Exhibit 10.4
Patent License Agreement
THIS PATENT LICENSE AGREEMENT (this "Agreement") is made as of July 1,
2001 by and among Xxxx Xxxxx Xxxxx and Xxxx Xxxxx, individuals (together,
"Licensor"), and Majestic Safe-T-Products, Ltd., a Nevada corporation
("Licensee"), a wholly owned subsidiary of The Majestic Companies, Ltd., a
Nevada corporation with offices at 0000 Xxx Xxx Xxxxx Xxxxx, Xxxxx 000, Xxx
Xxxxx, Xxxxxxxxxx 00000.
WHEREAS, Licensee desires to obtain a license, and Licensor desires to
grant a license under the Licensed Patent as defined herein on the terms and
conditions specified herein;
NOW THEREFORE, in consideration of the mutual promises and undertakings
contained herein, and for other valuable consideration, the parties to this
Agreement do hereby covenant and agree as follows:
1. Definitions.
(a) "Licensed Patents" shall mean the United States patent Serial No.#5,462,324
* WO 95/28300 which discloses and claims a proprietary invention designated as
the "S-1 Gard", including without limitation all subsequent modifications and
alterations developed by Licensor or Licensee in connection with the use of the
S-1 Gard under this Agreement and all Patent Rights related thereto, and related
filings in countries outside of the United States.
(b) "Licensed Products" shall mean all products which employ, or are produced
by, the practice of inventions claimed in the Licensed Patents for use in the
school bus market, along with any and all configurations of product used in
connection with commercializing the Licensed Products for the school bus market.
Any changes to the technology embodied by the Licensed Products for use in the
school bus market shall be made with the approval of Licensor and at the cost of
Licensee. All right, title and interest to the Licensed Patent or any patents
arising out of such development or alteration in manner of use of the Licensed
Products shall be owned by Licensor and Licensee shall take all actions and
assist Licensor in securing such patents in his name and at his costs and
Licensee shall execute all instruments to secure ownership of such inventions
and related technology in the name of Licensor.
(c) "Patent Rights" shall mean any existing patents and patent applications,
including the Licensed Patent, any continuation, continuation-in-part, or
division of such listed applications, any applications based on the subject
matter of said patents or patent applications or improvements thereof, and any
patent issuing on said applications.
(d) "School Bus Retrofit Market" shall mean that certain market segment
comprised of potential buyers of the Licensed Products within the Territory,
where such Licensed Products are purchased for installation on existing school
buses already in service, which market expressly excludes any sales to the
School Bus OEM Market.
(e) "School Bus OEM Market" shall mean that certain market segment comprised of
potential buyers of the Licensed Products within the Territory, where such
Licensed Products are purchased by process of specification and ordered for
installation on new school buses by the original equipment manufacturer,
including without limitation, Xxxxxx(TM) or Bluebird(TM), but expressly
excluding any sales to the School Bus Retrofit Market.
(f) "Subcontractor Licensee" shall mean that certain manufacturer with
facilities located in the United States for the purpose of both manufacturing
the Licensed Products and performing royalty accounting duties set forth under
Section 9, such as Romeo RIM, Inc., or other vehicle parts and accessories
manufacturer of similar standing, as approved in writing by Licensor, which
manufacturer shall be awarded a limited license to manufacture Licensed
Products. The Licensee shall remain responsible for all of its duties agreed
upon in this Agreement, regardless of the award of licenses to Subcontractor
Licensee.
(g) "Technical Information" shall mean the know-how, trade secrets, technical
data, design data, drawings, test results, source code and the like, licensed by
the Licensor to the Licensee hereunder which relate uniquely to the development
of the Licensed Product for commercial distribution and sale and which are
referred to in Section 4 below.
(h) "Territory" shall mean the United States and Canada.
2. Grant.
(a) Licensor hereby grants to Licensee the exclusive right to make, use and sell
Licensed Products embodying or made in accordance with the inventions of the
Licensed Patents for manufacture and sale to the School Bus Retrofit Market, it
being understood that so long as this Agreement has not been terminated,
Licensee shall cause the Subcontractor Licensee to manufacture the Licensed
Products for sale to Licensor who retains the exclusive right to sell to the
School Bus OEM Market. Licensor hereby grants to Licensee the right to market
and sell the Licensed Products under the name SAFE-T-GARD, it being understood
that all right, title and interest in the name SAFE-T-GARD shall be owned by
Licensor and Licensee shall assist Licensor in filing, at the sole cost of
Licensor, all documents required to register such trademark in the name of
Licensor, or to transfer and assign such registration to Licensor, at the sole
cost of Licensor. Licensor hereby reserves the right to grant additional
licenses to the Licensed Patents and the Licensed Products for manufacture and
sale in markets outside of the School Bus Retrofit Market, including, without
limitation, the School Bus OEM Market, public transportation, transit and
private shuttle transportation of any kind or character.
(b) Licensor reserves the right to sell the Licensed Products in the School Bus
OEM Market and so long as this Agreement has not been terminated, Licensor shall
purchase the Licensed Products from Subcontractor Licensee at the cost charged
to Licensee by Subcontractor Licensee; provided, however, for each Licensed
Product sold by Licensor, Licensor shall pay Licensee the amount of One Hundred
and 00/100 Dollars ($100.00) as compensation for national marketing efforts
undertaken by Licensee in connection with Licensee's promotion of the Licensed
Products, and provided further, that no royalty obligation shall be owed by
Licensee to Licensor for such sales to Licensor.
(c) The Licensee shall grant a sublicense to the Subcontractor Licensee for the
manufacture of Licensed Products to be sold only in the Territory and the
following shall apply:
(i) The Licensee shall promptly inform the Licensor
of the subcontract to the Subcontractor Licensee and shall provide the
Licensor with a copy of the agreement with the Subcontractor Licensee,
and all amendments thereto, promptly after execution.
(ii) The subcontract to the Subcontractor Licensee
shall be in every respect subject to this Agreement, and the
Subcontractor Licensee shall be required, by the Subcontractor Licensee
agreement, to honor and be bound by the provisions of this Agreement as
though it were the Licensee hereunder.
(iii) The subcontract to the Subcontractor Licensee
shall provide that it will terminate if this License Agreement is
terminated.
(iv) Licensor shall have the right to purchase all
tooling used to manufacture the Licensed Products at the cost advanced
by Licensee or Subcontractor Licensee within sixty (60) days following
the date of termination of this Agreement.
3. Duties and Obligations of Licensee.
The Licensor and the Licensee understand that the Licensor has no
vested intellectual property rights in any country outside of the United States
unless individual patents are obtained in each particular country where these
rights are desired.
4. Transfer of Technical Information.
The Licensor agrees that the Licensor shall furnish to the Licensee
such Technical Information as will enable the Licensee to develop and
manufacture the Licensed Products. All Technical Information furnished hereunder
shall be used by the Licensee exclusively for the purpose of performing its
obligations under this Agreement and shall not be used for any other purpose
without the specific written approval of the Licensor.
5. Technical Realization and Commercial Exploitation.
(a) The obligations of the Licensor hereunder shall be fully discharged upon the
furnishing to Licensee of the Technical Information as herein above described.
The Licensee acknowledges that it fully understands the subject matter of the
license granted under this Agreement and has sufficient knowledge concerning the
Licensed Products to manufacture it in a manner which will render it suitable
for the particular purpose for which it is designed.
(b) The Licensor does not make any warranty that the Licensed Products is
capable of commercial exploitation and sale, the risks of such commercial
exploitation and sale being assumed exclusively by the Licensee.
(c) The Licensor agrees that, from and after the date of execution of this
Agreement and until this Agreement shall expire or be sooner terminated, the
Licensor shall not manufacture any Licensed Products, directly or indirectly.
6. Claims by Third Parties.
(a) The Licensor declares that, to the best of its knowledge, the Patent Rights
do not infringe any patent or other protection owned or controlled by persons
other than the Licensor. However, nothing in this Agreement shall be construed
as a representation or a warranty by the Licensor as to the validity of any
patent or other protection hereby agreed to be licensed or that manufacture, use
or sale of the Licensed Products will not infringe any patent or other
protection owned or controlled by persons who are not parties to this Agreement.
(b) In the event any patent infringement action is instituted against the
Licensee based upon the exercise of any of the licenses or rights granted under
this Agreement, the Licensee shall promptly notify the Licensor and the Licensor
shall thereafter, through legal counsel of its choice, defend and prosecute any
legal action which results therefrom. The parties hereto will cooperate fully in
all respects in the conduct of such litigation or any settlement negotiations.
The Licensor may not, however, without the prior written approval of the
Licensee, enter into any compromise, stipulation or other agreement of
settlement which may prejudice the Licensee's rights or obligate the Licensee to
pay any monies or other consideration to a third party.
(c) In the event any patent infringement action is instituted against the
Licensor based upon the exercise of any of the licenses or rights granted under
this Agreement, the Licensor shall promptly notify the Licensee and the Licensee
shall have the right to participate in any legal action which results therefrom.
The parties hereto will cooperate fully in all respects in the conduct of such
litigation or any settlement negotiations. The Licensor may not, however,
without the prior written approval of the Licensee, enter into any compromise,
stipulation or other agreement of settlement which may substantially affect the
Licensee's rights or obligate the Licensee to pay any monies or other
consideration to a third party.
7. Term.
(a) The term of this Agreement shall terminate on June 30, 2006 and shall be
renewed by the parties only upon the execution of a written agreement signed by
both parties or their successors, heirs or assigns, which subsequent agreement
shall be subject to the approval as to form by the respective legal counsel of
the such parties at the time of renewal.
(b) Either party shall have the right to terminate this Agreement if the other
party shall be in default of any material obligation hereunder. In such event,
the non-defaulting party may give written notice of its election to terminate
the Agreement under this Section 7(b), specifying such default; provided,
however, in the event of a non-monetary default, the defaulting party may remedy
the default within thirty (30) days after receipt of such notice to avoid
termination. In the event of a monetary default, the defaulting party may remedy
the default within seven (7) business days after receipt of such notice to avoid
termination.
(c) Upon the termination of this Agreement, the Licensee shall immediately cease
and desist from offering for sale or selling any Licensed Products parts or
manuals therefor or services relating thereto, provided, however, that the
Licensee may make sales and perform services required by contracts or agreements
entered into and effective thirty (30) calendar days before the date of
termination of this Agreement.
(d) The Licensee's obligations under this Agreement will continue until the
termination or expiration date, for whatever reason, of this Agreement. In
particular, any royalties accrued prior to the effective date of expiration or
termination, or any royalties payable as a result of sales made after the date
of expiration or termination as provided in Section 7(c) above, shall be payable
in accordance with Section 8. In addition, the Licensee's obligations under
Sections 8(a) and 8(b) shall remain in full force and effect after termination
of this Agreement for whatever reason.
(e) Provided that the Licensed Product is developed for commercial exploitation
and sale and that termination is not due to a breach or default on the part of
the Licensor under this Agreement, then upon termination or expiration of this
Agreement, for the remaining life of the Licensed Patents, or any other patents
owned by Licensor or Public Safety Transportation International Corporation
("PTS") which relate to rear wheel safety devices, the Licensee shall refrain
from making, selling or marketing in the School Bus OEM Market or the School Bus
Retrofit Market any products which utilize a physical barrier to prevent
personal injury or death from the rear wheel of a bus.
8. Royalties and Other Compensation.
(a) Minimum Base Royalty.
During the period July 1, 2001 through June 1, 2006, Licensee shall pay
Licensor a minimum base royalty due on the dates and in the amounts indicated on
Exhibit "A", which amounts correspond to respective minimum quantity of parts to
be sold by Licensee for the periods reflected on Exhibit "B".
(b) Parts Royalty.
For each Licensed Product, including replacement parts
therefor (i.e. mounting steel receiver and safety gard) relating thereto, sold
by the Licensee, Licensee shall pay a royalty to Licensor based on Licensee's
Gross Selling Price (defined below in Section 8(b)(iii)) at a rate of twenty
percent (20%); provided, however, a rate of twenty-five percent (25%) shall
apply where the Licensed Products are mandated for installation on school buses
operated within the United States and/or Canada by the respective federal
jurisdiction, or the respective state or province. For each Licensed Product
sold by Licensee in quantities which exceed the minimum quantities for the
respective periods set forth in Exhibit "B", Licensee shall pay to Licensor a
royalty based on the applicable rates set forth in this Section 8(b) and in the
following manner:
(i) For purposes of calculating the minimum parts royalty
due under this Section 8, and identifying the
applicable rate set forth in this Section 8(b), for
each of the respective periods set forth in Exhibit
"B", the actual Licensed Products sold first in time
shall be those designated as subject to the minimum
parts royalty;
(ii) No royalty payment shall be paid or required with respect to Licensed
Products, parts or manuals sold by Licensee to Licensor;
(iii) For the purpose of computing royalties under this
Agreement, Licensee's "Gross Selling Price" shall be
Licensee's gross invoice price, without deductions,
for Licensed Products and parts and manuals therefor
as packed for shipment, exclusive of transportation
costs, taxes, original equipment manufacturer
installation or retrofit by school district or their
contractor, duties and other miscellaneous changes
paid by the Licensee, regardless of whether
subsequently reimbursed by the customer; provided,
however, in computing royalties under this Agreement,
irrespective of the actual gross invoice price, for
purposes of calculating the royalty due hereunder,
the gross invoice price will be deemed to be at least
Seven Hundred and 00/100 Dollars ($700.00).
(c) Minimum Royalty Credit.
Irrespective of the number of Licensed Products sold by Licensee,
during the term of this Agreement, Licensee shall pay Licensor the minimum parts
royalty as provided in Section 8(a). In calculating the parts royalty obligation
set forth in Section 8(b), Licensee shall be given a quantity credit for all
current and prior payments of minimum base royalty paid to Licensor until such
quantities have been fully applied against current sales of the Licensed
Products. For instance, in year three of the Agreement, if Licensee has paid
minimum base royalties on parts totaling 500, plus 1,000, plus 4,000 or 5,500
parts and Licensee's cumulative sales through the end of year three of the
Agreement total 7,000 parts, then Licensee's parts royalty obligation for year
three of the Agreement shall apply only to 1,500 parts.
(d) Additional Royalty Amounts Due.
Upon Licensor's receipt of the quarterly reports prepared by
Subcontractor Licensee, as required under Section 9, Licensee shall pay Licensor
on or before thirty (30) days following Licensor's receipt of such report any
additional royalty amounts due based on sales of Licensed Products where the
actual applicable royalty rate is twenty-five percent (25%).
(e) Stock Compensation.
Upon execution of this Agreement, Licensee shall transfer to Licensor
the shares of stock identified in Exhibit "C" and Exhibit "D", respectively.
9. Royalty Accounting.
(a) Within thirty (30) days after the expiration of each three (3) month period
("Quarter"), the Subcontractor Licensee shall deliver to the Licensor a true and
accurate report in writing, giving such particulars of the business conducted by
the Licensee during the preceding Quarter as are pertinent to any accounting for
any such royalties under this Agreement.
(b) Subcontractor Licensee shall pay Licensor directly by bank draft, payable in
U.S. currency and delivered to Licensor as shall be designated in writing by the
Licensor within thirty (30) days of the date payment is received from Licensee's
customer.
(c) Unless otherwise directed by Licensor, all payments due under this
Agreement shall be made payable to PTS and mailed to the following address:
Mr. Xxxx Xxxxx, President
Public Transportation Safety International Corporation
000 Xxxx 0xx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(d) Licensee shall require Subcontractor Licensee to agree in writing to keep
records showing the quantity, description and total gross selling price of all
Licensed Products and parts and manuals therefor that have been sold or
otherwise disposed of and such other related information in sufficient detail to
enable the compensation payable hereunder by Subcontractor Licensee to be
determined. Licensee shall require Subcontractor Licensee in writing to permit
its books and records to be examined from time to time by an outside auditor
selected by Licensor, at Licensor's expense, to verify the reports provided for
in Section 9(a). Licensor hereby agrees to pay the reasonable administrative and
accounting fees associated with the payment and record keeping requirements set
forth in this Section 9.
(e) Licensee shall permit its books and records to be examined from time to time
by an outside auditor selected by Licensor, at Licensor's expense, to verify
compliance with this Agreement.
(f) For any period during which a minimum royalty payment is due and sales for
such period are less than the required quantity, then Licensee shall pay
Licensor directly by bank draft, payable in U.S. currency and delivered to the
address indicated in Section 9(c), unless otherwise directed in writing by
Licensor.
10. Assignment.
This Agreement shall be binding upon and inure to the benefit of the
successors, heirs and assigns of the parties to this Agreement and may be
assigned or transferred; provided however, the assigning party shall remain
liable for all obligations and duties under this Agreement. Licensee hereby
acknowledges that Licensor may assign all right, title and interest in this
Agreement to PTS and Licensee hereby consents to such assignment.
11. Ownership of Licensed Patent.
Licensee hereby acknowledges that Licensor is the true owners of the
Licensed Patent and hereby agrees that any claim of ownership or interest to the
Licensed Patent and any technology developed by Licensee related to the Licensed
Patent or the Licensed Products, other than the limited license granted under
this Agreement shall result in an immediate termination of this Agreement and a
forfeiture of rights and benefits under this Agreement and Licensor shall have
no further obligation of any kind by Licensor and Licensor reserves all rights
of action against Licensee related to such claim.
12. Warranty and Representations.
Licensor warrants and represents that it has the legal right to grant
the license set forth herein.
13. Patent Markings.
The Licensee agrees to xxxx, and to cause its sublicensees to xxxx,
such notices of patents, patent applications, and other proprietary rights on
documentation and packaging for the Licensed Products made and/or sold by the
Licensee as are appropriate to protect the Licensor's intellectual property
rights. The contents of such notices shall be designated by the Licensor,
subject to the consent of the Licensee which shall not be unreasonably delayed
or withheld. The Licensed Product will have, at the option of the Licensor and
subject to the reasonable approval of the Licensee and its sublicensees with
respect to size and placement, either (a) a notice stating that the Licensed
Product was made with the Licensor's technology or (b) a designated trademark of
the Licensor.
14. Quality.
(a) The Licensee agrees that all Licensed Products shall be manufactured only
subject to a written agreement between Licensee and Subcontractor Licensee and
all Licensed Products manufactured under such agreement shall be of the
standards of quality and reliability required by applicable laws and regulations
pertaining to the Licensed Products.
(b) The representatives of the Licensor and/or the Licensor shall have the
right, in conjunction with representatives of the Licensee and during reasonable
business hours, to inspect the assembly and/or manufacturing facilities of the
Subcontractor Licensee relating to the Licensed Products and the Licensor shall
have the right to test the Licensed Products at Licensor's expense on the
premises of the Subcontractor Licensee or in other facilities of its own
selection.
15. Indemnity.
In the event that any claims, demands or lawsuits are made or brought
against Licensor, or PTS, related to the Licensed Products, Licensee shall hold
Licensor and PTS free and harmless, defend all actions brought against Licensor
and PTS, pay all costs of any lawsuit, including attorney's fees, and indemnify
and hold harmless Licensor and PTS for any costs incurred by Licensor in
connection therewith. In the event of any claim, threatened claim, or
notification of either which may be the subject of indemnification provided for
in this Section, Licensor will give Licensee prompt written notification thereof
and provide Licensee such reasonable assistance in the response and prosecution
of any defense as Licensor may request, at Licensee's expense. The provisions of
this Section and the indemnity herewith shall survive any termination of this
Agreement and any performance hereunder. Rights of indemnification provided
herein are in addition to any other rights to indemnification which may be
provided or allowed by law.
16. Insurance.
(a) The Licensee shall be responsible for obtaining and maintaining in full
force and effect workers' compensation, employers' liability, business
automobile liability, umbrella liability, and commercial general liability
insurance pursuant to the requirements of this Section hereinafter set forth and
any other requirements contained herein. The Licensee shall comply with all
state and local insurance statutes and regulations. The Licensee's commercial
general liability and umbrella insurance policies shall include contractual
liability, with limits of not less than the amounts specified below, and shall
include all defense costs, including, but not limited to, attorneys' fees, court
costs, and other similar costs and expenses. It is understood and agreed that
any insurance limits shall not be construed as a limitation on the Licensee's
liability. The policies shall provide coverage for any liability the Licensee
(including its employees, agents, invitees, contractors and subcontractors) may
have for bodily injury or death, personal and advertising injury, or property
damage. The Licensor, including the divisions, subsidiaries, parent and
corporate affiliates of PTS, and its owner, shareholders, officers, directors,
employees, and agents shall be included as "additional insureds" under all
insurance policies provided by the Licensee, if requested by the Licensor, and
each policy shall provide a waiver of subrogation. The Licensor shall not be
deemed to fall within the definition of "an Insured" for purposes of any bodily
injury to employee exclusions that may exist within the Licensee's policy, and
the Licensee will provide an endorsement to this effect. All insurance
maintained by Licensee shall be primary to any which may otherwise be available
to the Licensor. All insurance required hereunder shall be obtained through
insurers reasonably satisfactory to the Licensor.
(b) If at any time the Licensee fails to obtain insurance (or provide proof of
insurance) in accordance with this Agreement, or otherwise required by the
Licensor, the Licensor may obtain the coverage specified in this Agreement and
charge all associated premiums and costs to the Licensee. The Licensee shall
reimburse the Licensor the cost thereof within fifteen (15) days of receipt of
notice from the Licensor. The Licensee agrees to maintain the following minimum
limits of insurance:
Workers' Compensation and Employers' Liability Limits:
Workers' Compensation: Statutory Limits
Employers' Liability: $1,000,000
Commercial General Liability: (Commercial General Liability Form ISO
1988 or equivalent), including Contractual Liability and Products and
Completed Operations, on an occurrence form for bodily injury and
personal injury or property damage Limits:
Bodily Injury & Property Damage per occurrence: $1,000,000
Personal Injury & Advertising Injury per occurrence: $1,000,000
Products/Completed Operations Aggregate: $1,000,000
General Aggregate per location: $2,000,000
Intellectual Property Liability $ 500,000
Umbrella Liability: Liability coverage attaching excess of Commercial
General Liability, Automobile Liability, and Employers' Liability policies
Limits:
Per Claim: $3,000,000
(c) The Licensee shall obtain and maintain its own expense, commencing at least
thirty (30) days prior to the date of commencement of distribution of the
Licensed Products, product liability insurance, naming the Licensor as an
insured party, from a qualified insurance carrier in an amount and containing
provisions reasonably acceptable to the Licensor, which, as to amount, the
Licensor agrees initially shall be Three Million Dollars ($3,000,000), for
personal injury and for property damage. This policy shall specify that it may
not be cancelled by the insurer except after thirty (30) days prior written
notice by the insurer tot he Licensor. The Licensee shall provide a copy of the
policy to the Licensor before selling or distributing any Licensed Products and
whenever the policy is modified, renewed or replaced thereafter.
(c) The Licensee shall provide a certificate of insurance as evidence of all
insurance policies satisfying the terms and minimum limits specified above. The
Licensee shall cause its insurer to provide thirty (30) days prior written
notice to Licensor of cancellation of, or any material change in, coverage and
the certificate shall provide for such notice.
(d) The Licensee shall be responsible for obtaining and maintaining in full
force and effect patent infringement insurance during the term of this
Agreement, except for the initial twenty-four (24) months during which period
Licensee shall be self-insured.
17. Covenants of the Parties.
(a) Neither party shall be obligated to disclose to the other party any
proprietary information of a third party without the consent of such third
party, nor any information the furnishing of which would require the payment of
consideration to a third party other than an employee of the party furnishing
the information.
(b) Neither party shall be obligated to disclose to the other party any
information which its government does not permit to be disclosed.
(c) Each Party will use reasonable efforts to perform its obligations under this
Agreement, but shall, except for Licensee's obligation to make any payment of
money under this Agreement, be excused for failure to perform or for delay in
performance hereunder due to (1) causes beyond its reasonable control or (2)
acts of God, acts of the other Party or its contractors, acts of civil or
military authorities (including the Governments of Canada and the United States
and political subdivisions thereof), U.S. Government priorities, fires, strikes,
floods, epidemics, war, riot, delays in transportation, or (3) causes beyond its
reasonable control to obtain necessary labor or materials.
18. Confidentiality.
(a) All Technical Information furnished by the Licensor to the Licensee pursuant
to this Agreement shall be treated as confidential by the Licensee, even after
the expiration or earlier termination of this Agreement. The Licensee shall take
all necessary steps to prevent disclosure of any and all such Technical
Information. With the prior consent of the Licensor, the Licensee shall have the
right to disclose to subcontractors such Technical Information as is necessary
but only if a confidentiality agreement substantially in acceptable form to the
Licensor, shall have been executed by such subcontractor in accordance with this
Section.
(b) All Technical Information provided by the Licensor to the Licensee under
this Agreement, as well as any copies or translations thereof made by the
Licensee, shall remain the property of the Licensor and shall be returned by the
Licensee within thirty (30) days from the date of termination or expiration of
this Agreement. At the discretion of the Licensor, the Technical Information
shall be destroyed by the Licensee upon termination or expiration of this
Agreement when so requested by the Licensor, whereupon the Licensee shall
destroy the Technical Information within thirty (30) days from its receipt of
such request and thereafter promptly provide a written certification to the
Licensor that all Technical Information has been destroyed.
19. Warranty and Limitation of Liability.
(a) The Licensor represents to the Licensee that the Technical Information
furnished pursuant to this Agreement will correspond to the Technical
Information used by the Licensor.
(b) The Licensor makes no express warranty, and no warranty shall be implied,
with respect to any Technical Information furnished by it under this Agreement.
It is agreed that the Licensor shall not be liable, whether in contract, tort or
otherwise, nor in any way responsible for:
(i) The accuracy, utility, or adequacy of any Technical Information
furnished or disclosed by it in connection with this Agreement, or
(ii) The performance of products manufactured or repaired or overhauled by
Licensee on the basis of any Technical Information furnished in connection
with this Agreement.
(c) Each party shall be responsible for the safety of its own employees and
agents with respect to the handling or use of compounds, materials, and
equipment involved in this Agreement. The Licensor makes no representations,
extends no warranties of any kind, either express or implied, and assumes no
responsibility whatever with respect to use, sale, or other disposition by the
Licensee or its vendees or other transferees of the Licensed Product. The
Licensor shall not be liable for any loss, expense, claim, or damages arising
out of or relating to the practice or use of any licensed technology in the
design, construction, and operation of a facility manufacturing or handling the
Licensed Products or in the use or sale of the Licensed Products produced in
such facility.
(d) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL,
SPECIAL, CONSEQUENTIAL, OR INDIRECT DAMAGES OF ANY NATURE WHATSOEVER ARISING
FROM THE PERFORMANCE OR FAILURE TO PERFORM OF EITHER PARTY HEREUNDER, OR THE
PERFORMANCE OR FAILURE TO PERFORM OF ANY GOODS DELIVERED UNDER THIS AGREEMENT,
WHETHER DUE TO BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR OTHERWISE
EXCEPT AS A RESULT OF SUCH PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE.
20. Technical Assistance.
(a) Xxxx Xxxxx shall provide certain technical support, assistance and training
to the individuals designated by Licensee as the technical persons engaged to
handle the manufacture and installation of the Licensed Products (the "Licensee
Technician") as provided in Sections 20(b) and 20(c) in this Agreement.
(b) During the ninety (90) day period following execution of this Agreement, at
mutually convenient times and in locations designated by Xxxx Xxxxx within the
Los Angeles and San Diego, California areas, Licensor shall devote such time as
Xxxx Xxxxx deems reasonable to assist the Licensee Technicians in the techniques
of inspecting and mounting the S-1 Gard on school buses, along with technical
guidance and commentary on research, development and modification of the S-1
Gard for use on school buses. In no event shall Xxxx Xxxxx be required to
perform technical assistance for more than ten (10) hours in any one (1) week
period.
(c) All transportation, meals or lodging expenses to be incurred by Xxxx Xxxxx
related to technical assistance to be performed outside of the Los Angeles or
San Diego areas shall be paid in advance by Licensee and agreed to in writing
prior to the performance of services by Xxxx Xxxxx.
21. Applicable Law and Jurisdiction.
This Agreement and performance hereunder shall be governed by and
construed in accordance with the laws of the State of California. Any and all
proceedings relating to the subject matter hereof shall be maintained in the
courts of the State of California or the Federal district courts sitting in
California, which courts shall have exclusive jurisdiction for such purpose.
22. Attorneys Fees.
In the event of litigation of any provision related to this Agreement,
court costs and reasonable attorneys fees shall be paid to the prevailing
party.
23. Enforceability.
If any provision of this Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.
24. Entire Agreement.
This Agreements and the Exhibits attached hereto contain the entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior agreements and undertakings between the
parties relating to the subject matter hereof and thereof.
25. Amendments and Waivers.
All amendments and other modifications hereof shall be in writing and
signed by each of the parties hereto and shall be subject to the approval as to
form by the respective legal counsel of the such parties at the time of
amendment or modification. The failure of either party to exercise in any
respect any right provided for herein shall not be deemed a waiver of any right
hereunder.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as of
the date first written above.
MAJESTIC SAFE-T-PRODUCTS, LTD.,
a Nevada corporation, a wholly owned subsidiary
of THE MAJESTIC COMPANIES, LTD.,
a Nevada corporation
By: /s/ Xxxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
President & COO Xxxxxx X. Xxxxxxxxx, President & COO
Name: Xxxx Xxxxx /s/ Xxxx Xxxxx Xxxxx
Title: President Xxxx Xxxxx Xxxxx, an individual
By: Xxxx Xxxxx
------------------------
Name:/s/ Xxxx Xxxxx /s/ Xxxx Xxxxx
------------------------- -------------------------
Title: Secretary Xxxx Xxxxx, an individual
