Exhibit 10.12
Trademark License And Technology Agreement with Advanced Grout Systems, Ltd
TRADEMARK LICENSE AND TECHNOLOGY
LICENSE AGREEMENT
THIS TRADEMARK LICENSE AND TECHNOLOGY LICENSE AGREEMENT ("Agreement")
is made and entered into as of the tenth day of January, 2002 by and between
ADVANCED GROUT SYSTEMS, LTD., an Ohio limited liability company, of 0000
Xxxxxxxxxxx Xxxxxx XX, Xxxxxx, Xxxx 00000 ("Licensor"), and TECHNOLOGY VISIONS
GROUP, INC., a Delaware corporation, of 0000 Xx Xxxxx Xxxxx, Xxxxx 000,
Xxxxxxxx, Xxxxxxxxxx 00000 ("Licensee").
A. Licensor is the owner of the trademark listed with the United States
Patent and Trademark Office under Serial No. 76320771 dated 10-3-2001,
and known as GMENT (Trademark);
B. Licensee wishes to use certain technologies owned by Licensor (the
"Product Technology") to manufacture the following product under the
Trademark: GMENT (Product). The Product Technology is identified on
EXHIBIT A attached hereto and incorporated herein by this reference;
C. Licensor is also in the business of developing other waste management
technologies which Licensor desires to offer Licensee the first
opportunity to use to manufacture 1.) Additional product(s) under or
associated with the Trademark (Additional Trademark Product
Technology); or 2.) Additional product(s) manufactured without the use
of or without association with the Trademark (Additional Non-Trademark
Product Technology). The Additional Trademark Product Technology and
Additional Non-Trademark Product Technology shall be collectively
referred to hereinafter as the "Additional Technologies;"
D. All Additional Trademark Product Technology, subject to SECTION 3.0 and
SECTION 4.0 of this Agreement, shall be included and identified on
EXHIBIT B, attached hereto and made a part hereof, and all Additional
Non-Trademark Product Technology, subject to SECTION 3.0 and SECTION
4.0 of this Agreement, shall be included and identified on EXHIBIT C,
attached hereto and made a part hereof. The Additional Technologies
accepted pursuant to SECTION 3.0 and SECTION 4.0, and the Product
Technology shall be collectively referred to herein as the
"Technologies."
E. Licensee owns plant, production, distribution marketing and sales
facilities and/or capabilities capable of producing, distributing,
marketing and selling the Product and products made from the Additional
Technologies (Additional Products) in accordance with the quality
standards hereinafter established by Licensor for the Product and to be
established by the Licensor for the Additional Products; and
F. Both parties are desirous that 1.) Licensee manufacture, distribute,
market and sell the Product under the Trademark; 2.) Subject to SECTION
3.0 and SECTION 4.0 of this Agreement, Licensee manufacture,
distribute, market and sell those Additional Products made from the
Additional Trademark Product Technology under the Trademark; 3.)
Subject to SECTION 3.0 and SECTION 4.0, Licensee manufacture,
distribute, market, and sell those Additional Products made from the
Additional Non-Trademark Technology under future trademarks of
Licensor. All such use to be pursuant to the terms and conditions
contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, the parties do hereby agree as follows:
1.0 INCORPORATION OF RECITALS. The recitals contained above are
incorporated herein by this reference.
2.0 GRANTS.
A. TRADEMARKS.
i.) THE TRADEMARK. For the use, the Term (as hereinafter
defined), in the Territory (as hereinafter defined),
and on the terms and subject to the conditions
hereinafter set forth, Licensor hereby grants to
Licensee the right to use, and Licensee hereby
undertakes to use, the Trademark in the manufacture
and sale of the Product and Additional Products made
from the Additional Trademark Product Technology; and
ii.) FUTURE TRADEMARKS OF ADDITIONAL PRODUCTS. Subject to
SECTION 3.0 and SECTION 4.0, for the use, the Term
(as hereinafter defined), in the Territory (as
hereinafter defined) and on the terms and subject to
the conditions hereinafter set forth, Licensor shall
grant to Licensee the right to use, and Licensee
shall undertake to use any future trademarks owned by
Licensor and to be used with the products
manufactured from the Additional Non-Trademark
Technology if such Additional Non-Trademark
Technology is accepted by Licensee pursuant to
SECTION 3.0 or SECTION 4.0.
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B. TECHNOLOGY.
i.) PRODUCT TECHNOLOGY. For the use, the term (as
hereinafter defined), in the Territory (as
hereinafter defined), and on the terms and conditions
hereinafter set forth, Licensor also hereby grants to
Licensee the right to use, and Licensee undertakes to
use, the Product Technology to manufacture and sell
the Product.
ii.) ADDITIONAL PRODUCT TECHNOLOGY. For the use, the term
(as hereinafter defined), in the Territory (as
hereinafter defined), and on the terms and conditions
hereinafter set forth, Licensor shall grant to
License the right to use and Licensee shall undertake
to use the Additional Product Technology if such
Additional Product Technology is accepted by Licensee
pursuant to SECTION 3.0 and SECTION 4.0.
3.0 LICENSOR'S FIRST RIGHT OF REFUSAL. All Additional
Technology/Non-trademark Technology (shall first be offered by Licensor
to Licensee to be used in the manufacture, distribution, marketing, and
selling of products made from such Additional Technology pursuant to
the terms and conditions of this Agreement. Licensor shall forward to
Licensee a written report of the specifications, directions, and
processes of the Additional Technology. The Licensee shall send written
notice to the Licensor of Licensee's election of acceptance or refusal
to manufacture, distribute, market, and sell products made from the
Additional Technology. The failure of the Licensee to provide written
notice to Licensor of Licensee's election of acceptance or refusal to
manufacture, distribute, market, and sell the Products made from the
Additional Technology within thirty (30) days of receiving Licensor's
written report shall constitute a refusal of the opportunity to
manufacture, distribute, market, and sell the products made from the
Additional Technology. Upon Licensee's written refusal of the
opportunity to manufacture, distribute, market, and sell the products
made from the Additional Technology or upon the passing of thirty (30)
days from Licensee's receiving Licensor's written report regarding the
Additional Technology without Licensee's delivery to Licensor of a
written acceptance or refusal of the opportunity, the Licensee shall be
free to manufacture, distribute, market, and sell products made from
the Additional Technology or license or otherwise make disposition of
the Additional Technology at its sole discretion in any manner Licensor
deems fit, and Licensee shall have no rights in and to the refused
Additional Technology. As reflected in the Recitals hereto, it is
understood that the Additional Technology is limited to those
technologies dealing with environmental remediation/waste management
technologies developed by Licensor or its affiliated companies.
"Affiliated Companies" means Sehn Technical Corporation and Envital,
Ltd., and any other companies controlled by licensor and or their
successors.
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4.0 ADDED TECHNOLOGY AND TRADEMARKS.
A. ADDITIONAL TECHNOLOGY. All Additional Trademark Product
Technology offered by Licensor, pursuant to SECTION 3.0 of
this Agreement, and accepted by Licensee to manufacture,
distribute, market, and sell under or in association with the
Trademark pursuant to the terms and conditions of this
Agreement shall be identified and listed on EXHIBIT B upon
acceptance of the Additional Trademark Product Technology by
Licensee. All Additional Non-Trademark Product Technology
offered by Licensor, pursuant to SECTION 3.0 of this
Agreement, and accepted by Licensee to manufacture,
distribute, market and sell products made from the Additional
Non-Trademark Product Technology pursuant to the terms and
conditions of this Agreement shall be identified and listed on
EXHIBIT C upon acceptance by Lessee. All Additional Technology
that becomes a part of the terms and conditions of this
Agreement is limited to the technology identified and listed
on EXHIBIT B and EXHIBIT C.
B. TRADEMARKS. All additional trademarks used to identify or used
in association with the Additional Non-Trademark Technology
shall be identified and listed on EXHIBIT D attached hereto
and incorporated herein by this reference (the "Additional
Trademarks"). All such Additional Trademarks that become a
part of this Agreement are limited to the Additional
Trademarks identified and listed on EXHIBIT D.
5.0 USE.
A. PRODUCT TECHNOLOGY. Licensee shall manufacture, distribute,
market, and sell the Product and products made from the
accepted Additional Technology/Non Trademark Technology in
accordance with the specifications, directions, and processes
furnished to the Licensee by the Licensor from time to time.
The quality of the Product and products made from the accepted
Additional Technology as manufactured by the Licensee shall be
satisfactory to the Licensor or as specified by it or approved
by it.
B. TRADEMARK. Licensee shall manufacture, distribute, market, and
sell the Product and those products made from the accepted
Additional Trademark Product Technology using the Trademark.
The Trademark shall not be used with any other products.
C. ADDITIONAL TRADEMARKS. Licensee shall manufacture, distribute,
market and sell those products made from the accepted
Additional Non-Trademark Technology using any such Additional
Trademark set forth on EXHIBIT D for such Non-Trademark
Product Technology.
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D. TIMING. Licensee shall, upon signing this Agreement, begin use
of the Product Technology and Trademark immediately so that it
can manufacture, distribute, market and sell the Product as
soon as is reasonably possible. Immediately, upon acceptance
of any Additional Technology or Additional Trademarks, the
Licensor shall begin use of the same so that it can
manufacture, distribute, market, and sell the products made
from such Additional Technology as soon as is reasonably
possible.
E. REMOVAL OF TECHNOLOGY OR TRADEMARKS FROM AGREEMENT.
(i) NON-USE. If Licensee fails to use the Technology
and/or Trademark or Additional Trademarks to
manufacture, distribute, market and sell the products
as set forth in this SECTION 5.0, Licensor may remove
such "non-used" Trademark, Additional Trademark or
Technologies from this Agreement by deleting the same
from the applicable exhibit or exhibits attached
hereto. "Failure to use" shall be defined as failure
to in good faith use the Technologies, Trademark
and/or Additional Trademarks to manufacture,
distribute, market and sell such products for a
period of two years while not in diligent pursuit of
effectuating such manufacture, distribution,
marketing and selling of such products.
(ii) MUTUAL AGREEMENT. Any of the Technologies, the
Trademark, or the Additional Trademarks may be
removed from this Agreement by the mutual agreement,
in writing, of all the parties.
(iii) TECHNOLOGY OR TRADEMARKS ONCE REMOVED. Once any of
the Technologies or the Trademark or any Additional
Trademarks licensed hereunder is removed from this
Agreement, Licensee shall have no rights in or to the
same and Licensor shall be free to use such
Technologies, Trademark or Additional Trademark in
its sole discretion and this Agreement shall no
longer apply to such Technologies, Additional
Trademarks, or the Trademark so removed.
(iv) CUMULATIVE REMEDY. The Licensor's right of removal of
any of the Technologies, the Trademark, or the
Additional Trademarks from this Agreement for non-use
is in addition to and not in substitute of any other
remedies available to Licensor for Licensee's breach
of its use obligations contained in this Agreement.
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6.0 EXCLUSIVITY. The rights and license granted to Licensee hereunder is
exclusive subject to Licensee's acceptance as provided under SECTION
3.0 and SECTION 4.0 of this Agreement, and, so long as Licensee duly
performs its obligations hereunder, Licensor shall not itself use or
grant others the right or license to use the Trademark, the accepted
Additional Trademarks or Non Trademark Technology, and the Technology
for the manufacture or sale of products in the Territory without
written consent from the Licensee which shall not be unreasonably
withheld.
7.0 TERRITORY. The rights granted to Licensee hereunder are for the
following territory: United States of America and the other countries
of the world (Territory).
8.0 INSPECTIONS. Licensee will permit duly authorized representatives of
the Licensor to inspect on the premises of the Licensee at all
reasonable times the Product and use of the Trademark, the Additional
Trademarks, and the Technologies, and shall, upon request of the
Licensor, submit to the Licensor, or to its duly authorized
representatives, samples of the Product and products made from the
Additional Technology which it manufactures, distributes, markets,
sells or intends to manufacture, distribute, market, or sell for the
purpose of ascertaining or determining compliance with SECTION 5.0 of
this Agreement.
9.0 ADVERTISING; LABELING.
A. ADVERTISING WITH TRADEMARKS. Whenever Licensee uses the
Trademark or accepted Additional Trademarks in advertising or
in any other manner, Licensee shall clearly indicate the
Licensor's ownership of the Trademark or accepted Additional
Trademarks. Licensee shall provide Licensor with samples of
all literature; packages, labels, and labeling prepared by the
Licensee containing the Trademark or accepted Additional
Trademarks. When using the Trademark or accepted Additional
Trademarks under this Agreement, Licensee shall comply with
all laws of the United States and of the other countries where
the Product and the Additional Products are manufactured,
distributed, marketed, or sold.
B. LABELING. Licensee shall xxxx all products or their containers
or labels which are made, distributed, marketed or sold or
otherwise disposed of by Licensee under the licenses granted
herein in such manner as is required to protect or preserve
Licensor's rights to the Technology under applicable law
and/or as is customary in the market for such products with
the words and/or numerals indicating the patent status of the
Technology, if any.
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10.0 ASSIGNMENT. The rights granted in this Agreement to Licensee above
shall be non-divisible and shall not be transferable, licensable, or
assignable without the Licensor's prior written consent, which shall
not be unreasonably withheld. Any such assignment, license, or transfer
without such consent shall be void and of no effect.
11.0 FEE AND ROYALTIES. As consideration for Licensor's grant of the above
licenses, Licensee shall sell and transfer one million (1,000,000)
stock shares, free and clear of all liens, encumbrances, and
restrictions other than those required under Securities and Exchange
Commission regulations, of Licensee's publicly traded stock shares to
Licensor or Licensor's designees in such proportions as requested by
Licensor. Licensor represents that it is a sophisticated investor and
understands the risks involved in startup companies and accepts the
stock without a view toward distribution. As additional consideration,
Licensee shall pay Licensor a royalty (the "Royalty") of ten percent
(10.0%) of the gross sales derived by Licensee from the sale of the
Product and the Additional Products for sales up to $1M, 9% from $1M to
$5M, 8% from $5M to $10M, 7% from $10M to $25M, and 6% for sales
exceeding $25M. The Royalty shall be payable quarterly per accounting
referred to in SECTION 13.0 of this Agreement. The Licensee hereby
warrants and represents that it has full legal authority to issue the
stock shares and full legal power to transfer the same in accordance
herewith. In reliance on Licensor's representations, Licensee shall
provide to Licensor, its counsel's opinion that the payment of stock as
required herein is authorized by Licensee, and is not a violation of
any law or governmental regulation.
12.0 CONSULTING FEE AND EXPENSES. Licensee shall pay to Licensor a
consulting fee of One Hundred Twenty-Five Dollars ($125.00) per hour
for the man hour time of Licensor for consulting with Licensee in the
use of the technologies licensed herein, the manufacture, marketing,
and distribution of the Product and Additional Products. Said hourly
fee rate shall increase three percent (3%) per year compounded annually
for each year after 2002. Consulting services may be initiated by
either written or verbal request by licensee but will always be
confirmed in writing. In addition, Licensee shall reimburse Licensor
for all Licensor's expenses incurred in the Licensor's consultation
services provided to Licensee under this SECTION 12.0, including, but
not limited to, travel and accommodation expenses. Licensor shall
submit to Licensee the Licensor's consulting fee and Licensor's
invoices for expenses Licensor incurred in the consultation services to
Licensee. Licensee must pay Licensor the Licensor's consulting fee and
reimburse Licensor's expenses within forty-five (45) days of Licensor's
written submission to Licensee. In the absence of a dispute, the
failure of the Licensee to pay Licensor the Licensor's consulting fees
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and reimburse Licensor's expenses within forty five (45) days of
Licensor's written submission to Licensee shall constitute a breach of
this Agreement. All amounts past due shall be charged with interest of
eighteen percent (18%) per annum.
13.0 ACCOUNTING. Within thirty (30) days after the end of each calendar
quarter during the Term of this Agreement, Licensee shall provide to
Licensor a written accounting of all gross sales of the Product and
Additional Products made during the preceding calendar month.
14.0 INSPECTION OF LICENSEE'S RECORDS.
14.1 RETENTION OF RECORDS. Licensee shall keep and maintain
complete and accurate records and documentation concerning the
manufacture, distribution and sale or other dispositions of
the Product and Additional Products, use of the Technology,
and the use of the Trademark and accepted Additional
Trademarks. Licensee shall retain such records and
documentation for not less than seven (7) years from the date
of their creation.
14.2 INSPECTION OF RECORDS. Licensor and its representatives and
agents shall have the right during the term of this Agreement
and for a period of four (4) years thereafter upon reasonable
notice to Licensee to inspect during regular business hours
the records and documentation required to be retained pursuant
to SECTION 14.1 of this Agreement.
14.3 COSTS OF INSPECTION. The costs of any inspection pursuant to
SECTION 14.2 hereof shall be borne by Licensor, unless as a
result of such inspection it is determined that the amounts
payable by Licensee to Licensor for the Royalty for any period
are in error by greater than one quarter percent (.25%), in
which case the costs of such inspection shall be borne by
Licensee. Licensor shall report the results of any such
inspection to Licensee, and Licensee shall promptly thereafter
pay to Licensor the amount of any underpayment of the Royalty,
and the amount of any overpayment shall be credited by
Licensor against future amounts payable by Licensee to
Licensor. In addition, Licensee shall pay interest on the
amount of any underpayment at a rate which is the highest rate
permitted by applicable law, from the date such amount was
underpaid to the date such amount is paid. The failure of
Licensor to pay the underpayment and accrued interest set
forth in Licensor's written notice of underpayment to Licensee
shall constitute a breach of this Agreement.
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15.0 INDEMNIFICATION.
A. PRODUCTS AND TECHNOLOGIES. Licensor assumes no liability to
Licensee or third parties with respect to the performance of
the Product, Additional Products, and the Technologies
licensed herein. Licensee shall indemnify, hold harmless and
defend Licensor and its officers, members, employees,
representatives, agents, successors and assigns, from and
against any and all claims, demands, lawsuits, actions,
proceedings, liabilities, losses, damages, fees, costs and
expenses (including without limitation attorneys' fees, court
costs, and costs of investigation and experts) resulting from
or arising out of the manufacture, use or sale of the Product
or Additional Products, or the exercise by Licensee of any
right granted hereunder, including without limitation any
liabilities, losses or damages whatsoever with respect to
death or injury to any individual or damage to any property
arising from the possession, use or operation of the Product
or Additional Products made from the Technologies and use of
the Technologies by Licensee or any third party in any manner
whatsoever.
B. STOCK TRANSFER. Licensee hereby warrants, indemnifies, defends
and holds Licensor or designee, its officers, agents, members,
employees, representatives, successors, assigns, and designees
(identified pursuant to SECTION 11.0 hereof) harmless from and
against any and all liability arising out of or in any way
relating to the transfer of stock shares of Licensee to
Licensor or its designees pursuant to SECTION 11.0.
16.0 INSURANCE. During the Term, Licensee shall maintain at all times during
and after the term of this Agreement comprehensive general liability
insurance, including product liability insurance, with reputable and
financially secure insurance carriers and having commercially
reasonable limits giving due consideration to the nature and extent of
such activities and the risks inherent therein regarding the Product,
the Additional Products and the use of the Technologies. Licensee shall
maintain insurance with a reputable and solvent insurance company duly
licensed with applicable government authorities. All such insurance
shall have Licensor as an additional named insured party and shall
provide for no cancellation or material alteration except upon at least
thirty (30) days prior written notice to Licensor. Licensee shall
timely provide Licensor with certificates of insurance evidencing such
coverage.
17.0 GOVERNMENTAL APPROVALS. Licensee shall, at its sole cost and expense,
use all reasonable efforts and diligence to seek and to obtain all
necessary domestic and foreign governmental approvals with respect to
the Product, Additional Products, and use of the Technology. Licensee
shall, at its sole cost and expense, perform or arrange for the
performance of all tests and trials of the Product, the Additional
Products, and the Technologies as shall be necessary to obtain such
approvals. The Licensor shall assist such efforts as part of its
consultation services pursuant to SECTION 12.0.
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18.0 COMPLIANCE WITH LAWS. Licensee shall conduct all activities pursuant to
this Agreement in an ethical and businesslike manner and in compliance
with all applicable laws, rules and regulations of all applicable
governmental authorities. Licensee shall provide to Licensor any data
compilations, records, reports, or other information regarding the
Product, Additional Products, and use of the Technologies that Licensor
may reasonably require for submission to any governmental authorities
in order to comply with any applicable laws, rules or regulations.
19.0 LICENSOR'S DISCLAIMERS.
A. NO PRODUCT OR TECHNOLOGY WARRANTIES. It is hereby expressly
understood and acknowledged that Licensee has inspected and
conducted due diligence concerning the Product and the Product
Technology, and will have inspected and conducted due
diligence concerning the Additional Products and the
Additional Technologies before acceptance of the same.
Therefore, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT,
LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER
EXPRESS OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) REGARDING THE PRODUCT, THE ADDITIONAL PRODUCTS, OR
THE TECHNOLOGIES.
B. INFRINGEMENT. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES,
EITHER EXPRESS OR IMPLIED, THAT THE PRODUCT, THE ADDITIONAL
PRODUCTS, OR USE OF THE TECHNOLOGIES WILL NOT INFRINGE ANY
PATENT, COPYRIGHT OR OTHER RIGHTS OF ANY THIRD PARTY OF ANY
KIND OR NATURE WHATSOEVER.
20.0 INFRINGEMENT.
20.1 THIRD PARTY INFRINGEMENT. In the event that either party
learns of facts which it concludes might constitute an
infringement of the Product, Additional Products, the
Trademark, the Additional Trademarks, Non-Trademark Technology
or the Technology by any third party during the term of this
Agreement, the party learning of such facts shall promptly
notify the other party in writing, setting forth such facts
and the basis for its conclusion, and shall include with such
notice any other reasonably available evidence in support
thereof. The Parties will then decide what specific action
will be taken.
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20.2 INDEMNIFICATION. Licensee shall indemnify, hold harmless and
defend Licensor and its officers, directors, employees,
representatives and agents, from and against any and all
claims, demands, lawsuits, actions, proceedings, liabilities,
losses, damages, fees, costs and expenses (including without
limitation attorneys' fees and costs of investigation and
experts) resulting from or arising out of any claim that the
Licensee's manufacture, use, sale or other disposition of the
Product, Additional Products, the Trademark, the Additional
Trademarks, and the Technology infringe or violate any patent,
copyright, trademark, or other right of any third party.
21.0 TERM. Except as otherwise provided herein, this Agreement shall remain
in full force and effect for twenty-five (25) years with the term
commencing on December 1, 2001, and continuing until November 30, 2026
(Term).
22.0 TERMINATION. In the event that the Licensee fails to comply with any
provision of the Agreement, the Licensor may terminate this Agreement
upon not less than thirty (30) days written notice to the Licensee, but
if the Licensee shall correct such default during the notice period to
the Licensor's satisfaction at Licensor's sole discretion, the notice
shall be of no further force or effect. This Agreement may be
terminated by Licensor if action by any governmental authority renders
impossible performance under this Agreement by either party. Licensee
may terminate this Agreement upon written notice of breach to Licensor,
and Licensor fails to remedy such breach within thirty (30) days after
receiving such notice. Upon the termination or expiration of the term
of this Agreement, the licenses granted by Licensor to Licensee
pursuant to this Agreement shall terminate unless Licensor specifically
agrees in writing otherwise on a case-by-case basis. Notwithstanding
any termination or expiration of the term of this Agreement, Licensee
shall be permitted for a period of not more than six (6) months from
and after such termination or expiration to sell or otherwise dispose
of all Product and Additional Products then in inventory and shall have
the obligation to pay to Licensor all amounts which have accrued or
shall accrue by reason of the sale of such Product and Additional
Products. Licensee shall not be entitled to any refund of any amounts
because of any termination or expiration of the term of this Agreement.
If the Licensee continues to manufacture the Product or Additional
Products or otherwise uses the licensed Technologies or the Trademark
or the accepted Additional Trademarks (except as allowed during the six
(6) month "wind down" period set forth in this SECTION 23.0) after the
termination or expiration of this Agreement, the Licensor shall have
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the right to seek any and all legal means, including seeking
preliminary and permanent injunctive relief, to have Licensee cease
from such activity. The Licensee shall pay Licensor for all legal
costs, including attorney fees, expert fees, and court costs Licensor
incurs as a result of Licensee's breach of this Agreement.
23.0 OWNERSHIP. Licensee acknowledges the Licensor's exclusive right, title,
and interest in and to the Trademark, the accepted Additional
Trademarks, and the Technologies licensed herein, and will not at any
time do or cause any act or thing contesting or in any way impairing or
tending to impair any part of such right, title and interest. Licensee
shall not in any manner represent that it has any ownership in the
Trademark, the accepted Additional Trademarks, and the Technologies or
registrations or patents thereof, and the Licensee acknowledges that
use of the Trademark, the accepted Additional Trademarks or
Technologies shall not create any right, title or interest in Licensee,
but all such uses shall inure to the benefit of Licensor. Upon
expiration or termination of the Agreement (except as allowed during
the six (6) month "wind down" period set forth in SECTION 23.0),
Licensee will cease and desist from all use of the Trademark, the
accepted Additional Trademarks, and Technologies in any way and will
deliver to Licensor or its duly authorized representatives the logotype
of the Trademark and the accepted Additional Trademarks together with
all advertising and promotional materials, labels and signs containing
the Trademark and the accepted Additional Trademarks, except to the
extent needed to sell existing inventories of the Product or Additional
Products during the six (6) month "wind down" period set forth in
SECTION 23.0. Upon expiration or termination of the Agreement, Licensee
will return to Licensee (and shall not retain copies of) all
repositories of Confidential Information as defined below, except to
the extent such Confidential Information is necessary to sell existing
inventories of the Product or Additional Products during the six (6)
month "wind down" period set forth in SECTION 23.0. However, all
logotypes, labels, promotional material signs and Confidential
Information shall be returned (with no copies being retained)
immediately after the six (6) month "wind down" period set forth in
SECTION 23.0.
24.0 CONFIDENTIALITY.
24.1 OBLIGATION. Each party acknowledges that this Agreement may
require the disclosure by one party to the other party of its
confidential and proprietary information ("Confidential
Information"). "Confidential Information" shall mean all
information concerning the business that each party treats as
confidential and does not ordinarily make publicly available,
including without limitation all reports, information and data,
in whatever form, regarding each party's customers, personnel,
finances or financial condition, plans, products, manufacturing
systems, specifications, chemical recipes, systems and plans,
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processes, equipment, materials, suppliers, costs, operations,
trade secrets, prospects, marketing and business strategies, the
licensed Technologies, and the refused Additional Technologies.
Each party shall regard and preserve Confidential Information as
secret and confidential, and neither party shall publish or
disclose any Confidential Information in any manner without the
prior written consent of the other party. Each party shall use
the same level of care to prevent the disclosure of the
Confidential Information of the other party that it exercises in
protecting its own Confidential Information and shall take all
reasonable precautions to prevent the disclosure of Confidential
Information to any third party.
24.2 PUBLICITY. Neither party shall without the prior written consent
of the other party disclose to any third party the existence of
this Agreement or any of its provisions unless such disclosure
is required under applicable law or in connection with the legal
enforcement of this Agreement.
24.3 Publication. Licensee shall not publish or arrange for the
publication in any scientific, trade or other publication
information concerning the Product and the Additional Products
and the Technologies without the prior written consent of the
Licensor, which consent shall be at Licensor's sole discretion.
24.4 Injunctive RELIEF. Each party acknowledges that in the event of
any breach or default or threatened breach or default by either
party of SECTION 24.1, SECTION 24.2, and SECTION 24.3 of this
Agreement, the other party may be irreparably damaged and that
it would be extremely difficult and impractical to measure such
damage, so that the remedy of damages at law would be
inadequate. Consequently, each party acknowledges and agrees
that the other party, in addition to any other available rights
or remedies, shall, without the necessity of posting any bond or
similar security, be entitled to specific performance,
injunctive relief and any other equitable remedy for the breach
or default or threatened breach or default of said SECTION 24.1,
SECTION 24.2, or SECTION 24.3, and each party waives any defense
that a remedy at law or damages is adequate.
25.0 LICENSEE'S REPRESENTATIONS. Licensee represents and warrants to
Licensor that the following are true and correct as of the Closing:
A. LICENSEE'S AUTHORITY. Licensee has full legal power to sign,
deliver, and perform this Agreement and all other agreements
and documents to be signed and delivered by Licensee in
connection herewith. The consummation of the transactions
contemplated hereby and the compliance by Licensee with the
terms of this Agreement do not and will not: (i) conflict with
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or result in the material breach of any of the terms or
provisions of any other agreement, arrangement, undertaking,
accord, document, or instrument to which Licensee is a party
or by which Licensee is bound; or (ii) constitute a material
violation of any applicable law to which Licensee or its stock
is bound or subject.
B. REQUISITE ACTIONS/BINDING ON LICENSEE. Licensee has taken the
requisite action to approve, sign, deliver and perform this
Agreement and each of the other agreements and documents
signed and delivered by or on behalf of Licensee in connection
herewith. This Agreement has been duly signed and delivered by
Licensee and constitutes a binding obligation of Licensee
enforceable in accordance with its terms. All other agreements
and documents signed and delivered by or on behalf of
Licensee, in connection with the transactions contemplated by
this Agreement, constitute the binding obligation of Licensee
enforceable in accordance with their respective terms.
Licensee shall provide upon execution hereof corporate
resolutions authorizing this Agreement.
26.0 LICENSOR'S REPRESENTATIONS. Licensor has taken the requisite action to
approve, sign, deliver and perform this Agreement and each of the other
agreements and documents signed and delivered by or on behalf of
Licensor in connection herewith. This Agreement has been duly signed
and delivered by Licensor and constitutes a binding obligation of
Licensor enforceable in accordance with its terms. All other agreements
and documents signed and delivered by or on behalf of Licensor, in
connection with the transactions contemplated by this Agreement,
constitute the binding obligation of Licensor enforceable in accordance
with their respective terms. Licensor shall provide upon execution
hereof-corporate resolutions authorizing this Agreement.
27.0 MISCELLANEOUS.
(a) NOTICES. Any and all notices or other communications required
or permitted by this Agreement or by law to be served on or
given to either party hereto by the other party hereto, shall
be in writing and shall be deemed duly served and given when
personally delivered to the address of the party to whom it is
directed, or in lieu of such personal service, when deposited
in the United States Mail, by either certified or registered
mail, postage prepaid, addressed to Licensor and to Licensee
at the addresses set forth in this Agreement. Either party,
Licensor or Licensee, may change their address for the purpose
of this paragraph by giving written notice of such change to
the other party in the manner provided in this paragraph.
Additionally, copies of notices shall be sent to counsel for
each party as follows:
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For Licensor:
Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx Co., LPA
000 Xxxxxxxxx-Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxx 00000
For Licensee:
Xxxx Xxxx, Esq.
Weed and Co.
0000 XxxXxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
(b) WAIVER. The waiver of any breach of this Agreement for either
party shall not constitute a continuing waiver or a waiver of
any subsequent breach, either either of the same or another
provision of this Agreement. The delay or omission by the
Licensor to exercise any right or power provided by this
Agreement shall not constitute a waiver of such right or
power, or acquiescence in any default on the part of Licensee.
The acceptance of any payments made by Licensor in a manner or
at a time other than as required by the terms and conditions
of this Agreement, shall not be construed as a waiver or
variation of such terms and conditions. Any default on the
part of Licensee shall be construed as continuous and the
Licensor may exercise every right and power under the
Agreement at any time during the continuance of such default,
or upon the occurrence of any subsequent default.
(c) OHIO LAW AND OHIO FORUM. It is agreed by Licensor and the
Licensee that this Agreement shall be interpreted and governed
in accordance with the laws of the State of Ohio irrespective
of its rules concerning conflicts of laws. Any action brought
arising under the terms of this Agreement shall be brought and
maintained in the Summit County, Ohio Common Pleas Court.
(d) TIME IS OF THE ESSENCE. Time is expressly declared to be of
the essence in this Agreement.
(e) ENTIRE AGREEMENT. Both Licensor and Licensee agree that this
Agreement constitutes the sole and only agreement between them
respecting the Product, the Technologies, and the Trademark,
and correctly sets forth their obligations to each other as of
this date.
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(f) BINDING ON SUCCESSORS AND ASSIGNS. This Agreement shall be
binding on and shall inure to the benefit of the successors
and assigns of the parties hereto, but nothing contained in
this paragraph shall be construed as a consent by Licensor to
any assignment of this Agreement or of any interest therein by
Licensee, except as provided in SECTION 10.0 of this
Agreement.
(g) CONSTRUCTION. This Agreement has been mutually negotiated and
no consideration shall be given to who drafted this Agreement
in construing its provisions.
(h) SEVERABILITY. In the event any part of this Agreement for any
reason is declared invalid, such decision shall not affect the
validity of any of the remaining portions, said remaining
portions to remain in full force and effect as if this
Agreement had been executed with the invalid portions thereof
eliminated.
(i) AMENDMENTS. This Agreement may be modified or amended only by
a writing duly authorized and executed by Licensor and
Licensee. It may not be amended or modified by oral agreements
or understandings between the parties prior to or subsequent
to the execution of this Agreement unless the same shall be
reduced to writing duly authorized and executed by Licensor
and Licensee.
(j) REPRESENTATIONS. Each party expressly acknowledges that there
are no other representations, inducements, promises or
agreements, either oral or in writing, except those as
embodied herein.
(k) HEADNOTES. The head notes are inserted only as a matter of
convenience and as a matter of reference and in no way define,
limit or describe the scope or intent of this Agreement nor in
any manner affect this Agreement.
(l) ATTORNEY FEES. In the event a dispute shall arise between the
parties from this Agreement, the party prevailing in any
litigation resulting from such dispute shall be entitled to
recover as part of the award, its reasonable attorneys' fees
and all related legal expenses, including expert fees and
court costs.
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(m) OFFICER'S AUTHORITY. Any corporate officer signing this
Agreement on behalf of a corporate party represents that he or
she is authorized to bind such party to this Agreement.
INTENDING TO BE LEGALLY BOUND, the parties have executed this Agreement
on the date first written above.
LICENSOR:
ADVANCED GROUT SYSTEMS,
LTD.
/s/ Xxxxx Xxxx
------------------------------------
BY: Xxxxx Xxxx ITS President
/s/ Xxxxx X. Xxxxx
----------------------------------
BY: Xxxxx X. Xxxxx ITS CEO/President
LICENSEE:
TECHNOLOGY VISIONS
GROUP, INC.
------------------------------------
BY:_________________, ITS___________
------------------------------------
BY:_________________, ITS___________
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