EXHIBIT 10.1
LICENSE AND ROYALTY AGREEMENT
THIS LICENSE AND ROYALTY AGREEMENT is made and entered into this 1st day of
June, 2006 (the "Effective Date") by and among RPM TECHNOLOGIES, INC.
(hereinafter referred to as "RPM"), a corporation incorporated in the State of
Delaware, having its place of business at 00000 X. Xxxxxxx Xxxxxx, Xxxx Xxxxxx,
Xxxxxxxx 00000 and XXXXXX XXXXX, an individual ("XXXXX"). RPM and XXXXX are
individually referred to in this Agreement as a "Party" and collectively as
"Parties."
WHEREAS, RPM is in the business of creating and marketing plastic technology
for pallets and other related products; and desires to license certain plastic
roofing technology as defined below; and
WHEREAS, XXXXX and RPM wish to work together on a continuing basis in licensing
technologies to RPM, which the Parties expect will result in amendments to this
Agreement and/or additional license and royalty agreements, it being the intent
of the Parties that, subject to the terms of such amendments and/or agreements,
if, as and when executed, all future technology development by either of the
Parties in the areas described in the first "WHEREAS" clause above shall be
done through RPM..
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the Parties hereto agree as follows:
SECTION I DEFINITIONS
1.1 "Affiliate" shall mean any corporation, partnership, joint venture, or
other entity (i) in which either Party own or controls, or is owned or
controlled by or in common ownership or control with either Party to the extent
of holding directly or indirectly, stock or interest representing more than
fifty percent (50%) of the aggregate stock or other interest entitled to vote
on general decisions reserved to stockholders, partners, or other owners of
such entity; or (ii) if a partnership, as to which a Party (and/or any of its
Affiliates) is a general partner.
1.2 "Confidential Information" shall mean all information not known or
generally available without restrictions on use, including, without limitation,
employees' names and qualifications, know-how, trade secrets, intellectual
property, operational methods, marketing plans or strategies, product
development techniques or plans, processes, designs and design projects,
inventions and research projects and other business affairs, including the
terms and conditions of this Agreement and the negotiations between the Parties
with respect to this Agreement. All Licensed Technology shall constitute
Confidential Information of XXXXX. Notwithstanding the foregoing, information
subject to any of the following exceptions shall not be considered Confidential
Information:
(a) information which is or becomes generally available other than as a result
of the breach of this Agreement by either Party;
(b) information, the release of which is expressly authorized in writing by the
Party having the legal right to disclose such information; or
(c) information, which is already lawfully known to or independently developed
by either Party or their Affiliates without the use of any Confidential
Information disclosed hereunder; or
(d) information, which is lawfully obtained from any Third Party.
1.3 "Know-How" shall mean all knowledge and tangible information whether
patentable or not and physical objects related to the technology embodied in
the Licensed Patents, including but not limited to formulations, materials,
data, schematics. designs, configurations, computer programs, drawings and
sketches, testing and test results, regulatory information, whether or not
capable of precise, separate description prior to its publication, owned by
XXXXX which XXXXX has the right to disclose and license to RPM.
1.4 "Licensed Patents" shall mean those patents or patent applications set
forth in Exhibit A, regardless as to whether any patent applications may
subsequently be withdrawn, opposed or otherwise not prosecuted through to the
grant of a patent, and any additional patent applications which may
subsequently he added to Exhibit A by a written modification of this Agreement,
signed by both Parties.
1.5 "Licensed Product and Licensed Process" shall mean, in the case of a
Licensed Product, an item sold or intended for sale consisting of or
incorporating the Licensed Technology and, in the case of a Licensed Process, a
process which uses or incorporates the Licensed Technology.
1.6 "Licensed Technology" shall mean Licensed Patents and Know-How relating to
the Licensed Patents, collectively.
1.7 "Third Party shall mean any party, except Affiliates of either Party, who
is not a party to this Agreement.
1.8 "Third Party Provider" shall mean any Third Party providing intellectual
property which, by design of the product, RPM elects to incorporate into the
Licensed Technology or into a Licensed Product or Licensed Process.
SECTION 2
LICENSE GRANT
2.1 In accordance with the terms and conditions of this agreement, XXXXX hereby
grants to RPM, as of the Effective Date and until terminated according to the
terms hereof, a non-transferable, irrevocable (except to the extent provided in
Section 8.2), right and license to use the Licensed Technology (a) to develop,
manufacture, use, sell, and otherwise distribute the Licensed Products and to
perform Licensed Processes and (b) to sublicense without the right to further
sublicense, the use of the Licensed Technology to third parties to manufacture
Licensed Products. All sublicenses shall be executed pursuant to an agreement
approved by both Parties. RPM's rights and licenses hereunder shall extend to
the benefit of its Affiliates, provided that each Affiliate assumes and agrees
in writing to abide by the obligations, including the obligation to pay
royalties under Article 3 herein, and to permit XXXXX to audit its records as
provided herein in accordance with Section 8.1 and restrictions established
hereunder. RPM shall be responsible for any breach of the terms and conditions
of this Agreement by its Affiliates.
2.2 The license grant provided in Section 2.1 shall be exclusive except for a
previously approved License Agreement to Xxxxxx Manufacturing owned and
operated by Xxxx Xxxxx and Xxxxxxx Xxxxxx, if said License Agreement (attached
hereto as Exhibit B) is executed within 30 days of the execution of this
License Agreement with RPM. Otherwise, no such License shall be granted to
Xxxxxx Manufacturing without the expressed and written consent of RPM.
2.3 In conjunction with the license of the Licensed Technology provided in this
Agreement, XXXXX covenants and agrees to fully disclose all Licensed Technology
to RPM and all Know-How and background information in XXXXX'x possession that
is reasonably necessary for RPM to utilize the Licensed Technology.
2.4 XXXXX agrees to make a good faith and reasonable effort to perfect legal
ownership and clear title to his roofing technology and the technology being
licensed to RPM under this License Agreement. This shall include filing a legal
action with 30 days of the execution of this Agreement if G. E. Composites, L.
L. C., an Indiana limited liability company (hereinafter "GE Composites") which
is a wholly owned subsidiary of Environmental Recycled Products, L. L. C., an
Indiana limited liability company (hereinafter "Environmental") and all its
owners and/or members, individually, do not agree in writing to return the
technology to XXXXX. Additionally XXXXX shall continue to improve and develop
alternative technologies and blends for the manufacturer of plastic roofing
material as part of his on going obligations under this License Agreement. All
new technologies and blends shall be included and covered by this License
Agreement.
2.5 RPM agrees as part of this License Agreement to purchase all production
line equipment necessary for the manufacture of the roofing tiles through Honey
Creek Machinery and Turn Key Plastic Systems as long as the price per line is
within the fair market price.
SECTION 3
IMPROVEMENTS AND TECHNICAL SUPPORT
3.1 During the term of this Agreement, XXXXX shall promptly disclose in writing
to RPM any updates, improvements, enhancements, amendments or modifications to
the Licensed Technology and such updates, improvements, enhancements,
amendments and modifications shall be deemed to be included in the definition
of Licensed Technology and included in the scope of the license grant provided
herein.
3.2 If. during the term of this Agreement, XXXXX develops technology related to
any plastic roofing technology that is not covered by Section 3.1 above and not
included in the scope of the Licensed Technology, XXXXX agrees to (a) offer RPM
a 30 day option to negotiate a license to such technology on mutually agreeable
terms and conditions; and (b) provide RPM an option to negotiate a license
prior to XXXXX'x entering into any licensing agreement for any such technology
or intellectual property owned or controlled by XXXXX.
3.3 Upon the request of RPM, XXXXX shall provide RPM with technical assistance
and support associated with RPM's application, use, development, manufacture,
sale and distribution of the Licensed Technology, including explanations and
demonstrations of Know-How ("Technical Support"). RPM shall reimburse XXXXX for
reasonable out-of-pocket expenses, approved by RPM in writing. In addition to
Technical Support, upon the written request of RPM, XXXXX shall provide RPM
personnel with training in the use and application of the Licensed Technology,
including all related Know-How. Training provided pursuant to this clause may
be performed at either RPM's or XXXXX'x business premises, as agreed by the
Parties, or at a different location upon the agreement of the Parties. RPM
shall be responsible for travel, accommodation and out-of-pocket expenses
associated with its personnel and the personnel of XXXXX in the performance of
the above activities. All RPM personnel participating in the training provided
for herein shall execute a confidentiality agreement consistent with the
confidentiality provisions of this Agreement.
SECTION 4 ROYALTIES
4.1 For the rights, privileges and licenses granted hereunder, RPM shall pay to
XXXXX a licensing fee of Five Hundred Thousand Dollars (US $500,000.00) (the
"Licensing Fee") to be paid within 30 days of the execution of this Agreement.
4.2 RPM shall issue XXXXX 500,000 shares of restricted common stock as further
consideration for the issuance of this License to RPM.
4.3 In addition to the Licensing Fee set forth in Section 4.1 above, RPM shall
pay to XXXXX royalties for the sale, use, lease or other disposition of
Licensed Products and Licensed Processes, including the use of any Licensed
Product or Licensed Process by RPM for their own purposes. RPM shall pay to
XXXXX the following royalties per Licensed Product shipped or Licensed Process
performed:
(a) Royalties in the amount of Ten Dollars ($10.00) per square of roofing tile
or pro rata per shingle for sales of less than a square of roofing tile and
$0.10 per piece of accessory parts from sales of Licensed Products by or
through RPM. Royalties are due Xxxxx monthly and shall be paid no later than
thirty (30) days after the end of each month.
SECTION 5
OWNERSHIP OF INTELLECTUAL PROPERTY
5.1 Ownership of Independently Developed Intellectual Property. The Licensed
Technology defined in Exhibit A shall remain the exclusive property of XXXXX.
5.2 Ownership of Jointly Developed Intellectual Property. The Parties shall
have joint ownership rights in and to all intellectual property developed as a
result of the engineering work performed jointly by the Parties pursuant to
this Agreement or any updates, improvements, enhancements, amendments or
modifications made by RPM to the Licensed Technology (the "Jointly Owned
Intellectual Property"). The Parties shall have the right to jointly obtain and
hold in their joint names, copyrights, registrations, patents, or such other
protection as may be appropriate to the subject matter and any extensions and
renewals thereof, relative to the Jointly Owned Intellectual Property.
Notwithstanding the foregoing, the Licensed Technology shall remain the
exclusive property of XXXXX.
SECTION 6 CONFIDENTIALITY
6.1 Each Party acknowledges that the Confidential Information constitutes and
shall constitute valuable assets and trade secrets. Accordingly, when a Party
(the "Receiving Party") receives confidential information from the other Party
(the "Owning Party") the Receiving Party shall, both during the term of this
Agreement and for three (3) years following the termination thereof, (i) keep
secret and retain in strict confidence any Confidential Information received
from the Owning Party, (ii) not disclose to any Third Party any Confidential
Information received from the Owning Party for any reason whatsoever, (iii) not
disclose any Confidential Information received from the Owning Party to the
Receiving Party's (and/or any of its Affiliates') employees, except on a need-
o-know basis and only after instructing each such employee not to disclose or
otherwise make available any Confidential Information to any Third Party unless
having received a signed Confidentiality Statement acknowledging the
obligations set forth in this Section from each such Third Party, and provided
each such employee is bound by confidentiality obligations under the employment
policies, Code of Conduct, and employee relationship requirements with the
employer and (iv) not make use of any Confidential Information received from
the Owning Party for its own purposes or for the benefit of any Third Party
except as authorized by this Agreement.
6.2 In the event of any legal action or proceeding or asserted requirement
under applicable law or government regulations requesting or demanding the
Receiving Party disclose any Confidential Information, the Receiving Party
shall immediately notify the Owning Party in writing of such request or demand
so that the Owning Party may seek an appropriate protective order or take other
protective measures. The Receiving Party shall, upon the request of the Owing
Party, cooperate reasonably with the Owning Party in contesting such request or
demand at the expense of the Owning Party including, without limitation,
consulting with the Owning Party as to the advisability of taking legally
available steps to resist or narrow such request or demand. If in the absence
of a protective order or a waiver hereunder from the Owning Party, the
Receiving Party, in the reasonable written opinion of the Receiving Party's
legal counsel, is legally compelled to disclose any Confidential Information,
the Receiving Party may disclose such Confidential Information without
liability hereunder; provided, however, the Receiving Party (a) shall furnish
only that portion of the Confidential Information which is legally required,
and (b) shall use commercially reasonable efforts to obtain an order or other
reliable assurance that confidential treatment will be accorded to such
portions of the Confidential Information to be disclosed as the Owning Party
designates.
6.3 In the event the Receiving Party becomes aware that any person or entity
(including, but not limited to, any Affiliate or employee of the Receiving
Party) is taking, threatens to take or has taken any action which would violate
any of the foregoing provisions of this Agreement, the Receiving Party shall
promptly and fully advise the Owning Party (with written confirmation as soon
as practicable thereafter) of all facts known to the Receiving Party concerning
such action or threatened action. The Receiving
Party shall not in any way aid, abet or encourage any such action or threatened
action, and the Receiving Party agrees to use commercially reasonable non-
monetary efforts to prevent such action or threatened action, including, but
not limited to, assigning any cause of action it may have relating to the
violation of the foregoing provisions to the Owning Party, and the Receiving
Party agrees to do all reasonable things and cooperate in all reasonable ways
as may be requested by the Owning Party to protect the trade secrets and
proprietary rights of the Owning Party in and to the Confidential Information.
6.4 The terms and conditions of this Agreement will not be disclosed by either
Party, except with the prior written consent of the other Party, or as may be
required by law or necessary to establish its rights hereunder. Notwithstanding
the foregoing, (i) each Party shall have the right to disclose the terms and
conditions of this Agreement, if necessary, to any legal counsel of such Party
as may be required to establish its rights hereunder, and (ii) subsequent to
the execution of this Agreement, the Parties may jointly or individually issue
press releases or otherwise publicly disclose the Parties' relationship,
provided (a) such Party has obtained the prior written approval of the content
of such disclosure from the other Party and (b) that such disclosure does not
include information which would be prohibited from disclosure by either Party
pursuant to this Agreement. The approval of such press release or other
disclosure of the Parties' relationship shall be given by a Party within five
(5) business days following the request by the other Party, or in the event the
approval is not given, the disapproving Party shall provide commercially
reasonable objections.
SECTION 7
REPRESENTATIONS AND WARRANTIES AND OTHER COVENANTS
7.1 Except as specifically set forth in this agreement, XXXXX, makes no
representations or warranties, expressed or implied as to Merchantability,
fitness for a particular purpose or otherwise with respect to the licensed
technology or know-how provided pursuant to this agreement.
7.2. Under no circumstances shall either party be liable for any indirect,
consequential, incidental, exemplary or punitive damages, loss of earnings,
profit or goodwill suffered by any person or entity, including the other party,
caused directly or indirectly as a result of this agreement, by any License or
sublicense granted hereunder, or by each party's performance or Non-performance
of this agreement, even if such party is notified by the other party or any
third party of the possibility of such damages.
7.3 XXXXX represents and warrants to RPM as follows:
(a) To the best of his knowledge, XXXXX owns or possesses title and ownership
to all Licensed Technology without any conflict with, or infringement of, the
rights of others EXCEPT that RPM is aware and has been informed of a potential
conflict with G. E. Composites which is a wholly owned subsidiary of
Environmental or its or their members regarding the default in the monthly
royalty payments asserted by XXXXX to be due from GE Composites and XXXXX'X
position and stance that the "technology and technical" information" covered by
said Royalty Agreement has reverted to XXXXX by such default, PROVIDED HOWEVER,
NOTWITHSTANDING THIS KNOWLEDGE, RPM shall not be liable for any indirect,
consequential, incidental, exemplary or punitive damages, loss of earnings,
profit or goodwill suffered by any person or entity, including the other party,
caused directly or indirectly as a result of this Agreement, by any License or
sublicense granted hereunder, or by each party's performance or non-performance
of this Agreement, even if such party is notified by the other party or any
third party of the possibility of such damages as specified in 7.2 above.
Without limiting the generality of the foregoing, there are currently no
assignments of, or security interests in force with respect to, the Licensed
Technology to the best knowledge, belief and information of XXXXX, AND PROVIDED
FUTHER HOWEVER, XXXXX shall not be liable to RPM, it successors and assigns for
any indirect, consequential, incidental, exemplary or punitive damages, loss of
earnings, profit or goodwill suffered by RPM if the XXXXX'X ownership of the
licensed technology and/or technical information is voided by a court of law on
the application of GE Composites, its successors or assigns.
(b) There are no outstanding options, licenses, or agreements by XXXXX of any
kind relating to the Licensed Technology, nor is XXXXX bound by or a party to
any options, licenses or agreements of any kind with respect to the patents,
trademarks, service marks, trade names, copyrights, trade secrets, licenses,
information, proprietary rights and processes of any other person or entity
other than as described in 7.3 (a) above.
(c) XXXXX has not received any communications alleging that the Licensed
Technology or XXXXX has violated or, by conducting its business, would violate
any of the patents, trademarks, service marks, trade names, copyrights, trade
secrets or other proprietary rights or processes of any other person or entity
other than as described in 7.3 (a) above.
(d) XXXXX is not aware that any of his employees is obligated under any
contract (including license, covenants or commitments of any nature) or other
agreement, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's
best efforts to promote the interest of XXXXX or that would conflict with
XXXXX'X business other than as described in 7.3 (a) above.
(e) Neither the execution or delivery of this Agreement, nor the carrying on of
XXXXX'X business by the employees of XXXXX nor the conduct of XXXXX'X business
as proposed, will, to XXXXX'X knowledge, conflict with or result in a breach of
the terms, conditions, or provisions of, or constitute a default under, any
contract, covenant or instrument under which any such employee is now obligated
to the best knowledge, belief and information of XXXXX.
(f) XXXXX does not believe that, in connection with RPM's use of the Licensed
Technology pursuant to this Agreement, it is or will be necessary to use any
inventions of any of his employees (or persons he currently intends to hire)
made prior to their employment by XXXXX.
7.4 During the term of this Agreement, XXXXX shall not assign or grant any
security interest, ownership or other rights in any of the Licensed Technology
without the prior consent of RPM, such consent not to be withheld unreasonably.
7.5 XXXXX shall indemnify and hold RPM harmless from any and all claims, costs,
damages and expenses arising out of a breach of any of XXXXX'x representations
contained in Section 7.3 or based on any allegation that the Licensed
Technology infringes the rights of a Third Party. XXXXX'x indemnity obligations
contained in this Section 7.4 shall be limited to the dollar amount of
royalties that have been received, or are to be received, by XXXXX from RPM
pursuant to this Agreement. For the avoidance of doubt, any future royalties
may be set off and withheld by RPM until all claims, costs, damages and
expenses have been compensated.
SECTION 8
TERM AND TERMINATION
8.1 This Agreement shall become effective upon execution by both Parties hereto
and remain in full force and effect until terminated pursuant to Section 9.2.
8.2 This Agreement shall terminate thirty (30) days after receipt of written
notice upon the occurrence of any of the following:
(a) RPM fails to pay XXXXX royalties as provided in Section 4.2 within thirty
(30) days after receipt of written notice from XXXXX; provided. however, that
if any amount is contested, such amount, if not paid, shall be placed into a
court registry or similar unrelated third party escrow pending resolution of
the dispute, and provided further, that no such termination shall be effective
until a final resolution of such matter in favor of XXXXX; or
(b) Upon any material breach or default of this Agreement by any Party (the
"Breaching Party"), the non-breaching Party shall have the right to terminate
this Agreement and the rights, privileges and license granted hereunder unless
the Breaching Party cures any such breach or default within thirty (30) days
after receipt of written notice from the non-breaching Party; provided,
however, that if such breach or default is disputed by the Breaching Party, no
purported termination of this Agreement shall be valid until such matter has
been finally resolved; and provided, further. if the Breaching Party shall be
in breach or default of the same provision twice within any six (6) month
period, the non-breaching Party shall have the right to terminate this
Agreement immediately upon notice to the Breaching Party of such second
occurrence without providing the Breaching Party the thirty 30) days notice and
cure period.
8.3 Upon termination of this Agreement for any reason, nothing herein shall be
construed to release either Party from any obligation arising prior to the
effective date of such termination. RPM may, however, after the effective date
of such termination, sell all Licensed Products then in its possession, and
complete Licensed Products in the process of manufacture at the time of such
termination and sell the same, provided that RPM shall pay to XXXXX the
royalties thereon as required by Section 4 of this Agreement and shall submit
the reports required by Section 10 hereof.
8.6 Upon termination of this Agreement for any reason, each Party shall, at the
option of the other Party, return or destroy all Confidential Information,
including but not limited to Licensed Technology, in its possession owned by
the other Party, and RPM shall cease to use any part of the Licensed Technology
for any purpose whatsoever, except as specifically allowed under Section 8.5
above.
8.8 Sections 4, 5, 6, 7, 8, 9 and 10 shall survive termination of this
Agreement.
8.9 Upon termination of this Agreement for any reason the Licensed Technology
shall revert back to XXXXX, or in the case of a material breach of this
Agreement if the breach is not cured with the time periods allowed or if not
specified herein, then within a reasonable time not exceeding thirty (30) days.
SECTION 9
REPORTS AND RECORDS
9.1 RPM shall keep complete and accurate records of the manufacture, sale and
distribution of Licensed Products and Licensed Processes including use and
manufacture by any sub RPM's, (collectively, "Sales and Use Records"). Sales
and Use Records shall be kept at RPM' principal place of business. Upon prior
written notice to RPM, XXXXX shall have the right, one (1) time each year
during normal business hours, without unreasonable interference with RPM'
business operations, and at XXXXX'x expense, to have a reputable and
internationally recognized independent certified auditor, subject to an
appropriate confidentiality agreement, review and audit records in relation to
the royalties and compensation under this Agreement for the preceding (3) three
years. Any adjustments due to overpayment or underpayment of royalties shall be
made at the next date when royalty payments to XXXXX are due. If the
underpayment of royalties due to XXXXX is greater than ten percent (10%). RPNI
agrees to reimburse XXXXX for its review and audit expenses, unless such
underpayment of royalties occurs due to a mistake made by RPM in good faith or
situations beyond Rona's reasonable control.
SECTION 10
GENERAL PROVISIONS
10.1. Notices. All notices, demands or other communications given under this
Agreement shall be in writing and shall be mailed by first-class, registered or
certified mail, return receipt requested, postage prepaid, or transmitted by
hand delivery (including delivery by courier), telegram. telex, or facsimile
transmission, addressed as follows:
a) If to XXXXX:
0000 X. Xxx Xxxxxx,
Xxxx Xxxxxxx, Xxxx 00000
(000) 000-0000
b) If to RPM:
00000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxxx 00000
(000) 000-0000
or to such other address which each Party may designate by notice in writing.
Each such notice, demand or other communication which shall be mailed,
delivered or transmitted in the manner described above shall be deemed given
for all purposes at such time as it is delivered to the addressee (with the
return receipt, the delivery receipt, the affidavit of messenger or (with
respect to a telex) the answer back being deemed conclusive (but not exclusive)
evidence of such delivery) or at such time as delivery is refused by the
addressee upon presentation.
10.2. Governing Law. The construction and interpretation of this Agreement and
the rights of the Parties shall be governed by the laws of the State of
Illinois, USA, without regard to its conflicts of laws provisions. The state
and federal courts located in Illinois shall have exclusive jurisdiction over
any dispute arising from or in connection with this Agreement not otherwise
submitted to arbitration. Each Party hereby consents to the personal
jurisdiction of the state and federal courts in Illinois in any such dispute
arising from or relating to this Agreement. Each Party further agrees that
services of process may be made, in addition to any other method permitted by
law, by certified mail, return receipt requested, sent to the applicable
address set forth herein. Any award or injunctive relief granted in any dispute
may be enforced by either Party in either the courts of the State of Illinois
or in the United States District Courts located in Northern "District of
Illinois. The Parties hereby expressly waive their rights to trial by jury.
10.3 Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto and their respective successors and assigns as
permitted hereunder. No person or entity other than the Parties hereto is or
shall be entitled to bring any action to enforce any provision of this
Agreement against any of the Parties hereto, and the covenants and agreements
set forth in this Agreement shall be solely for the benefit of, and shall be
enforceable only by the Parties hereto or their respective successors and
assigns as permitted hereunder. Except for assignment to an Affiliate, neither
this Agreement nor any rights hereunder shall be assignable by any Party
without the prior written consent of the other Party hereto. Except as provided
in Section 11.12, in the event of any assignment to an Affiliate, the
transferring Party shall remain responsible for the performance off such
affiliate under this Agreement.
10.4 Entire Agreement: Amendment. This Agreement constitutes the entire
agreement between the Parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and
oral, between the Parties with respect to such matters. No amendment to this
Agreement shall be made except by an instrument in writing signed on behalf
each Party.
10.5 Severability. If any court or arbiter of applicable jurisdiction
determines that any of the agreements, covenants and undertakings set forth
herein, or any part thereof, is invalid or unenforceable, the provision shall,
to the extent possible, be restated to reflect the original intention of the
Parties, and the remainder of this Agreement shall be given full effect,
without regard to the invalid or restated portions.
10.6 Waiver. The failure of either Party to assert a right hereunder or to
insist upon compliance with any term or condition of this Agreement shall not
constitute a waiver of that right or excuse a similar subsequent failure to
perform any such term or condition by the other Party.
10.7 Taxes. Each Party shall be liable for any and all taxes, duties or levies,
however designated or computed assessed against such Party in conjunction with
any payments made pursuant to this Agreement.
10.8 Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed to be an original, but all of which together
shall constitute one and the same agreement.
10.9 Compliance with Laws. In performing under this Agreement, both Parties
agree to comply with all applicable laws, rules, and regulations of any
governmental entity.
10.10 Force Majeure. Neither party shall be liable to the other party for and
loss or damage due to delays or failure to perform resulting from an went of
"force majeure," including without limitation, acts of God; accident; war;
fire; lockout; strike or labor dispute; riot or civil commotion; act of the
public enemy: enactment, rule, order or act of civil or military authority;
acts or omissions of the other Party; judicial action; inability to secure
adequate materials, labor, or facilities; defaults of subcontractors or
suppliers as a result of "force majeure"; the inability of carriers to make
scheduled deliveries; or any other event beyond the reasonable control of
either Part%.
IN WITNESS WHEREOF, the Parties have caused their duly authorized
representatives to execute this Agreement as of the date first set forth above.
RPM TECHNOLOGIES, INC.
By: /S/ Xxxxx Xxxx
-------------------------
Xxxxx Xxxx, CEO
XXXXXX XXXXX
By: /S/ Xxxxxx Xxxxx
----------------------
Xxxxxx Xxxxx, Individually
EXHIBIT A
LICENSED TECHNOLOGY
Licensed Patents shall be defined as:
"Technology" is defined as the intellectual property rights, proprietary
formulas, patents and patents pending and developed and any patents, granted,
developed, owned or in possession of Xxxxxx Xxxxx together with any and all
current and future rubber, plastic or combination of rubber, plastic and filler
products for simulated slate roofing, simulated cedar roofing, simulated tile
roofing and roofing products. compression molded pallets, mats and other molded
products through use of any one or a combination of the
following, to wit:
GE-1020, = Ethyl Vinyl Acetate (EVA) or Metallocene or Ultra
Low Density Polyethylene (ULDPE) and Low Density Polyethylene (LDPE);
GE-1030 = High Density Polyethylene (HDPE)
GE-1060 = Low Density Polyethylene and Linear Low Density Polyethylene (LLDPE}
as co-polymers
GE-1050 = Low Density Xxxxxxxxxxxx (XXXX)
XX-0000 =Linear Low Density Polyethylene (LLDPE)
any and all of these materials being either virgin, wide specification,
reproduction, post industrial or post consumer material or a combination of any
of the above.
