Exhibit 10.3
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LICENSE AGREEMENT
Whereas GENETHERA INC. has created a technical innovation based upon genetic
markers which may be specifically applied as a diagnostic test for a large
number of applications involving detection of disease, harmful organisms, and
food contamination, and;
Whereas MICRO BEEF TECHNOLOGIES provides rapid technology commercialization
services; and supply chain integration programs to the food producing animal
industry and has an established sales and distribution system.
Whereas MICRO BEEF TECHNOLOGIES wishes to acquire the license rights to sell and
distribute these Tests.
The Parties do hereby enter into the following Agreement:
PART I - PARTIES
PARTIES
For purposes of this Agreement, the term "Parties" shall collectively refer to
MICRO BEEF TECHNOLOGIES, LTD, a Texas Limited Partnership (hereinafter "MICRO
BEEF") located at 000 X. Xxxxxx, Xxxxxxxx, Xxxxx 00000, and GENETHERA INC., a
Colorado corporation (hereinafter "GENETHERA") located at 00000 X. Xxxxxxxx
Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000.
PART II - TERMS AND CONDITIONS
DEFINITIONS
1.1 The Parties have negotiated the terms of this Agreement hereto and the
language used in this Agreement shall be deemed to be the language
chosen by the Parties hereto to express their mutual intent. This
Agreement shall be construed without regard to any presumption or rule
requiring construction against the Party causing such instrument or
any portion thereof to be drafted, or in favor of the Party receiving
a particular benefit under this Agreement. No rules of strict
construction will be applied against any person.
1.2 The term "Confidential Information" shall mean any confidential idea,
communication, prototype or work product, expressed or demonstrated in
any manner, without requirement that it be reduced to a fixed medium
or tangible form, in which someone may hold ownership. The term
"Confidential Information" shall not apply to the following:
o Information that was in the public domain at the time it was
disclosed or falls within the public domain through no
breach of this Agreement;
o Information that was known to the receiving Party at the
time of disclosure without obligation of confidentiality;
o Information that was made known to the receiving Party from
a source other than the disclosing Party without any breach
of confidence or violation of law.
1.3 The term "Tests" shall refer to a proprietary technical innovation of
GENETHERA for the genetic markers, which may be specifically applied
as a diagnostic test for a large number of applications involving
detection of disease, harmful organisms, and food contamination.
1.4 Captions of the paragraphs and subparagraphs of this Agreement are for
convenience and reference only, and the words contained therein shall
in no way be held to explain, modify, amplify or aid in the
interpretation or construction of the provisions of this Agreement.
PART III - OBLIGATIONS OF GENETHERA
GRANT OF LICENSE
1.5 GENETHERA hereby grants to MICRO BEEF the exclusive right to
distribute and sublicense the Tests, subject to the following
conditions and limitations:
o GENETHERA for its sole use and enjoyment and for the benefit
of others shall retain and reserve the non-exclusive right
to sublicense the Tests for its own Modular Unit
Workstations from MICRO BEEF on terms no less favorable than
those granted to third parties by MICRO BEEF.
o MICRO BEEF shall treat the Tests as Confidential
Information; and
o MICRO BEEF shall require within any license agreement with a
sub-licensee that the Tests shall be treated as Confidential
Information.
o GENETHERA may not grant any interest of any kind in the
Tests to any third party.
PRICING OF TESTS AND TECHNOLOGY
1.6 GENETHERA shall set the price of the Tests in consultation with MICRO
BEEF and provided that such price shall ensure that MICRO BEEF will
receive a xxxxx gross profit margin on its distribution and
sub-licensing of the Tests.
DEVELOPMENT OF TESTS
1.7 GENETHERA shall exert best efforts to complete development of the
Tests applicable to detection of diseases, harmful organisms, and food
contamination. GENETHERA represents and warrants that it is the sole
owner of all rights regarding the Tests and that there are no
interests in the tests by license or otherwise in any other party.
PUBLICITY AND BRANDING
1.8 GENETHERA hereby consents to the publication and promotion of
GENETHERA's identity by MICRO BEEF as the innovator of the Tests.
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
1.9 GENETHERA shall take such action, as it shall deem appropriate in its
sole discretion to apply for and maintain patent, copyright, trade
secret and/or trademark ownership rights in the Tests.
1.10 In the event of an infringement of its intellectual property rights in
the Tests, and in the event such infringement negatively impacts the
value of this license to MICRO BEEF, then GENETHERA shall take such
action as is necessary to enforce its rights and shall bear all costs
related thereto. If GENETHERA declines or fails to take any action,
MICRO BEEF shall have authority to take action in GENETHERA's name and
GENETHERA consents to being named as a party to enable such action. If
MICRO BEEF takes action to protect GENETHERA's legal rights, MICRO
BEEF shall bear all costs related thereto and shall retain in its
entirety any damages or award that it receives from such action.
1.11 In the event that any licensee of GENETHERA shall engage in any
activity that has been exclusively licensed to MICRO BEEF, GENETHERA
shall enforce the terms of the license for MICRO BEEF's benefit. If
GENETHERA declines or fails to take any action, MICRO BEEF shall have
authority to take action in GENETHERA's name and GENETHERA consents to
being named as a party to enable such action. If MICRO BEEF takes
action to enforce its exclusive rights against a licensee of
GENETHERA, MICRO BEEF shall bear all costs related thereto and shall
retain in its entirety any damages or award that it receives from such
action.
PART IV - DUTIES AND OBLIGATIONS OF MICRO BEEF
MICRO BEEF shall pay GENETHERA for its sub-licensed Modular Unit Workstations
the cost of materials (primers, fluorogenic probes, nucleic acid extraction
reagents, consumable plastic xxxx, enzymes, equipment lease, operating
technicians, and other required instruments or devices, etc.) for each test -
assay performed plus xxxxx of the sale price of each test sold. Example: Test
materials for current tests/assays are xxxxx and sale price to the ultimate
customer is xxxxx. GENETHERA will be paid xxxxx plus xxxxx and MICRO BEEF shall
retain xxxxx sales price). For Modular Unit Workstations sub-licensed to those
other than GENETHERA, MICRO BEEF shall pay the sub-licensee the cost of
materials and shall pay GENETHERA xxxxx of the sales price and MICRO BEEF shall
retain xxxxx of the sales price.
FEES, ROYALTIES AND PAYMENTS
1.12 MICRO BEEF shall actively make its best efforts to pursue and
implement marketing, sales and distribution of the MARKETING PLAN as
agreed upon by both, MICRO BEEF and GENETHERA.
1.13 MICRO BEEF shall provide a sales force sufficient to implement the
marketing plan.
1.14 MICRO BEEF shall develop and provide the materials, staff,
advertising, and necessary support to implement the marketing plan. In
no event shall MICRO BEEF be required to provide any minimum level of
sales force materials, staff or advertising, unless it is the approved
Marketing Plan approved in writing by both of the Parties.
1.15 MICRO BEEF shall not sell or sub-license any test, technology or
process without written permission from GENETHERA. Such permission
will not reasonably be withheld such that it would negatively impact
the MICRO BEEF sales and marketing efforts.
1.16 MICRO BEEF shall make no technical representations about any test,
technology or process, without prior written approval from GENETHERA.
1.17 On the last day of each calendar month, MICRO BEEF shall pay GENETHERA
for sales of the previous month.
PUBLICITY AND BRANDING
1.18 MICRO BEEF consents to the publication and promotion of MICRO BEEF's
identity by GENETHERA as the distributor and sub-licensee of the
Tests.
REPORTS, RECORDS, BILLING AND COLLECTION
1.19 MICRO BEEF shall provide to GENETHERA a report on sales with each
payment. A report shall be sent alone if no payments are due for that
prior month. The sales report shall list all sub-licensed Modular Unit
Workstations, the identity of the sub-licensee and the location of the
Modular Unit Workstation.
1.20 MICRO BEEF shall maintain books of account and records necessary for
the calculation of the amount owed GENETHERA. GENETHERA or its
appointed representative may examine such books and records solely for
the purpose of verifying the accuracy of a sales report. In the event
of a deficiency in excess of xxxxx MICRO BEEF shall pay the cost of
this examination.
1.21 MICRO BEEF shall be responsible for billing and collection of sales.
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
In the event that any sub-licensee of MICRO BEEF shall engage in any activity
that has been exclusively retained by GENETHERA, MICRO BEEF shall enforce the
terms of the license for GENETHERA's benefit. If MICRO BEEF declines or fails to
take any action, GENETHERA shall have authority to take action in MICRO BEEF's
name and MICRO BEEF consents to being named as a party to enable such action. If
GENETHERA takes action to enforce its exclusive rights against a sub-licensee of
MICRO BEEF, GENETHERA shall bear all costs related thereto and shall retain in
its entirety any damages or award that it receives from such action.
PART V - MUTUAL DUTIES AND OBLIGATIONS OF PARTIES
COMPLIANCE WITH LAWS
1.22 Each Party shall fully comply with all local, state and country laws
and regulations, which may be applicable to the performance of this
Agreement.
CONFIDENTIAL INFORMATION
1.23 Either Party or their representatives may disclose Confidential
Information to the other Party. Prior to disclosure, the Confidential
Information shall be clearly designated in writing as confidential.
1.24 Each Party shall retain ownership in their respective Confidential
Information disclosed under this Agreement, except for that
Confidential Information specifically transferred by performance of
this Agreement.
1.25 Each Party may use or disclose the other's Confidential Information
only to the extent specifically authorized by this Agreement or as
necessary to perform this Agreement and only after obtaining the
written prior approval of the other Party. The right of use and
disclosure shall be subject to the limitations herein.
1.26 Each Party shall treat the other's Confidential Information as a trade
secret of the other Party. Each Party shall actively seek to maintain
the secrecy and prevent disclosure of the other Party's Confidential
Information.
1.27 In the event that disclosure of Confidential Information is necessary
to the performance of this Agreement, the disclosing Party shall
obtain a written agreement from any third-Party recipient of the
Confidential Information, which complies with the terms and conditions
stated herein regarding use and disclosure of the Confidential
Information.
1.28 The obligations listed in this section of the Agreement shall continue
for the term of this Agreement and a period of five (5) years
thereafter.
1.29 In the event that a dispute arises regarding the confidentiality of
information, the information disclosed shall be treated as
Confidential Information until such time as a determination is made
under the dispute provisions of this Agreement.
SALES AND MARKETING OF TESTS
1.30 Neither Party shall unreasonably restrict a MARKETING PLAN so as to
unreasonably reduce the sales of the Tests.
TRANSFER OF OBLIGATIONS
1.31 Subject to the limitations regarding assignment, this Agreement shall
be binding on, and shall inure to the benefit of the Parties, their
respective legal heirs, representatives, successors and assigns.
INTERPRETATION
1.32 This Agreement supersedes and replaces in its entirety any prior
agreements between the Parties.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
1.33 All representations, warranties, covenants and agreements of the
Parties contained in this Agreement or in any instrument, certificate,
document or other writing provided for in this Agreement or the
Schedules hereto, shall remain in full force and shall be deemed
renewed by each of them after signing of this Agreement.
INDEMNIFICATION
1.34 Each Party hereto hereby agrees to indemnify, defend and hold harmless
the other Party/Parties and its/their respective officers, directors,
shareholders, agents, representatives, employees, affiliates,
executors, administrators, successors and assigns (hereinafter
collectively referred to as the "Indemnitees") from and against any
and all claims, demands, losses, costs, expenses, obligations,
liabilities, actions, suits, damages, diminution in value and
deficiencies, including, without limitation, interest and penalties,
attorneys' fees, costs of investigation and all amounts paid in
settlement of any claim, action or suit (hereinafter collectively
referred to as the "Claims") which may be asserted against the
Indemnitees, or any of them, or which any of the Indemnitees may incur
or suffer which arise out of, result from or relate to the breach of
any representation or warranty or the non-fulfillment of any covenant
or agreement of any other Party contained in this Agreement, the
Schedules hereto or in any documents or writing to be delivered after
signing of this Agreement.
REMEDIES NOT EXCLUSIVE
1.35 No remedy conferred by any of the specific provisions of this
Agreement is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in
equity or by statute or otherwise. No remedy shall be deemed to be a
limitation on the amount or measure of damages resulting from any
breach of this Agreement. The election of any one or more remedies
shall not constitute a waiver of the right to pursue other available
remedies.
WAIVER BY ACCEPTING VARIED PERFORMANCE
1.36 No waiver of any provision or consent to any action shall constitute a
waiver of any other provision or consent to any other action, whether
or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a Party to provide a waiver in the future
except to the extent specifically set forth in writing. Any waiver
given by a Party shall be null and void if the Party requesting such
waiver has not provided a full and complete disclosure of all material
facts relevant to the waiver requested.
FORCE MAJEURE
1.37 Neither Party shall be responsible for any delay in its performance of
any of its obligations under this Agreement due to circumstances
beyond its reasonable control.
GOVERNING LAW
1.38 All matters concerning the execution and authorization of this
Agreement and related documents and all other matters relating to this
Agreement and related documents (including, without limitation, the
enforcement, interpretation and construction of this Agreement and
related documents) shall be governed by the laws of the State of
Colorado, irrespective of such state's choice-of-law principles and of
the United States.
ARBITRATION
1.39
(a) This paragraph concerns the resolution of any controversies or
claims between GENETHERA and MICRO BEEF, whether arising in contract,
tort or by statute, including but not limited to controversies or
claims that arise out of or relate to (i) this Agreement (including
any renewals, extensions or modifications); or (ii) any document
related to this Agreement (collectively a "Claim").
(b) At the request of GENETHERA or MICRO BEEF, any Claim shall be
resolved by binding arbitration in accordance with the Federal
Arbitration Act (Title 9, U.S. Code) (the "Act"). The Act will apply
even though this Agreement provides that it is governed by the law of
a specified state.
(c) Arbitration proceedings will be determined in accordance with the
Act, the applicable rules and procedures for the arbitration of
financial services disputes of JAMS or any successor thereof ("JAMS"),
and the terms of this paragraph. In the event of any inconsistency,
the terms of this paragraph shall control.
(d) The arbitration shall be administered by JAMS and conducted in the
State of Colorado. All Claims shall be determined by one arbitrator,
however, if Claims exceed Five Million U.S. Dollars ($5,000,000), upon
the request of any party, the Claims shall be decided by three
arbitrators. All arbitration hearings shall commence within 90 days of
commencement and the award of the arbitrator(s) shall be issued within
30 days of the close of the hearing. However, the Arbitrator(s), upon
a showing of good cause, may extend the commencement of the hearing
for up to an additional 60 days. The arbitrator(s) shall provide a
concise written statement of reasons for the award. The arbitration
award may be submitted to any court having jurisdiction to be
confirmed and enforced.
(e) The arbitrator(s) will have the authority to decide whether any
Claim is barred by the statute of limitations and, if so, to dismiss
the arbitration on that basis. For purposes of the application of the
statute of limitations, the service on JAMS under applicable JAMS
rules of a notice of a Claim is the equivalent of the filing of a
lawsuit. Any dispute concerning this arbitration provision or whether
a Claim is arbitrable shall be determined by the arbitrator(s). The
arbitrator(s) shall have the power to award legal fees pursuant to the
terms of this Agreement.
(f) This paragraph does not limit the right of GENETHERA or MICRO BEEF
to act in a court of law to obtain an interim remedy, such as but not
limited to, injunctive relief, writ of possession or appointment of a
receiver, or additional or supplementary remedies.
(g) The filing of a court action is not intended to constitute a
waiver of the right of GENETHERA or MICRO BEEF, including the suing
party, thereafter to require submittal of the Claim to arbitration.
THE PARTIES HEREBY ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND
CONDITIONS THIS 24TH DAY OF SEPTEMBER, 2001.
MICRO BEEF Technologies, Ltd.
By Micro Beef Management, LLC
It's General Partner by it's
/s/ ,President
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Signature of Representative and Title
GENETHERA, Incorporated
/s/ Xxxx Xxxxxx, President & CEO
Signature of Representative and Title
