Contract
Exhibit
10.2
This
Amended and Restated Master License Agreement (this “Agreement”) is made the [ ]
day of November, 2006 between Sea
Sun
Capital Corporation, a Delaware corporation (the “Licensor”) and Sea
Sun
Enterprises Incorporated, a
Barbados corporation (the “Licensee”).
WHEREAS,
the Licensor is the owner of the Intellectual Property identified in Schedule
A
hereto; and
WHEREAS,
the Licensor has developed a business operating model for establishment and
operation of business outlets in warm weather tourist destination locations
which offer and sell Eco-Tours to consumers and others using the Licensor’s
SEA
SPI ITM,
SEA
SPI IITM and
other
watercraft developed and to be developed by the Licensor (the
“Business”);
and
WHEREAS,
the Licensor and the Licensee entered into a Master License Agreement made
as of
the 29th day of June, 2006 (the “Original Agreement”) pertaining to Licensee’s
use of the Intellectual Property in connection with its operation of the
Business; and
WHEREAS,
the Licensor and the Licensee desire to amend and restate the Original Agreement
in the manner and to the extent provided herein,
NOW,
THEREFORE, inconsideration of the foregoing, and the mutual terms and provisions
hereinbelow set forth, it is agreed, as follows:
1. Definitions.
In this
Agreement the following terms shall have the following meanings:
(a) Agreement
has the
meaning attributed thereto in the preamble.
(b) Confidential
Information has
the
meaning attributable thereto in Section 10(b).
(c) Cruise
Line
means
any owner or operator of a fleet of cruise ships that convey passengers to
warm
water ocean destinations, e.g.,
Carnival Cruise Lines, Royal Caribbean Cruises Ltd. and Norwegian Cruise
Line.
(d) Eco-Tour
means a
supervised ecologically friendly excursion by a consumer or other customer
of a
Partner Association member, the Licensee or a Water Sports Operator on a
SEA
SPI I
or
SEA
SPI II.
(e) Intellectual
Property means
all
trademarks (including the name “Sea Sun”), patents, copyrights and/or
applications for trademarks, patents and copyrights, reissues, modifications,
divisions and extensions thereof which are now held or hereafter acquired by
the
Licensor in any and all jurisdictions in connection with the Business all as
more particularly described and set forth in Schedule “A” annexed
hereto.
(f) Licensee
Financed Location
means a
Location which has been established by the Licensee without any
Licensor-provided financing and for which the Licensor has not paid any Set-Up
Fee to the Licensee.
(g) Licensor
Financed Location
means a
Location which has been established by the Licensee with Licensor-provided
financing and/or for which the Licensor has paid a Set-Up Fee to the
Licensee.
(h) Licensor’s
Trademarks has
the
meaning attributable thereto in Section 6(b).
(i) Location
means an
Eco-Tour business operating outlet approved by the Licensor at which a Partner
Association, the Licensee or a Water Sports Operator offers and sell Eco-Tours
to consumers.
(j) Location
Agreement Effective Date
means
the date specified as such in the Location Agreement or, if no such date is
specified, the date when sales of Eco-Tours are first offered to the public
at
the Location in question.
(k) Location
Agreement Initial Term
has the
meaning attributable thereto in Section 5(d)(i)(1).
(l) Location
Agreement Renewal Term
has the
meaning attributable thereto in Section 5(d)(i)(2).
(m) Location
Agreement Term
means
the Location Agreement Initial Term together with all Location Agreement Renewal
Terms.
(n) Loss
has
the
meaning attributable thereto in Section 8(a).
(o) Partner
Organization
means
any business entity, association or other organization with whom the Licensor
has entered into an agreement providing for the rental of Sea
Spi I
and/or
Sea
Spi II
watercraft by the Licensor to the members, owners, partners, associates or
affiliates thereof, e.g.,
The
Professional Association of Diving Instructors.
(p) Renewal
Term
has the
meaning attributable thereto in Section 9(b).
(q) Replacement
License
has the
meaning attributable thereto in Section 5(d)(vi).
(r) Set-Up
Fee
means
the amount payable by the Licensor to the Licensee for trailers and dollies,
boat storage facilities, signage, brochures, initial marketing and miscellaneous
items in order to prepare a Location for commencement of
operations.
(s) Sea
Spi I and Sea Spi II
means
the electrically powered personal watercraft bearing such names which are
manufactured, distributed and sold by the Licensor.
(t) Term
has the
meaning attributable thereto in Section 9(a).
(u) Water
Sports Operator
means a
person or business entity which has entered into a sublicense or other contract
with the Licensee to offer and sell Eco-Tours at one or more
Locations.
2. Grant
of Rights
(a) Licensing
and Sublicensing.
Subject
to the provisions of this Agreement, the Licensor hereby grants to the
Licensee:
(i) the
exclusive, non-transferable, worldwide right and license to operate the Business
at Locations approved by the Licensor and to use the Intellectual Property
in
connection therewith; and
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(ii) the
right
and license to enter into sublicenses with Water Sports Operators, in the form
annexed hereto as Schedule B, regarding the operation of the Business and use
of
the Intellectual Property at specified Locations in accordance with the terms
and provisions thereof.
(b) Exclusions.
The
rights and licenses granted herein are subject to the following exclusions
and
reservations:
(i) Personal
Watercraft Sales.
The
licenses conferred under this Agreement shall not prohibit the Licensor from
selling Sea
Spi I
and/or
Sea
Spi II
watercraft to Cruise Lines or any other person or entity, provided,
that,
such
purchasers shall not employ such watercraft in connection with the offer and
sale of Eco-Tours.
(ii) Partner
Organizations.
The
licenses conferred under this Agreement shall not prohibit the Licensor from
renting Sea
Spi I
and/or
Sea
Spi II
watercraft to the members, owners, partners, associates or affiliates of any
Partner Organization, provided,
that,
the
party renting such watercraft shall not employ them in connection with the
offer
and sale of Eco-Tours.
3. Licensor’s
Responsibilities.
(a) Manufacture
and Delivery of Watercraft.
The
Licensor shall cause reputable watercraft manufacturers to manufacture
Sea
Spi I
and
Sea
Spi II
watercraft in sufficient quantities to provide for the needs of each Location.
The Licensor shall deliver, or shall cause such manufacturers to deliver the
watercraft to their assigned Locations.
(b) Training
and Assistance Regarding the Business.
The
Licensor shall furnish training to the Licensee with regard to the operation
of
the Business. The Licensor shall advise the Licensee from time to time regarding
the operation of the Business at the Locations. In addition, the Licensor shall
furnish guidance to the Licensee with respect to:
(i) standards,
specifications and operating procedures and methods to be utilized by the
Licensee and its sublicensees in connection with the conduct of the Business
at
the Locations;
(ii) purchasing
products, equipment, signs, materials and supplies to be employed in the
operation of the business; and
(iii) advertising
and marketing programs.
(c) Protection
of Intellectual Property.
The
Licensor shall take such actions as it deems necessary and advisable to protect
and enforce its interests in the Intellectual Property.
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4. Licensee’s
Responsibilities.
(a) General.
The
Licensee shall use its best efforts to promote the Business at each Location.
(b) Identification
of Suitable Locations.
The
Licensee shall perform such actions as shall be reasonably necessary to
determine suitable venues for the establishment of Locations throughout the
world.
(c) Staffing.
The
Licensee shall hire, train and properly supervise a staff of area managers
and
other personnel who shall be responsible for:
(i) identifying
suitable Location venues;
(ii) identifying
Water Sports Operators to operate the Business and offer and sell Eco-Tours
at
various Locations as Licensee’s sublicensees;
(iii) providing
suitable training to Water Sports Operators and their personnel with regard
to
the operation of the Business at, and the maintenance of the Sea
Spi I
and
Sea
Spi II
watercraft assigned to, each Location; and
(iv) undertaking
to create, acquire and provide initial marketing programs and materials at
each
Location, and/or supervising the efforts of third party providers of marketing
materials and services, in connection with their provision of such initial
marketing programs.
(d) Coordination
of Equipment Delivery.
The
Licensee shall coordinate with the Licensor in connection with the transport
and
delivery of the Sea
Spi I
and
Sea
Spi II
watercraft to be operated at each Location.
(e) Delivery
of Products and Materials.
The
Licensee shall be responsible for the delivery of all products and materials
to
be employed in connection with the operation of the Business at each
Location.
(f) Equipment
Maintenance.
The
Licensee shall use its best efforts to maintain, or to cause its sublicensees
to
maintain, all Sea
Spi I
and
Sea
Spi II
watercraft in proper working condition.
5. Location
Agreements.
Each
Location shall be operated by the Licensee or by a Water Sports Operator who
has
entered into a sublicense pertaining to its operation thereof. The terms,
covenants and conditions pertaining to the operation of each Location shall
be
governed by the terms of this Section 5
and by
the specific terms of the Location Agreement to be executed by the Licensor
and
the Licensee with respect to such Location. Each such Location Agreement shall
be in the form annexed hereto as Schedule C, and to the extent that any of
the
terms set forth in a Location Agreement shall conflict with the terms set forth
in this Section 5,
the
terms of the Location Agreement shall govern the resolution of such
conflict.
(a) Location
Approval and Start-Up Costs.
No
Location proposed by the Licensee shall be established unless and until the
Licensor accepts such proposal. All Locations that Licensor, upon its own
initiative, decides to establish, or that the Licensee proposes and the Licensor
accepts, shall be Licensor Financed Locations, unless the Location Agreement
provides otherwise.
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(b) Licensor
Financed Locations.
(i) Set-Up
Fee.
The
Licensor shall pay a Set-Up Fee to the Licensee with regard to each Licensor
Financed Location. The amount of the Set-Up Fee shall be $35,000 per Location
unless otherwise specified in the Location Agreement.
(ii) License
Fee.
In
consideration of the licenses granted to the Licensee hereby, during the
Location Agreement Initial Term set forth in the Location Agreement, unless
otherwise provided therein, the Licensee shall pay a monthly license fee to
the
Licensor of $275 for each Sea
Spi I
and $550
for each Sea
Spi II
assigned
to a Location. All such payments shall be made on the first day of each month
of
the Location Agreement Initial Term any Location Agreement Renewal Term by
wire
transfer of immediately available funds to such bank account as may be
designated by the Licensor. In the event that a Location Agreement provides
for
any renewal thereof, the amount of the monthly licensee fee to be paid during
any such Location Agreement Renewal Term shall be determined in the manner
provided in the Location Agreement.
(iii) Boat
Rental Fee.
In
consideration for the Licensee’s use, either directly, or through a Water Sports
Operator sublicensee, of the Sea
Spi I
and
Sea
Spi II
watercraft assigned to a Location, during the Location Agreement Initial Term
set forth in the Location Agreement, unless otherwise provided therein, the
Licensee shall pay a boat rental fee to the Licensor of $400 for each
Sea
Spi I
and $800
for each Sea
Spi II
assigned
to a Location. All such payments shall be made on the first day of each month
of
the Location Agreement Initial Term any Location Agreement Renewal Term by
wire
transfer of immediately available funds to such bank account as may be
designated by the Licensor. In the event that a Location Agreement provides
for
any renewal thereof, the amount of the boat rental fee to be paid during any
such Location Agreement Renewal Term shall be determined in the manner provided
in the Location Agreement.
(c) Licensee
Financed Locations.
(i) Set-Up
Financing.
In the
event that a Location Agreement provides that the Location in question shall
be
a Licensee Financed Location, the Licensee shall be responsible for the payment
or financing the costs of all for trailers and dollies, boat storage facilities,
signage, brochures, initial marketing and miscellaneous items in order to
prepare a Location for commencement of operations.
(ii) One-Time
License Fee.
In
consideration of the licenses granted to he Licensee hereby, unless otherwise
provided in the Location Agreement: (1) the Licensee shall pay a one-time only
license fee to the Licensor of $14,375 for each Sea
Spi I
and
$28,750 for each Sea
Spi II
assigned
to a Location; and (2) the payment of such fee shall be made on or before the
date of delivery of the watercraft to the Location by wire transfer of
immediately available funds to such bank account as may be designated by the
Licensor.
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(iii) Boat
Rental Fee.
In
consideration for the Licensee’s use, either directly, or through a Water Sports
Operator sublicensee, of the Sea
Spi I
and
Sea
Spi II
watercraft assigned to a Location, during the Location Agreement Initial Term
set forth in the Location Agreement, unless otherwise provided therein, the
Licensee shall pay a boat rental fee to the Licensor of $400 for each
Sea
Spi I
and $800
for each Sea
Spi II
assigned
to a Location. All such payments shall be made on the first day of each month
of
the Location Agreement Initial Term and any Location Agreement Renewal Term
by
wire transfer of immediately available funds to such bank account as may be
designated by the Licensor. In the event that a Location Agreement provides
for
any renewal thereof, the amount of the boat rental fee to be paid during any
such Location Agreement Renewal Term shall be determined in the manner provided
in the Location Agreement.
(d) General
Terms Applicable to Each Location Agreement.
(i) Initial
and Location Agreement Renewal Terms.
Unless
the Location Agreement otherwise provides:
(1) the
initial term of each Location Agreement shall commence on the Location Agreement
Effective Date and shall end on the fifth anniversary of the Location Agreement
Effective Date (the “Location Agreement Initial Term”);
and
(2) each
Location Agreement shall be automatically renewed for additional periods of
one
year (each, a “Location Agreement Renewal Term”) commencing on the first
anniversary of the Location Agreement Effective Date, and on the anniversary
of
the date of commencement of the then current Location Agreement Renewal Term,
as
the case may be, unless either party gives notice to the other of its intention
not to renew the Location Agreement beyond the end of the initial term or the
then current Location Agreement Renewal Term, as the case may be.
No such
notice shall be effective unless given not later than six months prior to the
Location Agreement Initial Term or the then current Location Agreement Renewal
Term, as the case may be.
(ii) Conditional
Limitation on Length of Term.
Each
Location Agreement shall provide that, not withstanding any contrary provision
contained therein, the Location Agreement Term thereof shall not extend beyond
the date when this Agreement shall expire.
(iii) Insurance.
In
addition to such insurance coverages as the Licensee may maintain for itself
at
each Location, the Licensee shall secure and keep in full force and effect
throughout the Location Agreement Term, at its expense: (1) comprehensive
general liability insurance, written on an occurrence basis, to afford
protection of no less than $5,000,000 combined single limit for bodily injury
and property damage including personal injury coverage at each Location; and
(2)
equipment rental, fire and theft insurance providing replacement value coverage
for each Sea
Spi I
and
Sea
Spi II
assigned
to each Location in the respective amounts of $2,500 and $4,500. The Licensee
shall have the right to insure and maintain the insurance coverages set forth
in
this Section under blanket or umbrella insurance policies covering other
Locations so long as such blanket or umbrella policies comply as to terms and
amounts with the insurance provisions set forth in this Section without the
possibility of reduction or coinsurance by reason of, or damage to person,
property or equipment any other Locations named therein. If the insurance
required by this Section shall be effected by any such blanket or umbrella
policies, the Licensee shall furnish to the Licensor certified copies or
duplicate originals of such policies or executed certificates thereof, with
schedules thereto attached showing the insurance afforded by such policies
applicable to the Locations. All such insurance shall be written in form and
substance reasonably satisfactory to the Licensor by an insurance company and
with general policy holder’s ratings of not less than A and a financial rating
of at least VII, as rated in the most current available “Best’s” insurance
reports, or the then equivalent thereof. All such insurance shall have a term
of
not less that one year. Upon failure of the Licensee to procure, maintain and
place such insurance and pay all premiums and charges therefor, the Licensor
may
(but shall not be obligated to) do so and in such event the Licensee shall
pay
the amount thereof to the Licensor within five business days after demand.
All
policies of insurance procured by the Licensee shall contain endorsements
providing that a) the Licensor shall be named as an additional insured
thereunder to the extent that its interests may bear; b) such policies may
not
be canceled, allowed to lapse or materially changed without at least 30 days’
prior written notice from the insurance company to the Licensor; and c) the
Licensee shall be solely responsible for the payment of premiums therefor
notwithstanding that the Licensor is named as an additional insured. Duly
executed certificates of insurance or, original policies, together with
reasonably satisfactory evidence of payment of the premiums therefor, shall
be
delivered to the Licensor on or before the Location Agreement Commencement
Date
pertaining to each Location. Evidence of all endorsements to any such policies
shall also be so delivered to the Licensor upon issuance thereof and evidence
of
each renewal or replacement of a policy shall be delivered to the Licensor
at
least 20 days prior to the expiration of such policy. The obligation to provide
insurance pursuant to this Section may be satisfied by naming the Licensor
as an
additional insured under one or more existing policies of insurance, including,
without limitation, policies of insurance obtained by sublicensees, with
coverage limits in conformity herewith and providing the Licensor with a
certificate of insurance to that effect.
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(iv) Maintenance.
The
Licensee shall be responsible for maintaining, or causing reputable third party
providers of watercraft maintenance services to maintain, the Sea
Spi I
and
Sea
Spi II
watercraft assigned to each Location.
(v) Termination.
The
Licensor shall have the right to terminate any Location Agreement in the event
that the Licensee:
(1) fails
to
pay when due any boat rental fee, license fee or other amount due and owing
thereunder; or
(2) fails
to
remedy a failure to comply with any other obligation due and owing thereunder
after Licensor shall give notice of Licensee’s failure to so comply and of
Licensor’s intention to terminate the Location Agreement if such failure of
compliance is not remedied within 10 days after Licensee’s receipt of such
notice.
(vi) Effects
of Termination.
Upon
termination of a Location Agreement, the sublicense between the Licensee and
any
Water Sports Operator who had been conducting the Business at the subject
Location shall also terminate. Licensor may, if it elects to do so, enter into
a
new Location Agreement with that Water Sports Operator (a “Replacement
License”). If the Licensor elects not to enter into a Replacement License, the
Licensee shall return forthwith to the Licensor all Sea
Spi
watercraft in the possession of the Licensee and/or the Water Sports Operator
at
such Location, and shall account to the Licensor for any and all Eco-Tour sales
to the date of termination and shall pay the applicable boat rental and
licensing fees within 10 days of the date of such termination.
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6. Licensor’s
Intellectual Property
(a) Intellectual
Property Ownership.
All use
of the Intellectual Property pursuant to this Agreement by the Licensee and
its
sublicensees will inure to the benefit of the Licensor. The Licensee recognizes
the great value of the Intellectual Property to the Licensor, and neither the
Licensee nor its sublicensees, during the Term of this Agreement or thereafter,
will attack the Licensor’s title in and to the Intellectual Property in any
jurisdiction or attack the validity of this license or any sublicense under
it.
(b) Trademark
Display and Marking.
The
Licensee and its sublicensees will display all of the Licensor’s registered and
unregistered trademarks identified on Schedule A (the “Licensor’s Trademarks”)
only in such form and manner as are permitted by law. The Licensee shall, and
shall use reasonably commercial efforts to cause its sublicensees, to cause
to
appear on all advertising, promotional and display materials, and on all
stationery and transaction documents displaying Licensor’s Trademarks such
legends, markings and notices as may be legally required in each Location’s
jurisdiction as the Licensor may reasonably request.
(c) Prohibited
Trademark Uses.
The
Licensee will not use the Licensor’s Trademarks, and shall use all commercially
reasonable efforts to assure that its sublicensees do not use the Licensor’s
Trademarks, (i) as part of a trademark combining the Licensor’s Trademarks with
another xxxx (except with Licensor’s prior consent), (ii) as a corporate name,
trade name or any other designation to identify the Licensee or its sublicensee,
or (iii) in any manner other than as a trademark.
(d) Quality
Control Procedures - Advertising Materials.
The
Licensee shall cause its sublicensees to periodically submit to the Licensee,
and the Licensee shall periodically submit to the Licensor, copies of all
advertising and promotional and display material, and all stationery and
transaction documents employed by the Licensee and its sublicensees, which
display any of the Licensor’s Trademarks, and Licensee shall, and shall cause
its sublicensees, to discontinue the use of any such materials which do not
satisfy the requirements set forth in this Agreement.
(e) The
“Sea Sun” Name.
The
Licensee acknowledges that the name “Sea Sun” is part of the Licensor’s
Intellectual Property, and that: (i) the Licensor is the sole owner of all
right, title and interest in such name; (ii) the Licensee has been granted
the
right and license to use the name “Sea Sun” only in accordance with the terms
and subject to the conditions of this Agreement during the Term hereof; and
(iii) the Licensee’s use of such name as part of the name of its corporation,
and in all literature and media of every nature and description shall not confer
any rights of ownership in such name upon the Licensee.
7. Representations
and Warranties.
(a) By
the
Licensor.
The
Licensor represents and warrants as follows:
(i) the
Licensor represents and warrants that it has full right, power and authority
to
enter into this Agreement and to grant the rights, licenses and privileges
hereby granted by it to the Licensee, and that no consent of any third party
is
required to permit the Licensor to execute this Agreement and to perform its
obligations hereunder, or to permit the Licensee to exercise fully the rights
granted hereunder; and
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(ii) the
Licensor represents and warrants that 1) it is the owner of all right, title
and
interest in and to the Intellectual Property for use in connection with the
operation of the Business; 2) the Licensee’s and its sublicensees’ use of the
Intellectual Property in accordance with this Agreement will not infringe on
or
interfere with the rights of third parties; and 3) the Licensor is not aware
of
any infringements of the Intellectual Property and has no knowledge of any
pending conflicts with respect thereto.
(b) By
the
Licensee.
The
Licensee represents and warrants as follows:
(i) it
has
the right to enter into this Agreement; and
(ii) this
Agreement has been duly authorized by all necessary action on its part and
constitutes the valid and binding obligation of the Licensee enforceable against
it in accordance with its terms.
8. Indemnities.
(a) By
the
Licensee.
The
Licensee shall defend, indemnify and hold harmless the Licensor with respect
to
any liabilities, damages, losses, costs or expenses (including reasonable
attorneys' fees and expenses) (any or all of the foregoing herein referred
to as
“Loss”) insofar as such Loss (or actions in respect thereof) arises out of or is
based on (i) any breach or alleged breach of any of the representations,
warranties or agreements made by the Licensee in this Agreement, or (ii) any
acts or omissions of the Licensee or its agents or employees in connection
with
the Licensee’s performance of this Section 8(a).
The
provisions of this paragraph will survive the expiration or termination of
this
Agreement.
(b) By
Licensor.
The
Licensor shall defend, indemnify and hold harmless the Licensee with respect
to
any Loss insofar as such Loss arises out of or is based on (i) any breach or
alleged breach of any of the representations, warranties or agreements made
by
the Licensor in this Agreement, (ii) any acts or omissions of the Licensor
or
its agents or employees, or (iii) any infringement or alleged infringement
of
any patent, trademark or other proprietary right of a third party by the use
of
the Intellectual Property in accordance with this Agreement in any jurisdiction
in which a Location is established and operated by the Licensee or one of its
sublicensees. Additionally, in the event of any infringement or alleged
infringement of any patent, trademark or other proprietary right of a third
party by the Intellectual Property, Licensor shall use its reasonable efforts
promptly to procure, at its sole cost and expense, the right for the Licensee
to
continue to use the Intellectual Property in question, subject to the terms
of
this Agreement, so that the Licensee’s use and enjoyment of the rights granted
hereunder is uninterrupted. The rights of indemnification hereunder shall extend
to any sublicensee of the Licensee hereunder. The provisions of this Section
8(b)
will
survive the expiration or termination of this Agreement.
(c) Enforcement
against Infringers.
In the
event that the Licensee becomes aware of any activities or events which it
suspects may constitute an infringement by one or more third parties of the
rights granted to the Licensee under this Agreement, the Licensee shall promptly
in its sole discretion and at its expense, take such actions as it may deem
necessary and appropriate to protect and defend the rights granted in this
Agreement, including, but not limited to, the institution of appropriate legal
proceedings. Upon the request of the Licensee, the Licensor shall join in any
such actions or proceedings. The Licensee shall bear the costs and expense
of
such legal proceedings except in the event the Licensor had knowledge of such
infringing activities or events prior to the execution of this Agreement, in
which event the Licensor shall bear the costs and expenses of protecting and
defending the Intellectual Property in question. The party bearing the costs
and
expenses of such legal proceedings shall be entitled to retain all monetary
recoveries resulting from such actions or proceedings or their
settlement.
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9. Term
and Termination.
(a) Term.
The
term of this Agreement shall be effective as of the date of this Agreement
and
shall continue in full force and effect for a term of 10 years from the
effective date or until terminated pursuant to the terms of this Agreement
(the
“Term”).
(b) Renewal
Term.
Provided that the Licensee is not then in default under this Agreement the
Licensee may, no earlier than the eighth month prior to the end of the Term
and
no later than the first day of the sixth month prior to the end of the Term,
renew this Agreement for an additional period of 10 years.
(c) Termination.
The
Licensor shall have the right to terminate this Agreement in the event that
the
Licensee:
(1) fails
to
pay when due any boat rental fee, license fee or other amount due and owing
under any Location Agreement; or
(2) fails
to
remedy a failure to comply with any other obligation due and owing under this
Agreement or under any Location Agreement after Licensor shall give notice
of
Licensee’s failure to so comply and of Licensor’s intention to terminate this
Agreement or the Location Agreement in question, as the case may be, if such
failure of compliance is not remedied within 10 days after Licensee’s receipt of
such notice;
(3) assigns
or attempts to assign its rights, or delegates or attempts to delegate its
duties or obligations, under this Agreement or any Location Agreement, including
any assignment, attempted assignment, delegation or attempted delegation
occurring as a result of a change of more than 50% of the beneficial ownership
or voting control of the Licensee, in each case without the prior written
consent of the Licensor;
(4) shall
a)
voluntarily dissolve, liquidate or terminate operations or apply for or consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or liquidator of the Licensee or of all or of a substantial part of
its
assets, b) admit in writing its inability, or be generally unable, to pay
its debts as the debts become due, c) make a general assignment for the
benefit of its creditors, d) commence a voluntary case under any applicable
bankruptcy code (as now or hereafter in effect), e) file a petition seeking to
take advantage of any other law relating to bankruptcy, insolvency,
reorganization, winding-up, or composition or adjustment of debts, f) fail
to controvert in a timely and appropriate manner, or acquiesce in writing to,
any petition filed against it in an involuntary case under any applicable
bankruptcy code, or g) take any corporate action for the purpose of
effecting any of the foregoing;
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(5) shall
have rendered against it a judgment in excess of $25,000 which shall remain
undischarged, undismissed and unstayed for more than ten days (except judgments
validly covered by insurance with a deductible of not more than $5,000) or
shall
have levied upon it any attachment, garnishment or other seizure of any of
the
Licensee’s assets by reason of the issuance of any tax levy, judicial attachment
or garnishment or levy of execution; or
(6) shall
experience any change in its condition (business, financial or otherwise) which,
in the reasonable opinion of the Licensor, could have a material adverse effect
upon the properties, business, prospects or condition (business, financial
or
otherwise) of the Licensee.
(d) Effects
of Termination.
Upon
termination of this Agreement, the Licensee shall immediately forfeit its right
to conduct the Business and to use the Intellectual Property. In such event,
the
Licensee shall forthwith (i) suspend all activity relating to the Business
and
this Agreement; and (ii) return to the Licensor all Confidential Information,
products and marketing material in its possession or under its control including
without limiting the generality of the foregoing, all Sea
Spi
watercraft in the possession of the Licensee and its sublicensees.
Notwithstanding the termination of this Agreement, the Licensee shall account
for any and all Eco-Tour sales to the date of termination and shall pay the
applicable boat rental and licensing fees within 10 days of the termination.
At
the option of the Licensor, the Licensee shall assign and transfer to the
Licensor (or otherwise as the Licensor may direct) all sublicenses made between
the Licensee and its sublicensees.
10. Confidential
and Personal Information.
(a) Non-Disclosure
of Confidential Information.
The
Licensee covenants and agrees that it shall not disclose any Confidential
Information without the prior written consent of the Licensor.
(b) Confidential
Information - Definition.
“Confidential Information” shall the mean contents of this Agreement, and any
tangible or intangible information or materials disclosed by the Licensor to
the
Licensee that pertain to the concept of the Business, the procedures,
methodologies and practices employed or to be employed in operating the
Business, the finances and financial condition of the Licensor, the set-up,
boat
rental and license fees charged by the Licensor under this Agreement and the
Location Agreements and the corresponding fees charged or to be charged by
the
Licensee to its sublicensees (whether disclosed orally, in writing, in
electronic format or otherwise), including but not limited to computer programs
and systems; processes, methods and techniques; equipment; data; reports;
financial statements and information; know-how; designs; concepts; ideas;
existing and proposed contracts with third parties; corporate guidelines; logos;
and business plans, including information concerning the existence and scope
of
activities of any research, development, marketing or other projects of the
Licensor, which are furnished, disclosed, learned or otherwise acquired by
the
Licensee during or in the course of discussions or otherwise pursuant to this
Agreement. “Confidential Information” shall not include information
which:
(i) at
the
time of disclosure to the Licensee is or thereafter becomes part of the public
domain through no act or omission of the Licensee or its employees or
agents;
Page
11
(ii) is
hereafter lawfully disclosed to the Licensee by a person not known to be under
an obligation of confidentiality to the Licensee with respect to such
information; or
(iii) is
hereafter independently developed, as shown by written records maintained
contemporaneously with such development, by the Licensee, or by persons acting
for the Licensee having no knowledge of or access to any Confidential
Information.
(c) Non-Disclosure
of Personal Information.
The
Licensee agrees that it shall not, without the prior written consent of the
Licensor, disclose or make available any “Personal Information”, as such term is
defined in the Canadian Personal Information Protection and Electronic Documents
Act, that it may receive or derive in connection with the operation of the
Business to any person or entity except for designated employees of the Licensee
who have a need to access the Personal Information in connection with the use
thereof by the Licensee in accordance with the terms of this Agreement. No
such
employee shall be designated by the Licensee to access the Personal Information
unless such employee agrees to hold the Personal Information in confidence
and
to limit use of the Personal Information to the uses permitted hereby in
accordance with a written covenant at least as restrictive as this covenant.
The
Licensee agrees that the Personal Information provided to it by the Licensor
or
any of its sublicensees shall only be used for such purposes as are specified
by
the Licensor and that the Licensee shall not sell, use, disclose or transfer
the
Personal Information to any other party or use the Personal Information for
any
other purpose other than the purposes specified in this Agreement. The Licensee
shall follow all rules and regulations of the Licensor from time to time with
respect to the use, destruction, retention and security of the Personal
Information. At the end of the Term the Licensee shall destroy or return all
Personal Information that has been provided to the Licensee and shall require
all persons who were permitted to have access to the Personal Information
pursuant to the terms of this Agreement to do the same.
11. Miscellaneous
Provisions.
(a) Entire
Agreement.
This
Agreement, together with the schedules annexed hereto, and the Location
Agreements to be executed pursuant to the terms hereof, constitute the entire
agreement between the parties with respect to the subject matter hereof and
supersede all prior agreements, understandings and negotiations, both written
and oral, between the parties with respect to the subject matter hereof. No
representation, inducement, promise, understanding, condition or warranty not
set forth herein has been made or relied upon by either party
hereto.
(b) Amendments;
No Waivers.
(i) Any
provision of this Agreement may be amended if, and only if, such amendment
is in
writing and signed by the Licensor and the Licensee. Any provision of this
Agreement may be waived by the Licensor and the Licensee if the waiver is in
writing and signed by the parties to be bound.
(ii) No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
Page
12
(c) Governing
Law.
This
Agreement shall be governed by the laws of the Province of Ontario and the
laws
of Canada as applicable therein. Each party hereby submits to the non-exclusive
jurisdiction of the Province of Ontario in connection with this
Agreement.
(d) Dispute
Resolution.
Any
dispute regarding the interpretation, compliance with or breach of this
Agreement will be negotiated in good faith between the parties commencing upon
written notice from one party to the other containing a summary of the dispute
(the “Dispute Notice”). All negotiations will be confidential and inadmissible
in any subsequent proceeding without both parties’ written consent. If the
dispute is not resolved by negotiation within twenty (20) days following the
receipt of the dispute notice, the parties will refer the dispute to a mediator
acceptable to both parties for a non-binding mediation. The costs of the
meditation shall be shared equally by the parties. If the dispute is not settled
by mediation within fifty (50) days of receipt of the Dispute Notice, or if
a
mutually acceptable mediator is not selected within thirty (30) days of receipt
of the Dispute Notice, the dispute shall be settled by binding arbitration
as
follows. Within sixty (60) days of receipt of the Dispute Notice, each party
shall designate one arbitrator. Within seventy (70) days of receipt of the
Dispute Notice, the two arbitrators so designated shall appoint a third
arbitrator mutually acceptable to them, who shall alone hear and determine
the
dispute. If the two designated arbitrators are unable to agree upon a third
arbitrator within seventy (70) days of receipt of the Dispute Notice, the third
arbitrator shall be appointed by a Judge of the Ontario Court as soon as
practicable. The arbitration shall be held in accordance with the provisions
of
the Arbitration
Act
(Ontario), S.O. 1991 c.17, with all hearings to take place in the Province
of
Ontario, unless otherwise agreed by the parties. Any judgment, decision or
award
rendered by such arbitrator shall be final and binding and shall not be the
subject of any further court proceeding except in connection with the
enforcement of any such award by a court of competent jurisdiction. The costs
of
arbitration, including legal fees and disbursements of the parties, shall be
allocated by the arbitrator in the manner that the arbitrator, in his or her
discretion, considers appropriate. This section does not affect the rights
of
the parties to seek injunctive relief when appropriate to enforce their
respective rights hereunder.
(e) Counterparts;
Effectiveness.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument. This Agreement shall become effective when each party
hereto shall have received a counterpart, or facsimile of a counterpart, hereof,
each signed by the other party or parties hereto or thereto. Delivery of an
executed copy of this Agreement by facsimile transmission shall have the same
effect as delivery of an originally executed copy of this Agreement, whether
an
originally executed copy shall be delivered subsequent thereto.
Page
13
(f) Notices.
Any
notices, consents, approvals, statements, authorizations, documents or other
communications (collectively “Notices”) required or permitted to be given
hereunder shall be in writing, and shall be delivered personally or by
nationally recognized overnight express courier, mailed by ordinary mail,
postage prepaid, or sent by facsimile transmission, email, or similar form
of
transmitted message, to the party for which it is intended at the address set
forth hereunder, namely:
To
the
Licensor:
Sea
Sun
Capital Corporation
000
Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxx
Xxxxxx, Vice President
Tel:
(000)
000-0000 Ext. 201
Fax:
(000)
000-0000
To
the
Licensee:
Sea
Sun
Enterprises Incorporated
Xxxxxxxx
Xxxxx, Xxxxxxx Xxxxxx
X.X.
Xxx
000 XXX
Xxxxxxxxxx,
Xxxxxxxx
Attention: Xxxxxxx
Xxxxx Xxxxx
Tel:
(000)
000-0000
Fax:
(000)
000-0000
or
at
such other address as may be given by any of them to the other in writing from
time to time. Such Notices, if mailed, shall be deemed to have been given on
the
fourth business day following such mailing, or, if delivered personally, by
overnight courier, facsimile transmission, email or similar form of transmitted
message, shall be deemed to have been given on the day of delivery, if a
business day, or if not a business day, on the business day next following
the
day of delivery. In the event of a general discontinuance of postal service
due
to strike, lock-out or otherwise, Notices shall be delivered by hand or
overnight courier and shall be deemed to have been received in accordance with
this section.
(g) Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and permitted
assigns.
(h) Captions.
The
captions herein are included for convenience of reference only and shall be
ignored in the construction or interpretation hereof.
(i) Severability.
Whenever possible, each provision of this Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law,
such provision shall be ineffective only to the extent of such prohibition
or
invalidity, without invalidating the remainder of such provisions or the
remaining provisions of this Agreement.
(j) Further
Assurances.
Each of
the parties to this Agreement agrees that it will promptly do, make, execute
or
deliver, or cause to be done, made, executed or delivered, all such further
acts, documents and things as the other party hereto may reasonable require
from
time to time for the purpose of giving effect to the provisions of this
Agreement and will use reasonable efforts to take all such steps as may be
reasonably within its power to implement to their full extent the provisions
of
this Agreement.
[Signatures
appear on the following page]
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14
IN
WITNESS WHEREOF this Agreement has been duly executed by the parties hereto
as
of the date first above written.
|
Sea
Sun Capital Corporation
|
||
| |
|
|
| By: | ||
|
Xxxxxx
Xxxxxxxxxx, President and Chief
Executive
officer
|
||
|
Sea
Sun Enterprises Incorporated
|
||
| |
|
|
| By: | ||
|
Xxxxxxx
Xxxxx Xxxxx, Director
|
||
| By: | ||
|
Xxxxx
Xxxxx Xxxxxxx
Title:
_________________________________
|
||
| By: | ||
|
Xxxx
Xxxx Xxxxxxx, Director
|
||
Page
15
SCHEDULE
“A”
INTELLECTUAL
PROPERTY
Trademarks
SEA
SUN
SEA
SPI
I
SEA
SPI
II
Copyrights
The
Licensor is entitled to copyright protection for all written works in connection
with the Business including the following: brochures, website
(xxx.xxxxxxxxxxxxx.xxx), advertisements, manuals, designs, pamphlets, videos,
and instruction materials.
