TRADE-XXXX LICENSE (NORTH AMERICA)
THIS AGREEMENT made the 8 day of August, 2000.
BETWEEN:
Merlin Software Technologies Inc. a company incorporated pursuant to the law of
the Province of British Columbia, having its head office at 0000 Xxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx Xxxxxxxx, X0X 0X0.
(herein the "Licensor")
OF THE FIRST PART
AND:
Merlinesque, a company incorporated pursuant the laws of the State of Nevada,
USA, having its head office at 00 Xxxxxx Xxxx, Xxxxxx Xxxxxxx Xxxxxxxx X0X 0X0
(herein the "Licensee")
OF THE SECOND PART
WITNESSES THAT WHEREAS:
A. The Licensor is the owners of the trade-marks (the "Marks")
identified on Schedule "A" attached, which Marks are the subject of applications
for registration in the United States and Canada, as set forth on the said
Schedule "A" ("the Applications");
B. The Licensee wishes to acquire a license to use the Marks and any
resulting trademark registrations in the United States and Canada;
NOW THEREFORE, in consideration of the payment of $1.00 (one dollar) by the
Licensee to the Licensor and other good and valuable consideration, the above
par-ties agree as follows:
1. GRANT OF LICENSE
1.1 The Licensor grants an exclusive license to the Licensee for an
annual fee not to exceed $1.00 payable by the Licensee to the Licensor. The
Licensor grants this licence from August 8, 2000 for an indefinite term (the
"Ten-n"), but subject to termination as provided for herein, to use the Marks in
Canada and the United States, in relation to the Licensee's business of
manufacture and sale of childrens' toys, games, clothing, furniture, books,
puzzles, computer games, animation film or videos, television programs and radio
programs (the "Wares and Services") in accordance with such standards,
specifications and quality of all products or services sold or delivered in
association with the Marks (the "Standards") which the Licensor may direct from
time to time. The license granted will also include the rights of the Licensor
arising under the Applications. The Licensee acknowledges that the Licensor has
direct control over the character and quality of the Wares and Services by
virtue of the license granted hereunder.
1.3 The Licensee agrees not to use the Marks or any rights conferred to
under this agreement, in association with any computer or computer software
related business, whether directly or indirectly, which is competitive to a
product or service sold or distributed by the Licensor.
1.4 The Licensee agrees that during the Term of this license it will:
(a) maintain the Standards as advised by the Licensor of them and will make
no changes to them without the express approval of the Licensor;
(b) comply with all governmental regulations with respect to its use of the
Marks in association with the Wares and Services;
(c) at the Licensor's request, provide the Licensor with samples of how the
Marks are used in association with the Wares and Services, and permit the
Licensor to inspect all aspects of the business of the Licensor, in order to
ensure that the Standards are being met;
(d) the Licensee agrees that the manner of use and display of the Marks
shall conform to the standards set by, and be under the control of the Licensor;
(e) the Licensee shall comply with all applicable laws relating to
advertising and promotions in connection with the Marks;
(f) the Licensee shall reasonably cooperate with Licensor at Licensor's
expense in the procurement and maintenance of any registration or recordal
relating to the Applications, including but not limited to the provision of
information, specimens of use and signatures as Licensor may reasonably require.
1.5 The Licensee will, upon request by the Licensor, provide public
notice in such manner as reasonably required by the Licensor or by applicable
laws and shall include all notices, markings and legends in order to give
appropriate notice from time to time that the Marks are owned by the Licensor
and that the use of the Marks by the Licensee is a licensed use.
1.6 The failure of the Licensee to maintain the Standards will, upon
reasonable opportunity and notice from the Licensor to cure, be grounds for
immediate termination by the Licensor of this license, without further notice to
the Licensee.
1.7 The Licensee acknowledges and agrees that:
(a) the Marks and all goodwill, associated therewith, and all Applications
and registrations thereof, are owned solely by Licensor, and Licensee shall
never directly or indirectly contest such ownership;
(b) all use of the Marks shall inure solely to the benefit of and be on
behalf of Licensor;
(c) the Marks and all Applications and registrations thereof are valid, and
Licensee shall never directly or indirectly contest their validity;
(d) the License granted herein is not intended to be and shall not be
construed as an assignment; and, further, that nothing herein confers on
Licensee any night, title or interest in the Marks other than the limited right
to use same in accordance with this Agreement;
(e) the Licensee shall not do or cause to be done, or omit to do or be done,
anything impairing or intending to impair any of the rights of Licensor in the
Marks;
(f) the Licensee's failure to cease use of the Marks upon termination of
this Agreement unless otherwise permitted herein shall constitute infringement
and dilution of the Marks and entitle Licensor, without limitation, to equitable
relief by way of temporary restraining order and/or preliminary or permanent
injunction;
(g) the Licensee's foregoing acknowledgments, covenants and admissions shall
survive the termination of this Agreement for any reason; and,
2. ENFORCEMENT
2.1 The Licensee will notify the Licensor of any infringement of the
Marks, and will assist the Licensor in every way to enforce any rights under the
Applications and any resulting registrations of the Marks in any infringement
action brought by the Licensor.
2.2 The Licensee will not call upon the Licensor to bring proceedings
against third party infringers of the Marks and will not initiate such
proceedings itself without the prior written consent of the Licensor, and hereby
waives any such rights which the Licensee may have pursuant to Section 50(3) of
the Trade-Marks Act (Canada), or any successor legislation.
3. TERMINATION
3.1 In addition to the provisions set forth in Clause 1.6, the Licensor
may, at any time and without notice to the Licensee, terminate this license in
the event of any of the following:
(a) subject to Clause 1.6 above, any material default or breach by the
Licensee of any of its covenants, obligations and agreements;
(b) if the Licensor, in good faith, reasonably believes that the Licensee
is, or is about to become, insolvent;
(c) if the Licensee makes an arrangement with its creditors or seeks
protection from its creditors under any bankruptcy, insolvency or other similar
legislation;
(d) if a receiver or receiver manager is appointed over all or substantially
all of the assets of the Licensee; or
(e) if any regulatory authority governing a party requires such party to
discontinue using the Marks or cease doing business.
3.2 The right of termination provided for in Clause 3.1 will be in
addition to, and not in substitution of, any other right or remedy of the
Licensor in any of the events set out in Clause 3.1.
3.3 Notwithstanding anything contained in this Agreement, the Licensor
may terminate this Licence by giving to the Licensee sixty days prior written
notice.
4. GENERAL
4.1 This Agreement will be governed by and construed in accordance with
the laws of British Columbia.
4.2 The Licensee will not be entitled to assign or sublicence any of
its rights, covenants, obligations or agreements to any other party without the
prior written consent of the Licensor.
4.3 The parties will execute and deliver all such further documents, do
or cause to be done all such further acts and things, and give all such further
assurances as are necessary to give fall effect to the provisions and intent of
this Agreement.
IN WITNESS WHEREOF the parties have signed this Agreement as of the date first
above written.
Merlin Software Technologies Inc.
Per: /s/ signed
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Authorized Signatory
Merlinesque
Per: /s/ signed
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Authorized Signatory
SCHEDULE "A"
1. Application
Country: United States
Application No. 75/755755
Application Date: July 20, 1999
Applicant: Merlin Software Technologies Inc.
Trade-xxxx Penguin Wizard Design
Wares: (1) Soft and hard, mechanical and non-mechanical,
computerized and non-computerized children's toys
and figurines; computer software for desktop, client
and server applications for computer systems and
computer peripherals including Internet applications.
Services: Marketing, manufacturing and selling of children's toys
and games, computer software and hardware services.
2. Application
Country: Canada
Application No. 1060637
Application Date: May 25, 2000
Applicant: Merlin Software Technologies Inc.
Trade-xxxx Penguin Wizard Design
Wares: (1) Soft and hard, mechanical and non-mechanical,
computerized and non-computerized children's toys
and figurines; computer software for desktop, client
and server applications for computer systems and
computer peripherals including Internet applications.
Services: Marketing, manufacturing and selling of children's toys
and games, computer software and hardware services.
