Exhibit 10.1
Exclusive Patent, Trademark and Tradename License
Agreement
by and between
Xxxx Xxxxxxx Xxxxxx dba EASY GOLF
and
Bio-Thrust, Inc., a Utah corporation
Xxxx Xxxxxxx Xxxxxx dba EASY GOLF Bio-Thrust, Inc.
Agreement
Index
ARTICLE I Recitals (pages 3-4)
ARTICLE II Definitions (pages 4-5)
ARTICLE III Ownership of Intellectual Property and Exclusive License
Grants (pages 5-6)
ARTICLE IV Sublicenses (page 7)
ARTICLE V Compensation, Payments and Reports (pages 7-9)
ARTICLE VI Payment of Patent Prosecution Costs, Other Patent Office
Fees and Related Attorney's/Agent's Fees (page 9)
ARTICLE VII Representations, Warranties, and Limitations (pages 9-10)
ARTICLE VIII Non-Confidential and Technical Information (page 10)
ARTICLE IX Transferability of Rights and Obligations (page 10)
ARTICLE X Legal Proceedings (pages 10-11)
ARTICLE XI Arbitration (page 11)
ARTICLE XII Term and Termination (pages 11-13)
ARTICLE XIII General Provisions (pages 13)
ARTICLE XIV Disclaimer and Hold Harmless Provision (pages 13-14)
ARTICLE XV Notice (page 14)
ARTICLE XVI Integration (page 14)
EXCLUSIVE PATENT, TRADEMARK AND TRADENAME
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into on this 10th day of March, 2005,
by and between Xxxx Xxxxxxx Xxxxxx dba EASY GOLF, an individual currently
residing at 0000 Xxxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000-0000 (hereinafter
referred to as "INVENTOR" or "LICENSOR") and BIO-THRUST, INC., a Utah
corporation in good standing with the State of Utah, Division of Corporations
and Commercial Code (hereinafter "LICENSEE") whose principal place of business
is 0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxx Xxxx Xxxx, Xxxx 00000-0000,
phone no. 000-000-0000, fax no. 000-000-0000.
WITNESSETH:
ARTICLE I
1.01 WHEREAS, INVENTOR/LICENSOR has invented a device, invention or
product that purportedly enables or assists a person to hit a golf ball
straight, an invention that INVENTOR/LICENSOR calls or has termed "The 'Swing-
Channel' Golf Mat";
1.02 WHEREAS INVENTOR/LICENSOR is the owner of two U.S. trademark and
tradename applications on file with the U.S. Patent & Trademark Office, one of
which was applied for on September 8, 2004, Serial Number 78480447, and the
other of which was applied for on March 1, 2005, Serial Number 78577944, the
names of which are "Easy Golf" and "Swing-Channel," respectively, both of
which have been applied for by INVENTOR/LICENSOR for use with respect to the
sport of golf;
1.03 WHEREAS INVENTOR/LICENSOR is the owner of the Utah trademark "Easy
Golf," Registration No. 5758081-0190, the registration for which was issued on
November 4, 2004;
1.04 WHEREAS INVENTOR/LICENSOR registered, on October 4, 2004, with the
Utah Department of Commerce and Commercial Code, the name "Easy Golf" as "dba"
of himself in the State of Utah, Entity No. 5743928-0151;
1.05 WHEREAS INVENTOR/LICENSOR has retained patent counsel to prepare
and apply for a utility patent, or, alternatively, a design patent, on "The
'Swing-Channel' Golf Mat," for which he has recently paid such counsel
$4,000, and is thus in the process of so applying for United States letters
patent (as specified in Section 2.01 hereinafter);
1.06 WHEREAS INVENTOR/LICENSOR has drafted and copyrighted, or will
officially copyright, in his own name, a form of colored brochure or
instruction manual (which will explain how to use "The 'Swing-Channel' Golf
Mat") to be included in the box in which a customer will receive delivery of
"The 'Swing-Channel' Golf Mat";
1.07 WHEREAS INVENTOR/LICENSOR has retained and paid a website designer
who is in the process of developing and designing an Easy Golf website to be
exclusively licensed to and used by LICENSEE for the commercial purposes set
forth hereunder, a website that will have a fully operational "Shopping Cart"
and through which credit card charges can be made for the purchase of "The
'Swing-Channel' Golf Mat";
1.08 WHEREAS INVENTOR/LICENSOR owns and has reserved the following
website domain names for at least the next year, xxx.xxxxxxxx.xxx,
xxx.xxxxxxxxxxxxx.xxx, xxx.xxxxxxxxxxxxxxxx.xxx, xxx.xxxxxxxxxxxxxxxxxxxx.xxx,
xxx.xxxxxxxxxxxxxxx.xxx, and xxx.xxxxxxxxxxxxxxxxxxx.xxx, all of which
LICENSOR is further willing to license to LICENSEE for the purposes set forth
herein;
1.09 WHEREAS, LICENSEE, is interested in acquiring, and LICENSOR is
interested in licensing, or conveying by way of license, all substantial
rights in and to LICENSOR's U.S. letters patent applications and any
subsequently issued letters patent (including any future foreign letters
patent and any foreign letters patent applications) via an Exclusive License,
on terms wherein, among other things, payment of the purchase price is, in
part, related to sales of "The 'Swing-Channel' Golf Mat" covered by said
applications for letters patent and any subsequently issued letters patent;
1.10 WHEREAS, LICENSEE is also interested in obtaining the exclusive
right to use LICENSOR's other proprietary intellectual property and other
common law rights associated with, connected to, or related to the invention
known as "The 'Swing-Channel' Golf Mat," including but not limited to
LICENSOR'S various federal and state trademarks, tradenames, "dba's", and
website domain names; and
1.11 WHEREAS, LICENSEE represents that it has the financial resources,
the ability, the required manpower and the willingness to engage in and
promote the manufacture, use and sale of "The 'Swing-Channel' Golf Mat"
through the website it is acquiring the right to use hereunder, through golf
magazine advertising, through potential cable or other television advertising,
and also through advertising through golf shops, golf stores and other retail
stores or outlets around the country,
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the issuance to LICENSOR of thirty five million (35,000,000)
"restricted" shares of $0.0001 par value common capital shares of Bio-Thrust
of which there are currently a total of 7,210,410 shares issued and
outstanding, the agreement to pay LICENSOR a royalty of five percent (5%) of
net sales prices or net proceeds from sales (as further defined below) and
good and other valuable consideration paid by LICENSEE to LICENSOR, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree and do hereby agree as follows:
ARTICLE II
Definitions
2.01 "LICENSED PATENTS" shall mean and include:
(a) All applications for U.S. letters patent (and any future foreign
applications for letters patent) which are in the process of being
made and applied for by LICENSOR through his patent counsel, any
or all of which shall be subsequently identified and attached
hereto and made a part of this Agreement, and any reissues and/or
extensions thereof which shall be based on any such letters
patent;
(b) Any divisional, continuation-in-while or in-part patent
application, foreign or domestic, which shall be based on any
patent application contemplated in the previous paragraph; and
(c) Any letters patent, both foreign and U.S., which ultimately issue
on any of the patent applications described or contemplated in
Paragraphs (a) and (b) above and any reissues and/or extensions
thereof.
2.02 "ROYALTY BEARING PRODUCT" shall mean or apply exclusively to sales of
the "The 'Swing-Channel' Golf Mat" and all materials included with it,
such as any instruction manual or operating brochure.
2.03 "LICENSED PRODUCTS" shall mean all of the intellectual properties,
including the Easy Golf website-related properties subject of this
Agreement, and which LICENSOR, by virtue of this Agreement, is allowing
LICENSEE to take and use, in any lawful manner, for commercial
exploitation purposes. In particular, this term refers to the invention
and product known as "The 'Swing-Channel' Golf Mat" and all
intellectual property associated therewith, not the least of which is
the trademark "Easy Golf ."
2.04 "MONIES" shall mean and include all contractual front-end payments,
minimum royalties, advance royalties, earned royalties and the like,
without any deduction whatsoever, but shall exclude all per diems,
consulting fees, reimbursement of travel expenses and the like, as, for
example, provided for in Article VIII hereafter.
2.05 "NET SALES PRICE" shall be the total amount actually billed to the
customer for each ROYALTY BEARING PRODUCT sold, less customary trade
and quantity discounts, less allowance for returns (other than trade-
ins), less value added or other sales taxes directly resulting from the
sales of the ROYALTY BEARING PRODUCT which have been actually paid to
LICENSEE, less any packing, shipping, handling, transportation or
installation charges, if included in the invoice price and actually paid
or allowed.
2.06 "CONTRACT YEAR" shall mean any 12-month period starting from the
EFFECTIVE DATE and annually thereafter at the anniversary date of the
EFFECTIVE DATE and comprising four (4) "QUARTER CONTRACT YEAR" periods
of three (3) months each.
ARTICLE III
Ownership of Intellectual Property and Exclusive License Grants
3.01 LICENSOR hereby grants to LICENSEE, subject to the terms and conditions
herein, an exclusive right and license to manufacture, use, sell and/or
otherwise commercially exploit, in any lawful manner, the LICENSED
PRODUCTS during the term of this Agreement.
3.02 LICENSOR also specifically hereby grants to LICENSEE, subject to the
terms and conditions herein, a license to take and use the applied-for
federal trademarks "Easy Golf" and "Swing-Channel," both of which have
been designated to be used in or with the sport of golf.
3.03 LICENSEE acknowledges the validity of the applied-for federal trademarks
"Easy Golf" and "Swing-Channel" and shall always use, in conjunction
with either xxxx, such notices indicative of the application or
subsequent registration and ownership thereof as LICENSOR may, from time
to time, require.
3.04 LICENSEE further acknowledges LICENSOR's intent to file a utility patent
(or alternatively, a design patent), with the U.S. Patent & Trademark
Office, on "The 'Swing-Channel' Golf Mat," the progress upon which
LICENSOR agrees to continuously report to LICENSEE; in this regard,
LICENSEE shall always use, in conjunction with any patent application or
issued patent thereon, such notices indicative of the application or
subsequent issuance, and the ownership thereof, as LICENSOR may, from
time to time, require.
3.05 Notwithstanding anything to the contrary herein expressed or implied,
LICENSOR is and shall be and remain the owner of the intellectual
property subject of this Agreement for all purposes, subject only to the
license granted under the terms hereof to LICENSEE, and so long as
LICENSEE abides by, performs and continues to perform and observe the
conditions and covenants of this Agreement. LICENSOR and LICENSEE agree
that the relationship between them is of independent contractors and not
as principal and agent or employer and employee, and that neither party
shall have the right to bind the other by contract or otherwise, except
to the extent that the parties have bound themselves by the terms
hereof. In like manner, neither party shall be liable for the debts or
obligations of the other party, and each party shall indemnify and hold
the other party harmless from and against any of the other's debts or
liabilities, including any attorney's fees and costs incurred in
defending against any claim of debts or obligations that may be asserted
by a third party against the other party.
3.06 In the event that LICENSEE makes any improvements to the LICENSED
PRODUCTS, all such improvements shall be owned by LICENSOR and in the
event of termination of this Agreement, the ownership of, and the right
to own any such improvements, just as the rights licensed hereby, shall
revert to and become the sole and exclusive property of LICENSOR.
ARTICLE IV
Sublicenses
4.01 LICENSOR does NOT hereby grant or convey, to LICENSEE, directly,
indirectly, or in any other manner or capacity, the power or other
ability to sublicense any of the LICENSED PATENTS or LICENSED PRODUCTS
in any manner without the prior written consent of LICENSOR.
ARTICLE V
Compensation, Payments and Reports
5.01 LICENSEE agrees to pay LICENSOR a five percent (5%) royalty on all NET
SALES PRICE proceeds as defined in Article 2.05 above. In this regard,
LICENSEE shall use its best efforts in assisting LICENSOR to collect all
royalties and other payments due from it. LICENSEE shall promptly
report any payment defaults; such reports shall include a showing of
LICENSEE's diligent efforts to collect the amounts due, and all measures
contemplated to collect at LICENSEE's expense any overdue funds;
additionally, such report shall include an offer by LICENSEE to assign
to the LICENSOR any cause of action to collect the defaulted payment and
LICENSOR shall have the right to initiate and/or continue such action,
as the case may be, in LICENSEE's name if procedurally required,
otherwise, in LICENSOR's name. LICENSEE shall cooperate with LICENSOR
in the initiation and/or continuation of such action, as the case may
be; however, LICENSEE shall not be liable for MONIES due under this
Article V but which are not collected.
5.02 LICENSEE agrees to make written reports to LICENSOR quarterly within
forty-five (45) days after the end of each QUARTER CONTRACT YEAR, and
stating in each report, the number and description, and the aggregate
NET SALES PRICE of LICENSED PRODUCTS sold or otherwise disposed of
during the preceding QUARTER CONTRACT YEAR, and upon which money is
payable as provided in this Article V.
5.03 The quarterly reports pursuant to Section 5.02 of Article V hereinabove
shall fully explain the computation of all MONIES due. In the event
that reports and payments to LICENSOR include funds or royalties
collected on a NET SALES PRICE expressed in a currency another than
U.S.A. dollars, then such payments shall be reported and made in U.S.A.
dollars, or at LICENSOR's option, in the equivalent of U.S.A. dollars,
at the buying rate of exchange current on the day when each such payment
became due.
5.04
(a) Concurrently, with the making of each report pursuant to Sections
5.02 and 5.03 of this Article V, LICENSEE shall pay to LICENSOR all
MONIES due on the NET SALES PRICE for all LICENSED PRODUCTS included in
the report.
(b) All payments made hereunder shall be in U.S.A. dollars, and
remitted to such bank as shall be designated by LICENSOR from time to
time, all such remittances to be made by prepaid cable.
(c) Any value added taxes, withholding or similar taxes (other than
U.S. taxes, if any) due and payable on any payments made or to be made
to LICENSOR by LICENSEE under the terms of this Agreement shall be borne
by LICENSEE.
5.05 The ROYALTY BEARING PRODUCT(S) shall be considered to be sold when
invoiced or otherwise disposed of, or upon any termination of this
License, all shipments made on or prior to the date of such expiration
or termination, which have not been invoiced out prior thereto, shall be
considered as sold, or when used or otherwise disposed of as the case
may be and, therefore, subject to payment of royalty.
5.06 LICENSEE agrees to keep sufficiently detailed records of the LICENSED
PRODUCTS manufactured, used, sold and/or otherwise disposed of, by or
for it to permit verification of the reports and payments to be made to
LICENSOR. LICENSEE shall permit such records to be examined, at
LICENSOR's expense, and upon reasonable notice, by independent
accountants designated by LICENSOR, to the extent necessary to verify
the reports, records and payments provided for herein. LICENSEE agrees
not to destroy any such records prior to the expiration of two years
subsequent to the termination of this Agreement.
5.07 In the event an examination by LICENSOR of LICENSEE's records and books
of account reveal an underpayment to LICENSOR for any CONTRACT YEAR, the
LICENSEE shall immediately pay LICENSOR the deficiency with interest
from and after the date such payment was properly due, at the highest
applicable lawful corporate interest rate not to exceed twelve (12%)
percent per annum; provided however, in no event shall such interest be
due or payable for a period in excess of thirty-six (36) months from the
date any payment was properly due. In the event the underpayment under
this Article 5.07 exceeds ten (10%) percent of the amount actually paid
by LICENSEE, LICENSEE shall pay the reasonable cost of the examination
which reveals such deficiency.
5.08 It is understood and agreed by LICENSEE that payments made by LICENSEE
to LICENSOR pursuant to the provisions of this Agreement shall be non-
returnable to LICENSEE in the event that this License is terminated or
for any reason; except that LICENSOR shall repay to LICENSOR any
erroneous overpayment upon notification thereof in writing to LICENSOR;
provided, however, that such repayment shall be based on reasonable and
mutually agreeable terms and will be made only from subsequent payments
due LICENSOR pursuant to Article V and; provided, further, that LICENSOR
shall not be obligated to repay any such overpayments which have
occurred prior to thirty-six (36) months from the date of such
notification.
ARTICLE VI
Payment of Patent Prosecution Costs, Other Patent Office Fees
and Related Attorney's/Agent's Fees
6.01 LICENSEE agrees to reimburse LICENSOR for all expenses incurred by
LICENSOR in connection with the filing, prosecution, issue and
maintenance of all letters patents and patent applications, foreign or
domestic, included in LICENSED PATENTS, as may be subsequently amended
by mutual agreement, such reimbursement to cover attorney's fees, patent
office fees, amendment fees, issue and maintenance fees, and translation
and related fees and expenses with respect to any letters patent or
patent applications, utility model or design, included within the scope
of LICENSED PATENTS. LICENSEE agrees to pay upon receipt of invoices,
all reimbursable costs promptly to LICENSOR or to the respective
attorney as may be agreed upon from time to time.
ARTICLE VII
Representations, Warranties, and Limitations
7.01 Nothing in this Agreement shall be construed as:
(a) A warranty or representation by either party to this Agreement as
to the validity of any letters patent or applications for letters
patent included in the LICENSED PATENTS; or
(b) A warranty or representation by either party to this Agreement
that anything made, used, sold, or otherwise disposed of, under
any License granted in this Agreement, is or will be free from
infringement of patents of third parties; or
(c) An obligation to bring or prosecute actions or suits against third
parties for infringement of any patent, trademark or tradename.
7.02 It is understood and agreed that, while LICENSOR believes that he has
the right to confer, grant and authorize the use of the trade symbols
and LICENSED PATENTS and LICENSED PRODUCTS hereunder, that neither this
Agreement, nor any provisions herein shall constitute an express or
implied warranty of title to such intellectual property by LICENSOR and
that no subsequent determination by any court or other adjudicative
tribunal having appropriate authority that Licensor does NOT possess,
own or have authority to convey all or any portion of the rights,
authority and benefits attempted to be conveyed and transferred to
LICENSEE hereunder, shall NOT give LICENSEE any right to an action for
damages against LICENSOR, nor to compel performance by LICENSOR, nor
shall LICENSEE be entitled to recover any compensation or consideration
heretofore paid or given by LICENSEE to LICENSOR for the various
exclusive Licenses granted herein. In this regard, LICENSEE has had
ample time and opportunity to confirm whether or not, in its judgment,
LICENSOR owns or has a proprietary interest in and to the various rights
granted herein and hereby.
ARTICLE VIII
Non-Confidential and Technical Information
8.01 LICENSEE agrees that in the event of termination of this Agreement, it
will make no further use of the LICENSED PATENTS or LICENSED PRODUCTS
and that it will, within 10 days of such termination, deliver to
LICENSOR all proprietary information in its possession which is in
written or other tangible form (including copies thereof), together with
all other tangible property which LICENSEE has in its possession and
shall place an identical responsibility on all its SUBLICENSEES, if any
exist at or by such time.
8.03 The parties further agree that LICENSEE shall have the right to disclose
any non-protected proprietary information about the LICENSED PRODUCTS to
third parties only after obtaining from such third parties duly binding
confidentiality agreements in a form acceptable to LICENSOR. Further,
the parties agree that all third parties, including any prospective
SUBLICENSES, shall be entitled to use the proprietary information made
available to them under this Agreement only for the purpose of
manufacturing, selling, and/or otherwise disposing of the LICENSED
PRODUCTS for the benefit of LICENSOR and LICENSEE and for no other
purpose.
ARTICLE IX
Transferability of Rights and Obligations
9.01 The interests of the LICENSEE under this Agreement and its right to use
and benefit from the LICENSED PATENTS and LICENSED PRODUCTS,
specifically, all of the intellectual property subject of this
Agreement, is NOT assignable, transferable or capable of conveyance,
subletting or otherwise in whole or in part without the express written
consent of the LICENSOR first had and obtained. It is also agreed that
any such attempt by LICENSEE to assign, sublicense, transfer or
otherwise part with any of the rights conferred hereunder, shall be
absolutely void and unenforceable without the advance written consent of
LICENSOR first had and obtained.
9.02 This Agreement, and each and every one of the terms and conditions
thereof, shall inure to and be binding upon the assignees, heirs and
legal representatives of LICENSOR, including any successor business of
LICENSOR.
ARTICLE X
Legal Proceedings
10.01 LICENSEE shall notify LICENSOR of any alleged infringement by a third
party of any claim of any of the LICENSED PATENTS, or of any suit
brought seeking a Declaratory Judgment with respect to any claim of any
of the LICENSED PATENTS or LICENSED PRODUCTS, and therewith shall
request that LICENSOR proceed to take steps to end such infringement or
defend such suit, as the case may be. Should LICENSOR decline, within
ninety (90) days of such Notice to initiate legal action, LICENSEE
shall, upon Notice to LICENSOR, and at LICENSEE's expense, have the
right to initiate such action. LICENSOR shall cooperate with LICENSEE
in the initiation of such action, provided, however, that LICENSEE shall
reimburse LICENSOR for all costs and expenses incurred by LICENSOR.
LICENSEE shall retain one-half (1/2) of all damages and costs awarded in
such action, less the costs and expenses borne by LICENSEE and by
LICENSOR, if any.
ARTICLE XI
Arbitration
11.01 In the event of any controversy or claim arising out of this Agreement
or the breach thereof, the parties shall try to settle these conflicts
amicably among themselves. Should this prove impossible, the matter in
dispute shall be settled by arbitration.
11.02 In the event of any dispute or controversy as to which arbitration is
called for, the same shall be submitted to and determined by arbitration
in Salt Lake City, Utah, in accordance with the rules then obtaining of
the American Arbitration Association. Compliance with this Section
11.02 shall be a condition precedent to the bringing of any suit
relating to said dispute or controversy, and the award rendered in any
such arbitration proceeding shall be final and binding and may be
entered in any court of appropriate jurisdiction. All notices of demand
for arbitration hereunder or application to a court of appropriate
jurisdiction for an order directing that arbitration proceed hereunder,
or confirming, vacating, modifying, correcting or otherwise affecting
any award rendered pursuant to this Section 11.02 shall be deemed
sufficient if served in the same manner as any other notice provided for
herein.
ARTICLE XII
Term and Termination
12.01 In the event that LICENSEE shall be adjudicated bankrupt, go into
liquidation, receivership or trusteeship, make a composition with its
creditors or enter into any similar proceeding of the same nature, then
LICENSOR shall have the right, without liability therefor, to terminate
this Agreement forthwith by notice in writing to LICENSEE.
12.02 In the event LICENSOR shall, under the circumstances stated in Section
12.01 of this Article XII, terminate this Agreement, LICENSEE may be
granted as an incident to such declaration, a non-assignable, non-
exclusive license to continue any manufacturing operation owned or
controlled by LICENSEE then in existence, at royalty rates to be agreed
upon. This right and license shall lapse if LICENSEE gives up and/or
loses its full ownership and/or control of such manufacturing
capability.
12.03 LICENSEE may terminate this Agreement, at any time by giving LICENSOR
thirty (30) days written notice of termination. This Agreement may also
be terminated upon the mutual agreement of LICENSOR and LICENSEE.
12.04 This Agreement shall run to the end of the life of the last to expire of
any LICENSED PATENTS, unless sooner terminated as otherwise provided
herein.
12.05 In the event of the failure of LICENSEE to comply with any of the terms
of this Agreement, the LICENSOR shall have the right to give notice in
writing to LICENSEE that this Agreement is hereby and forthwith
terminated and cancelled; provided that, during the thirty (30) days'
period after date of such notice, LICENSEE shall have the opportunity
and privilege of reinstating this Agreement by making good within said
thirty (30) days, the breach on account of which the Agreement was
terminated. Times of payment and strictness of performance are of the
essence of this Agreement throughout. All such strictness as to time
payment and right of cancellation, it is mutually agreed, is
necessitated by the fact that such business is, itself, under patents
limited as to time. Also, it is expressly agreed and understood that
any such cancellation by LICENSOR, as hereinbefore provided for, shall
not in anywise release LICENSEE from its liability to make any payments
due from the date hereof under this Agreement.
12.06 The word "termination" as used in this Agreement, is to be read, except
where the contrary is specifically indicated, as omitting from its
effect the following rights and obligations, all of which shall survive
any termination to the degree necessary to permit their complete
fulfillment or discharge:
(a) LICENSEE's obligation to supply a termination report at the time
of any termination of any patents, as specified in Article V of
this Agreement;
(b) LICENSOR's right to receive or recover, and LICENSEE's obligation
to pay MONIES upon collection, accrued or accruable for payment,
at the time of any termination;
(c) LICENSEE's obligation to maintain records, and LICENSOR's right to
examine LICENSEE's books and records, as provided in Article V of
this Agreement; and
(d) LICENSEE's obligation to keep confidential any or all of
LICENSOR's proprietary information, as contemplated in Article
VIII hereof.
12.07 In the event of termination as provided for herein, all of the licensed
rights subject of this Agreement shall immediately revert to and become
the property of the INVENTOR/LICENSOR and all such rights and property
shall thereafter be and remain INVENTOR/LICENSOR's sole, exclusive and
separate property.
ARTICLE XIII
General Provisions
13.01 LICENSEE agrees to use its best efforts to accelerate the manufacturing
and marketing for, and of, the LICENSED PRODUCTS.
13.02 In the event that any part of provision of this Agreement is held
unenforceable or in conflict with the laws of the United States and such
part or provision does not materially effect the rights of the parties
herein, then this Agreement shall be interpreted and construed as if
such term or provision to the extent the same shall beheld to be
invalid, illegal or unenforceable had never been contained herein.
13.03 LICENSEE agrees that all modules of LICENSED PRODUCTS and all general
advertising literature such as leaflets, magazine publications or
advertisements and the like, relating to LICENSED PRODUCTS manufactured
under this Agreement may be marked as being "manufactured under license
to Easy Golf Corporation."
ARTICLE XIV
Disclaimer and Hold Harmless Provision
14.01 It is understood and agreed by and between the parties hereto that
LICENSOR is a researcher and inventor who has reduced to practice and
demonstrated the feasibility of his inventive concepts in the LICENSED
PRODUCTS by means of various prototypes demonstrated to LICENSEE and
pursuant to an appropriate confidentiality agreement(s). However,
nothing contained in this Agreement shall constitute or be construed to
constitute any undertaking, representation, suggestion, inducement,
warranty, assurance of guarantee whatsoever by LICENSOR in connection
with the LICENSED PRODUCTS with respect to safety, quality, yield,
production, cost, profit, demand, utility, design, performance,
availability of raw materials, accident or injury to person or property.
14.02 Neither of the parties hereto shall be liable in damages or have the
right to cancel for any delay or default in performing hereunder if such
delay or default is caused by conditions beyond its control, including
but not limited to Acts of God, governmental restorations, continuing
domestic or international problems such as governmental restrictions,
continuing domestic or international problems such as war or
insurrections, strikes, fires, floods, work stoppages, embargoes, and/or
other casualty or cause; provided, however, that any party hereto shall
have the right to terminate this Agreement upon thirty (30) days prior
written notice if either party is unable to fulfill its obligations
under this Agreement due to any of the above-mentioned causes and such
inability continues for a period of six (6) months.
14.03 LICENSEE shall indemnify and hold harmless LICENSOR, and all officers,
agents and employees of LICENSOR, from any liability and expense
(including reasonable attorney's fees, costs and expenses) with respect
to all claims arising from any activity required by or carried out by
LICENSEE in connection with the implementation of the present Agreement,
regardless of whether caused by negligence, either active or passive, on
the part of LICENSOR, his agents, family members or employees.
ARTICLE XV
Notice
15.01 Any notice, report, or payment, provided for in this Agreement, shall be
deemed sufficiently given when sent by certified or registered mail,
addressed to the party for whom intended, at the address given at the
outset of this Agreement or at such changed address as that party shall
have previously specified by written notice to the other.
ARTICLE XVI
Integration
16.01 This instrument contains the entire and only Agreement between the
parties, and supersedes all pre-existing agreements between them,
respecting its subject matter. Any representation, promise, or
condition in connection with such subject matter, which is not
incorporated in this Agreement, shall not be binding upon either party.
No modification, renewal, extension, waiver, and no termination of this
Agreement, or any of its provisions (except as provided in Section 12.06
of Article XII, hereof) shall be binding upon the party against whom
enforcement of such modification, renewal, extension, waiver, or
termination is sought, unless made in writing and signed on behalf of
such party by a duly authorized representative.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed, in duplicated originals, by its duly authorized representative,
effective as of the date first-above written.
BIO-THRUST, INC., a Utah corporation
/s/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Director and Vice President
BIO-THRUST, INC., a Utah corporation
/s/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Director and Secretary/Treasurer
Xxxx Xxxxxxx Xxxxxx dba
EASY GOLF
/s/Xxxx Xxxxxxx Xxxxxx
