by the substantive laws of the State of Colorado. Any
lawsuit relating to the enforcement, interpretation or construction of this
Agreement shall be brought in a court in Denver, Colorado.
20. NOTICES.
Any
and
all notices or other writings that are required or permitted under any of the
provisions of this Agreement shall be in writing and shall be deemed
sufficiently delivered if mailed by Certified Mail, addressed to the party
concerned as follows:
(a) if
addressed to LICENSOR:
Xx.
Xxxx
X. Xxx, President
Community
Alliance, Inc.
000
Xxxxxx Xxxxx Xxxxxxx, Xxxxx x0-000
Xxxxxx
Xxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Fax: 000-000-0000
and
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(b) if
addressed to LICENSEE:
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Frontier
Digital Media, LLC
|
Attn:
Xxxxx Xxxxx
0000
Xxxxxx Xxxx Xx.
Xxxxxxx
Xxxxx, XX 00000
Phone: 000-000-0000
or
any
other addresses of which either party shall notify the other in
writing.
IN
WITNESS WHEREOF, the parties
hereto have caused this Agreement to be executed on the date first above written
as indicated below.
LICENSOR:
COMMUNITY ALLIANCE, INC.
By:
/s/ Xxxx X. Ray___________________
Title:
President_____________________
Date:
May
2,
2007__________________
LICENSEE:
FRONTIER
DIGITAL MEDIA,
LLC
By:
/s/ Xxxxxxx
Dunda___________
Title:
Manager ________________
Date:
May
2,
2007_____________
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