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Exhibit No. 5
EXCLUSIVE LICENSE AGREEMENT TO MANUFACTURE, USE AND SELL
"IMPROVED APPARATUS AND METHOD FOR THE REMEDIATION OF PARTICULATE MATERIAL AND
TOXIC POLLUTANTS TRANSPORTED IN FLUE GAS" DOCKET NO.7455
This Exclusive License Agreement is made and effective this 5th day of May,
1999, by and between XXXXXXX X. XXXXXXX, of 0000 Xxxxxxx Xxxxx Xxxxx, Xxxxxxx
Xxxx, Xxxxxx 00000, and XXXXXX X. XXXX, of11155 Xxxxxxxxx Xxxxxx Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxx 00000 hereinafter referred to as "LICENSORS," and American
Environmental Corporation, a Nevada Corporation of the State of Nevada, having a
principal place of business at 000 Xxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxx 00000,
hereinafter referred to as "LICENSEE."
WHEREAS, LICENSORS are an inventor and part owner, respectively, of a
certain Intellectual Property entitled "Improved Apparatus and Method for the
Remediation of Particulate Material and Toxic Pollutants Transported in Flue
Gas" Docket No.7455, that is currently pending and to the extent they are
owners of the entire right, title and interest in and to said inventions
currently embodied in United States Patent application.
WHEREAS, LICENSEE desires to manufacture and sell both "Improved Apparatus
and Method for the Remediation of Particulate Material and Toxic Pollutants
Transported in Flue Gas" Docket No. 7455 of the inventions;
WHEREAS, LICENSORS are willing to exclusively license the rights to
manufacture pollution systems covered by the Intellectual Property Rights set
out above to LICENSEE the right, title and interest in and to their inventions,
patents, patent application, reissues, continuation or continuations in part
thereof, and additional patent applications therein in the United States and
throughout the world for the life of any patent issued thereon or a period of
five (5) years, whichever is longer, and will cooperate with LICENSEE in filing
additional patent applications, as LICENSEE may desire and pay for, covering
improvements to LICENSORS' inventions.
NOW, THEREFORE, based upon the mutual covenants and promises set forth
herein, the parties hereto agree as follows:
DEFINITIONS
1. PATENT RIGHTS means the above set out in U. S. Patent Application "Improved
Apparatus and Method for the Remediation of Particulate Material and Toxic
Pollutants Transported in Flue Gas" Docket No. 7455 as are or later filed
relating to this application of the LICENSORS' inventions in the United States,
and any and all foreign countries, if any.
2. EFFECTIVE DATE date shall mean the date first set forth in the preamble to
this Agreement.
3. NET SELLING PRICE shall mean the price received on a sale to an unrelated
third party of each unit of a "Improved Apparatus and Method for the Remediation
of Particulate Material and Toxic Pollutants Transported in Flue Gas" docket
No. 7455 less any trade discounts as are usually allowed and actually given,
cost of returns and taxes, if any.
4. UNIT OR UNITS shall mean a complete set of manufactured pollution equipment
manufactured by or covered under the licensed subject matter.
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5. SOLD shall mean when a unit of the invention hereinafter referred to as
"unit" is manufactured, shipped or first used commercially and has been paid
for.
6. INVENTOR. A reference to inventors refers to LICENSORS, Xxxxxxx X. Xxxxxxx
and Xxxxxx X. Xxxx.
7. LICENSED SUBJECT MATTER means the LICENSORS' inventions and improvements
thereto as embodied in the subject U.S. Patent application "Improved Apparatus
and Method for the Remediation of Particulate Material and Toxic Pollutants
Transported in Flue Gas" Docket No. 7455.
WITNESSETH
1. LICENSE GRANT. LICENSORS hereby sell, grant, transfer and convey to
LICENSEE an exclusive license to make, use and sell units of the pollution
systems covered by licensed subject matter in the United States and throughout
the world, including trade secrets, know how, and the like. This license grant
is limited to the manufacture, use and sale of pollution systems and does not
cover other products or items as can be manufactured, used or sold covered by
the licensed subject matter, and is for the United States and throughout the
world, and includes the right to sublicense others under the terms and
conditions of this Agreement, providing that such sublicensees agree to be bound
by all of the terms and conditions of this Agreement.
2. ROYALTIES AND CONSIDERATION. LICENSEE, for and in consideration of the
granting of this Exclusive License Agreement, agrees to pay to LICENSORS, for
the term of this Agreement, a royalty of three per cent (3.0%) of the net
selling price for all wholesale or retail sales of "units" of LICENSORS'
inventions, that include the improvements engineered thereto, and products as
are later developed as a result of LICENSORS' efforts, and as are sold by
LICENSEE or any sublicensee, in the United States and throughout the world.
Royalty payments to be paid quarterly, on or before the fifteenth (15) day
following the end of each calendar quarter. If such royalties are not paid by
the thirtieth (30) day from the last day of the previous calendar quarter, the
LICENSORS may terminate this Agreement as provided for in paragraph 8 below.
3. MINIMUM PRODUCTION. LICENSEE agrees that from the date of this Agreement it
will, after a first year from the date of this Agreement for a second year,
produce and market "units" of the invention each year for the term of this
Agreement, and pay royalties thereon, as set out in paragraphs. Should this
production schedule of sales of "units," coming under the subject U.S. Patents,
not be produced in the second year or subsequent years, LICENSEE may keep this
license current by paying to LICENSORS, as royalties for that year, an amount
equal to the royalties as would be paid on the number of "units," set out below,
based upon the then net selling price of the "units," with a minimum production
of "units" being for a:
First year: no minimums;
Second year: LICENSEE shall have manufactured and sold at least 30 "units' by
the end of the second year;
Third year: shall have manufactured and sold at least an additional 60 "units"
during a third year;
Fourth year: shall have manufactured and sold at least an additional 90 "units"
during a fourth year and
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Fifth year and for the remainder of this Agreement: shall have manufactured and
sold at least an additional 120 "units" during each year thereafter for the term
of this Agreement.
4. TIME IS OF THE ESSENCE. LICENSEE agrees that time is of the essence in
commercially exploiting the technology licensed hereunder and accordingly agrees
to use their best efforts to develop for manufacture market ready products
embodying the rights licensed herein.
5. MINIMUM PAYMENTS. The above minimum royalty payment amounts are due and
payable on the fifteenth (15th) day of the month following the end of each
calendar year during the term of this Agreement. The greater of actual
royalties due or the minimum payment shall be paid. If any payment is not made
by the thirtieth (30th) day of the month following the end of each calendar
year, the LICENSOR may terminate this Agreement as provided for in paragraph 8
below. Accordingly, if sales have been made during a calendar year and the
actual royalties due and paid on such sales is less than the required yearly
minimum, an appropriate amount must be added thereto to reach this minimum
amount to maintain this Exclusive License Agreement. Where royalties paid in
the previous four (4) quarters are greater that the minimum, no additional
amount is due.
6. IMPROVEMENTS. Subject to the terms and conditions of this Agreement, and
for so long as LICENSEE has fully performed all of its obligations and the
covenants set out hereunder, LICENSORS agree that they will promptly make
available to LICENSEE all improvements, developments, discoveries and inventions
as LICENSORS shall acquire during the term of this Agreement and relating to the
licensed invention, and provided LICENSEE has paid for the development of such
improvements, then these improvements shall be included as part of the licensed
subject matter without additional payment. Should such improvement result in
the issue of an additional patent or patents, as set out in paragraph 11 below,
the term of this Agreement shall be extended to the end of the life of such
additional patent or patents, unless sooner terminated hereunder.
7. TERM. The term of the license herein granted shall commence on the effective
date of this Agreement and continue for the life of the last to expire issued
United States Patent concerning the licensed subject matter including
improvements as set out in paragraph 6 above as LICENSORS shall acquire, or for
the period of five (5) years from the effective date of this Agreement,
whichever is longer. As to foreign countries, this license shall continue for
such country where a patent has been granted for the life of the last to expire
patent issued in such country.
8. TERMINATION. This Agreement can be terminated by LICENSEE at any time after
the effective date hereof by LICENSEE notifying LICENSORS of such termination in
writing directed by registered mail to LICENSORS at the addresses set out herein
or other addresses supplied by LICENSORS to LICENSEE. Such termination shall be
effective thirty (30) days from the date received by LICENSORS.
LICENSORS, at their discretion, may terminate this Agreement should LICENSEE
fail to pay any required royalty when due as provided in paragraph 2 above, or
timely meet or pay any required minimum production set out in paragraph 3 above,
or minimum payments as provided for in paragraph 5 herein above. Termination
shall be effective after notice is sent by LICENSORS to LICENSEE by registered
mail addressed to LICENSEE's address set out herein below or to an address as
later supplied by LICENSEE to LICENSORS, LICENSEE to have thirty (30) days after
receipt of notice of termination to correct the cited default by bringing all
required payments current together with interest at a rate of twelve (12)
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percent per annum from the date(s) that such payments were due on. If default
is not corrected within the thirty (3 0) day period, this license shall be null
and void without a requirement for further action by LICENSORS. At the
occurrence of a default by LICENSEE of the terms and conditions of this
Agreement other than the above set out failure to make minimum payments or pay
royalties, LICENSORS may, in their sole discretion, give notice of their
intention to terminate this Agreement if such default is not timely corrected.
which notice shall be sent by registered mail to LICENSEE's address set out
herein below or other address, as LICENSEE shall supply to LICENSORS. Such
notice shall recite the claimed default with reference to this Agreement. Upon
receipt of such notice, LICENSEE shall take prompt steps to correct the default
and shall timely inform LICENSORS of the steps taken. Should LICENSEE fail to
take appropriate measures to correct such default, LICENSORS, after thirty (30)
days, may notify LICENSEE of the termination of this Agreement, which notice
shall be sent by registered mail as set out above. LICENSEE shall then have an
additional thirty (30) day period to correct said default to LICENSORS'
satisfaction, or shall during this time period have taken steps to correct said
default to LICENSORS' satisfaction. At the end of this second thirty (30) day
period from receipt of the notice of termination, if LICENSEE has not corrected
the default or taken steps to correct said default to LICENSORS' satisfaction,
this Agreement is automatically terminated without a requirement for further
action by LICENSORS. Should LICENSEE correct the said default within the second
thirty (30) day period to LICENSORS' satisfaction, or have taken steps that are
satisfactory to LICENSORS that will correct such default, then the notice of
default and/or notice of termination will be considered withdrawn.
9. LICENSEE's Obligations Upon Termination. LICENSEE agrees that, upon
termination, for any reason, all rights as they may have acquired under this
Agreement shall and do immediately cease. Accordingly, LICENSEE, upon
termination, will immediately cease any and all production and sale of "units"
of the inventions and components thereof and will turn over to LICENSORS or to
their agent, at LICENSORS' request, all technical data, materials, blueprints,
plans, and like written materials, including computer programs, as may be in
their possession relating to the licensed subject matter. LICENSEE shall
further turn over to LICENSORS or to their agent, at LICENSORS' request, all
molds, dyes, jigs, tooling, and the like, as were used in or relate to the
manufacture of "units" of the inventions. LICENSEE, upon termination, will
immediately cease and desist from further manufacture and sale of "units" of the
inventions, their components and the like. Upon termination LICENSEE shall
promptly notify LICENSORS of the number of "units" on hand of the inventions
that have been produced and the number and state of completion of "units" of the
inventions that are under construction. As to the "units' of the invention,
LICENSEE shall have the right to promptly complete said "units" of the invention
as are classifiable as forty percent or more completed at the date of their
receipt of the notice of termination and LICENSEE shall, for a reasonable period
of time, not to exceed one hundred eighty (180) days, have the right to sell
these "units" previously made at a fair market price in the normal course of
business, said sales to be governed by LICENSEE's pricing schedule in place at
the time of termination. "Units" that have not been sold within that one
hundred eighty (180) day period, will be offered for purchase to LICENSORS at
the LICENSEE's cost of manufacture. Should LICENSORS determine not to purchase
said "units," then LICENSEE shall have an additional one hundred eighty (180)
day period to sell said "units" at whatever price they can negotiate, except
that LICENSORS shall have a right of first refusal to buy all or part of said
"units" at the offered price. Such right to purchase must be accepted by
LICENSORS within ten (10) days of their receipt of a written notice from
LICENSEE. After the expiration of said ten (10) day period, provided LICENSORS
have not accepted the offer, LICENSEE may dispose of said "unit" or "units" to
such other offeror.
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As to LICENSEE's inventory of parts and supplies and "units" that are less than
forty (40) percent completed, LICENSEE and LICENSORS shall negotiate in good
faith for LICENSORS to purchase these materials. Except that LICENSORS shall
not purchase these materials for less than ten (10) percent of LICENSEE's cost.
Upon termination, any leases, contracts, and agreements as LICENSEE may have
entered into or negotiated as relating to the manufacture and sale of "units" of
the inventions, may be assumed by LICENSORS, at LICENSORS' sole discretion. In
such assumption, LICENSORS are hereby granted the right and authority to
negotiate directly with parties LICENSEE has contracted with an effort to
negotiate more favorable terms. However, should terms less than what LICENSEE
is obligated for be negotiated, such assumption terms must then be approved by
LICENSEE. It is understood, however, that LICENSORS are not obligated to
undertake or assume any liability of LICENSEE under any contracts as LICENSEE
has entered into and that LICENSORS will only become liable for such agreements
as they expressly, in writing, assume.
Termination of this Agreement shall not relieve LICENSEE of any burden or
obligation of payment for past royalties or past minimum payments to LICENSORS
and for payment of royalties on "units" of the inventions as have been
manufactured or whereon manufacture is completed and sold after termination of
this Agreement. Accounting for such sales shall be as provided for in paragraph
17 herein below.
10. CONFIDENTIALITY. LICENSEE agrees to maintain as confidential all of the
subject matter licensed hereunder, including trade secrets, and the like, as may
be disclosed by LICENSORS to LICENSEE, in conjunction with or subsequent to the
execution of this Agreement. LICENSEE shall maintain as proprietary and
confidential all information relating to design and improvements that are or
maybe the subject of United States and/or foreign patent applications. LICENSEE
will, within its manufacturing facility or the like, maintain close controls on
entry and movement of persons within such manufacturing facility as are
appropriate to maintain as confidential and as trade secrets the activities
conducted within such facility, including, but not limited, requiring persons
entering such facility to agree in writing to be bound by the terms and
conditions of an acceptable Confidential Disclosure Agreement. Such
Confidential Disclosure Agreement is to be approved by LICENSORS in advance of
use and shall be maintained after signing by LICENSEE for LICENSORS' inspection.
11. PATENT APPLICATIONS. LICENSEE, by this Agreement, agrees to be responsible
for paying for the filing and prosecuting additional patent applications, if
any, utilizing patent counsel as selected by LICENSORS only, covering the
licensed subject matter of this Agreement in the United States and foreign
countries and improvements thereon as it elects, to allowance, final judgement,
refusal or abandonment. LICENSEE shall timely elect specific countries as they
determine to file patent applications in and shall notify LICENSORS of such
determination. LICENSORS, at their option and with the cooperation of the
inventors, shall then have the right to select any additional foreign countries
as LICENSORS elects to file patent applications in. Should LICENSORS so elect,
then, at the option of LICENSEE, any patent rights granted in such additional
foreign country shall and will become part of the licensed subject matter of
this Agreement, and are then considered as having been licensed hereunder to
LICENSEE.
Should this Agreement be terminated, as set out above, upon the request of
LICENSORS, LICENSEE will promptly execute appropriate documents for transferring
any title to LICENSORS as they may be acquired to issued patents and patent
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applications, and shall turn over to LICENSORS all materials associated
therewith and shall, at the request of LICENSORS, cooperate with the LICENSORS
in continuing the prosecution of such patent applications and will take all
reasonable steps necessary to protect and preserve such patent rights to the
benefit of LICENSORS.
12. TRADEMARKS. LICENSEE, whether with or without the input of LICENSORS, may
adopt a trademark or trademarks covering "units" of the inventions, for example
turbulent dry injection system. Upon termination, LICENSEE agrees that such
marks as have become identified with the subject matter of this Agreement shall
be conveyed by separate assignment to LICENSORS. Which assignment shall include
a conveyance of the rights, as LICENSEE shall have acquired in such xxxx or
marks, as will expressly including the goodwill associated therewith. This
Trademark Assignment will be made without cost to LICENSORS and shall be
executed in conjunction with other assignments and conveyances of the rights
licensed as called for herein.
13. PATENT NOTICE. LICENSEE acknowledges the importance of protecting patent
rights and accordingly agrees to attach a suitable name plate, located in a
prominent position, to each "unit," covered by this Agreement, which name plate,
label, or the like, shall indicate that the product has been manufactured under
license from LICENSORS and will set forth the U.S. and foreign Patent Numbers,
and any additional patent numbers, if any, both United States and foreign, and
may indicate that other patents are pending at the time of the manufacture, if
applicable, covering the licensed subject matter. This notice shall be in
conformity with requirements of United States statutes relating to the marking
of patented devices.
14. INFRINGEMENT. LICENSEE agrees to notify LICENSORS promptly of any claim
of, or threatened action or suit for infringement, of any patents belonging to
third parties, made or brought against LICENSEE by reason of LICENSEE's exercise
of rights granted hereunder. LICENSORS, upon notification, shall have the right
to take charge of the defense of such action, as LICENSORS determine, including
the hiring of attorneys of its own selection, or may elect to indemnify or hold
harmless LICENSEE, who shall defend any such action through attorneys of
LICENSEE's own selection. If any such action should be instigated against
LICENSORS and LICENSEE jointly, LICENSEE shall defend such action on behalf of
both parties through attorneys of its choosing providing such attorney is
acceptable to LICENSORS. LICENSORS shall assist with such defense and
accordingly shall without charge make available to LICENSEE any relevant
records, information, samples, tests, reports, engineering data, and the like,
and shall at its own cost make all reasonable efforts to secure the testimony of
its employees and shall cooperate with such defense as requested by LICENSEE.
LICENSORS, however, shall have the right to participate in the defense of any
such action at their own expense through counsel of their own choosing.
In the event LICENSEE shall determine that one or more of the patent rights
licensed hereunder are being infringed, LICENSEE shall not communicate with such
suspected infringer and shall provide LICENSORS with evidence as LICENSEE may
have acquired showing such infringement. If LICENSORS shall determine that an
infringement exists, LICENSORS may take action to suppress the infringement to
the extent of bringing suit against such infringer, if necessary. LICENSORS,
however, are under no obligation to bring such suit or to prosecute more than
one suit at a time involving a claim for infringement of any of the patents
licensed hereunder. In the event LICENSORS decline to bring suit or to
prosecute more than one suit at a time involving a claim for infringement of
their patent or patents licensed hereunder, LICENSEE, with the permission of
LICENSORS, may bring such suit at their own expense. If LICENSEE shall bring
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such suit and recover, then LICENSEE alone shall enjoy the benefit of such
recovery. Should LICENSEE and LICENSORS determine to jointly or collectively
bring action for infringement, then any recovery therefrom shall be divided
between LICENSORS and LICENSEE based on the financial contributions of the
respective parties, which contribution of LICENSORS may be provided by his
foregoing royalties as provided for herein.
15. PATENT INVALIDITY . It is agreed that if a judgement is entered by a court
of competent jurisdiction in any proceeding in which any claim or claims of one
or more of the patent or patents licensed under this Agreement is found to be
invalid for any reason, and should such judgement become final, such rights to
such invalidated claim or claims will cease to be part of the subject matter
licensed hereunder. However, the parties hereby acknowledge that this Agreement
is not founded on any single patent or claim or claims thereof but is also to
technology, know how and trade secrets, and therefore the invalidity of a single
claim, claims, patent or even several patents of the licensed subject matter
shall not alter or modify the terms and conditions of this Agreement.
16. ASSIGNMENT. This Agreement is personal to LICENSORS and may not be
assigned without written approval by LICENSEE except in the event of the death
of LICENSORS, the rights to payments provided for hereunder shall survive and
are inheritable by their estate to continue for as long as this Agreement is in
full force and effect. It is, however, assignable by LICENSEE to a successor to
its entire business or to a third party as approved by LICENSORS who will not
unreasonably withhold their approval, which third party will agree in writing in
advance of such assignment to be bound to the terms and conditions of this
Agreement. Assignment will, however, in no way relieve LICENSORS or LICENSEE of
their obligations under the provisions of this Agreement.
17. REPORTS, RECORDS, AND PAYMENTS. Before the thirtieth (30th) day following
each quarterly period ending September 30,1999, December 31, 1999, March 31,
2000 and June 30, 2000 and so on, respectively, from the date of the signing of
this Agreement, all production minimums and sales, and related royalties payable
hereunder shall be reported to LICENSORS. LICENSEE shall furnish to LICENSORS a
statement, certified by an officer of LICENSEE, showing all licensed "units"
manufactured and sold by LICENSEE during such quarter. This report shall
include details of all production and sales and a computation of the royalties
payable pursuant to paragraph 3 hereof In that itemization, sales of all
companies operating as sublicensees of LICENSEE shall also be reported. This
statement shall be submitted to LICENSORS even if no sales have taken place
during the applicable quarterly period.
Concurrent with the conveyance of such royalty report, LICENSEE shall pay to
LICENSORS all royalties as are due and payable. All sums of money payable by
LICENSEE to LICENSORS under this Agreement shall be paid in United States
currency and to the LICENSORS directly, or to an account designed by LICENSORS.
Payment shall be made in accordance with the definition of net selling price of
"units" of the inventions licensed hereunder, as set out in the definitions
portion of this Agreement. Where foreign currency is received, such shall be
converted into United States currency using the foreign exchange rate as set for
bank transfers in the United States for payment abroad, less all expenses
relating to the conversion and/or collection thereof. The exchange rate shall
be that which is in effect for the last business day of a calendar quarter in
which the sales were made.
LICENSEE shall keep complete, true and accurate books of account containing all
particulars of their business activities as necessary for demonstrating the
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accuracy of the report rendered to LICENSORS setting out the amount to be paid
to LICENSORS by way of royalties, as set forth above. Such books of account and
supporting data shall be open at any reasonable time for a period of five (5)
years following the end of a calendar year to which they pertain for the
inspection of LICENSORS, or their representatives, for the purpose of verifying
LICENSEE's royalty statements, or LICENSEE's compliance with respect to other
aspects of this Agreement.
18. DISCLAIMER OF LIABILITY. LICENSEE agrees to assume all financial and
service obligations for products manufactured and sold by it, and hereby
expressly absolves and holds harmless LICENSORS from all liability and/or
responsibility to LICENSEE and/or to others, including third parties, for any
failure in production, design, operation or otherwise, including fitness of
purpose and inherent defects, for products manufactured and sold by LICENSEE.
19. NON-WAIVER PROVISIONS. Failure by LICENSORS or LICENSEE to enforce any
provision of this Agreement, or any right in respect hereto, or to exercise any
election herein shall in no way be considered to be a waiver of such provision,
right, or election nor in any way shall such effect the validity of this
Agreement. The exercise by LICENSORS or LICENSEE of any of their rights, herein
or any of their elections under the terms or conditions herein shall also not
preclude or prejudice LICENSORS or LICENSEE from exercising the same or any
other right as they may have under this Agreement irrespective or any previous
action or proceeding taking by LICENSORS or LICENSEE hereunder.
20. TERMINATION/BANKRUPTCY. Unless otherwise provided by law, LICENSORS shall
have the right to terminate this Agreement and any sublicense or sublicenses
granted hereunder upon the filing by LICENSEE of a petition in bankruptcy or
insolvency, or upon or after a declaration of bankruptcy or insolvency, or upon
or after the filing by LICENSEE of any petition or answer seeking
reorganization, readjustment or arrangement under any law relating to bankruptcy
or insolvency, as could involve the appointment of receiver for all or any part
of the property of LICENSEE, or upon or after the initiation by LICENSEE of any
proceedings for the liquidation or winding up of its business or for the
termination of its corporate charter; and upon the exercise of such rights, any
licenses or sublicenses granted shall automatically terminate fifteen (15) days
after notice in writing to that effect has been given by LICENSORS to LICENSEE
or to sublicensees.
Should, however, a petition in bankruptcy or insolvency, or upon or after a
declaration of bankruptcy or insolvency, or upon or after the filing by LICENSEE
of any petition or answer seeking reorganization, readjustment or arrangement
under any law relating to bankruptcy or insolvency, as could involve the
appointment of receiver for all or any part of the property of LICENSEE, or upon
or after the initiation by LICENSEE of any proceedings for the liquidation or
winding up of its business or for the termination of its corporate charter, and
a court block termination it is agreed that the provisions of paragraphs 2 and 3
shall remain in force and effect and all amounts due and payable thereunder
shall accrue as a responsibility of a subsequent taker, who acquires from such
court the rights and responsibilities under this Agreement.
21. CONSTRUCTION. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America and the State of Utah.
This Agreement constitutes the entire agreement between the parties with respect
to the subject matter licensed hereunder, and shall supercede any previous
communications, representations, understandings and agreements, either oral or
written, between the parties or any officer to representative thereof with
respect to the subject matter of this Agreement.
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22. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between
the parties hereto pertaining to the subject matter hereof, and supercedes all
prior agreements, understandings, negotiations and discussions, whether oral or
written, relating to the subject matter of this Agreement. No supplement,
modification, waiver or termination of this Agreement shall be valid unless
executed by the party to be bound thereby. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of any other
provisions hereof (whether or not similar), nor shall such waiver constitute a
continuing waiver unless otherwise expressly provided.
23. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been given (i) if personally
delivered, when so delivered, (ii) if mailed, one (1) week after having been
placed in the United States mail, registered or certified, postage prepaid,
addressed to the party to whom it is directed at the address set forth below:
If to LICENSORS:
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxx
0000 Xxxxxxx Xxxxx Xxxxx and 00000 Xxxxxxxxx Xxxxxx Xxxx Xxxx
Xxxxxxx Xxxx, XX 00000 Xxxxxxxxxx, XX 00000
With a copy to:
M. Xxxx Xxxxxxx, Esq.
261 East 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
If to LICENSEE:
American Environmental Corporation
000 Xxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Either party may change the address to which such notices are to be addressed by
giving the other party notice in the manner herein set forth.
24. THIRD PARTIES. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than LICENSORS or LICENSEE any rights
or remedies under or by reason of this Agreement.
25. INJUNCTIVE RELIEF. Each party hereby acknowledges and agrees that it would
be difficult to fully compensate the other party for damages resulting from the
breach or threatened breach of any provision of this Agreement and, accordingly,
that each party shall be entitled to temporary and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent injunctions,
to enforce such provisions without the necessity of proving actual damages or
being required to post any bond or undertaking in connection with any such
action. This provision with respect to injunctive relief shall not diminish,
however, the right of either party to any other relief or to claim and recover
damages.
26. HEADINGS. Section and subsection headings are not to be considered part of
this Agreement and are included solely for convenience and reference and in no
way define, limit or describe the scope of this Agreement or the intent of any
provisions hereof.
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27. ATTORNEYS' FEES. In the event any party takes legal action to enforce any
of the terms of this Agreement, the unsuccessful party to such action shall pay
the successful party's expenses (including, but not limited to, attorneys' fees
and costs) incurred in such action.
28. ARBITRATION. Any controversy arising out of or relating to this Agreement
or the transactions contemplated hereby shall be referred to arbitration before
the American Arbitration Association strictly in accordance with the terms of
this Agreement and the substantive law of the State of Nevada. The board of
arbitrators shall convene at a place mutually acceptable to the parties in the
State of Nevada and, if the place of arbitration cannot be agreed upon,
arbitration shall be conducted in Las Vegas, Nevada. The parties hereto agree
to accept the decision of the board of arbitrators, and judgement upon any award
rendered hereunder may be entered in any court having jurisdiction thereof
Neither party shall institute a proceeding hereunder until that party has
furnished to the other party, by registered mail, at least thirty (30) days
prior written notice of its intent to do so.
29. FORCE MAJEURE. Except for obligations of payment neither LICENSORS nor
LICENSEE shall be liable for non-performance caused by any circumstances beyond
their reasonable control, including, but not limited to, lightning, earthquake,
storm, strike, lockout or other industrial disturbance, shortage of necessary
labor, acts of enemies, sabotage, war, blockage, insurrection, riot, epidemic,
landslide, flood, fire, washout or the order of any court or authority, which
circumstance by the exercise of due diligence the party invoking this paragraph
29 is unable to prevent or overcome; provided, however, that (i) lack of
financial capacity shall in no event be deemed to be a cause beyond a party's
control and (ii) no party shall be entitled to invoke this paragraph 29 if the
failure to observe or perform any of the covenants or obligations herein imposed
upon it was caused by such party failing to act in a reasonable and prudent
manner under the circumstances, or failing to remedy the condition with
reasonable diligence, or failing to give notice as soon as possible after
determining that an event of force majeure has occurred and specifying those
covenants or conditions such party will be unable to perform, or was the result
of a knowing or negligent breach by such party of any applicable laws,
regulations, agreements or contracts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
/S/XXXXXXX X. XXXXXXX, INVENTOR and LICENSOR
/S/XXXXXX X. XXXX, INVENTOR and LICENSOR
AMERICAN ENVIRONMENTAL CORPORATION, LICENSEE
By:/S/Xxxxx X. Xxxxxxxxx
Its: Secretary
