REGI US AGREEMENT
Exhibit 10.1
THIS AGREEMENT made as of the _____day of ___________, 2005.
BETWEEN:
REGI U.S., INC., an Oregon corporation, Having an office at #1103, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(hereinafter referred to as "REGI US")
OF THE FIRST PART
AND:
ANUVU INCORPORATED, a California corporation Having an office at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(hereinafter referred to as "ANUVU")
OF THE SECOND PART
WITNESSETH
WHEREAS:
| A. | ANUVU holds the sole and exclusive rights throughout
the United States to the use of the Technology hereinafter described;
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| B. | ANUVU is a provider of services, systems and equipment
to or for the benefit of the “ANUVU’s Fuel Cell Technology”;
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| C. | REGI US has examined certain preliminary information
of technical data provided to it by ANUVU concerning the Technology and
wishes to obtain an exclusive distributorship for Canada and an option
to purchase the same for Europe. |
NOW THEREFORE in consideration of the premises and the mutual covenants, conditions and agreements hereinafter set out and other good and valuable consideration not recited herein, the parties hereto agree as follows:
Article I — Definitions
The following terms (except as otherwise expressly provided or unless, the context otherwise requires) for all purposes of this Agreement shall have the following respective meanings (it being understood that the terms defined in this Agreement shall include in the singular number the plural, and in the plural number the singular).
1.01 “Affiliate” shall mean any corporation or other entity which either directly or indirectly controls a party to this Agreement, is controlled by such party, or is under common control with such party. As used here, the term “control” means possession of the power to direct or cause the direction of the management and policies of a corporation or other entity, whether through the ownership of voting securities, by contract or otherwise.
1.02 “Agreement” shall mean this Agreement, including all exhibits and schedules annexed to this Agreement.
1.03 “Distributorship Patents” “Patents” means the Patents described in Schedule “A” hereto and all other patents and patent applications of all countries which contain claims covering one or more features
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of the Technology and which are based on Inventions conceived, acquired or reduced to practice by or on behalf of ANUVU and includes any and all renewals, divisions, continuations, continuations-in-part, reissues, extensions, additions, corresponding international patent applications, and any and all future patent applications, and any and all future patent applications on patents issues in respect thereof. 1.04 “Products” “Product” means any product, heretofore or hereafter existing, which utilizes, embodies or is based on the ANUVU Fuel Cell Technology.
1.05 “Territory” shall mean Canada and Europe (Europe to be defined as the member nations of the European Union as of the date of this document).
1.06 “Invention” means discoveries, concepts, and ideas, whether patentable or not, including but not limited to processes, methods, formulae and techniques as well as improvements thereto and extensions thereof.
1.07 “Know-how” includes all technical information, trade secrets, procedures, composition, processes, methods, practices, diagrams, drawings, specifications, blue-prints, plans, materials, documents, manuals and data relating to the design, manufacture, production, distribution and testing of a products or Invention.
1.08 “Party” means each of REGI US and ANUVU, and “Parties” means both REGI US and ANUVU. 1.09 “Prototype” means a fully functional prototype of a fuel cell prototype which utilizes and embodies the Technology.
1.10 “Technology” means the technology which is the subject of the Patents and all other knowledge, Know-how and Inventions owned, controlled, developed or acquired by or on behalf of ANUVU relating thereto, including without limitation the composition, formulation, construction, characteristics, uses and physical manifestations thereof.
Article II — Grant of Distributorship
2.01 REGI Distributorship Patents. ANUVU hereby grants and agrees to ▇▇▇▇▇ ▇▇▇▇ US and its Affiliates, and REGI US and its Affiliates accept, an exclusive Distributorship, under the Distributorship in the Territory with the right to grant subDistributorships, to use and sell the technology and to use, sell and have sold the Products in the Territory. The Distributorship shall include, but not be limited to, all products and devices presently and in the future conceived and developed by ANUVU, as well as all improvements on existing technology, devices and products for an payment in the amount of One Hundred Thousand Dollars ($100,000.00) as defined in Article III, and an additional payment on or before July 31, 2005 of One Hundred Thousand Dollars ($100,000.00), totaling Two Hundred Thousand Dollars ($200,000.00) as payment in full for the Canadian Distributorship.
2.01(a) ANUVU agrees to grant to REGI US an option to an exclusive Distributorship Agreement for Europe as part of this Agreement and REGI US may exercise a set option for the European Distributorship for payments of Three Hundred Thousand Dollars ($300,000.00) of which One Hundred and Fifty Thousand Dollars ($150,000.00) is to be paid within 90 days from the date of this Agreement and the final payment of One Hundred and Fifty Thousand Dollars ($150,000.00) is to be paid on or before November 30, 2005. REGI US agrees to issue 200,000 treasury shares of REGI U.S., INC. upon confirmation of acceptance of the European fuel cell technology patents contemplated to be applied for in section 2.01 (b) .
2.01(b) ANUVU agrees to use its best efforts to submit a patent application for Canada and Europe based on the current fuel cell technology claims set forth in claims of the U.S. Patents Pending held by the ANUVU before the deadline date by the said Patent Office. Patents will be owned by ANUVU and used exclusively in the Territory by the REGI US during the term of this Agreement. ANUVU and REGI US agree to file the Canadian Patent Application on or before November 7, 2005.
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2.01(c) Upon approval of ANUVU’s Secured Lender, this Agreement automatically converts into a license agreement: ANUVU agrees that upon Patent approval the distribution rights will be transferred into a Patent License Agreement upon the written consent of REGI US. The terms and conditions of the License Agreement will be mutually agreed upon in a new Patent License Agreement. In addition, in the event the secured lenders’ note in the amount of $3,500,000.00 is retired this Distribution Agreement automatically converts to a Patent License Agreement.
2.01(d) ANUVU agrees to issue two (2) warrants of Anuvu to REGI US in consideration for each US$1.00 payment to ANUVU, pursuant to paragraph 2.01 and 2.01(a) of this Agreement, in additional consideration for payments under this Agreement. Warrants to be issued within 60 days of the completion of the payments for each Distributorship. Each warrant will entitle REGI US to purchase one (1) treasury share of Anuvu for US$0.01 for a period of one year from the date of payment.
2.01(e) ANUVU agrees to build a working fuel cell model prototype for REGI US for demonstration purposes in a vehicle in Canada. The vehicle to be selected by consent of both ANUVU and REGI US, to be completed within 90 days of payment for the Canadian exclusive license. REGI US to pay all costs associated with prototype including hardware, labor, overhead, export duties and licensing fees. Costs to be agreed upon by both parties before work is to commence.
2.01(f) Upon approval of ANUVU’s Secured Lender and based on REGI US paying the license fees for one or more countries noted in paragraph 2.01 and 2.01(a), ANUVU will grant the sole and exclusive right and license, for each country paid by REGI US, to use the Technology for the purposes of manufacturing for the purposes of manufacturing products in Canada, Europe and the sole and exclusive right to sell, sublicense and distribute such products to the countries that REGI US make the agreed payments to subject to a five percent (5%) net royalty. ANUVU will continue to develop the Technology for REGI US, on behalf of its customers and contacts, under the license agreement for those countries for a period of five (5) years, and renewable for an additional five (5) years based on the election of REGI US.
2.01(g) REGI US will agree to pay for the patent application costs and associated legal fees for Canada and Europe.
2.01(h) ANUVU agrees that REGI US will have a 30 day first refusal to purchase Anuvu shares in event the additional shares to be issued or purchased by Anuvu for any reason at the same price that any investor may agree to pay/sell for the said shares for a period of 6 months.
2.01(i) ANUVU will agree to work on the Rand Cam™ technology projects as required by REGI US, under a contract basis.
2.01 (j) Transfer of Product from ANUVU to REGI US will occur by way of a purchase order being submitted by REGI US to ANUVU that will define prices, delivery dates, freight charges, taxes, tariffs, export issues and payment terms.
2.02 Trademarks. REGI US and its Affiliates shall be free to sell products using the Distributorship Patents, and shall be free to Register trademarks and tradenames with respect to such products under any trademark selected or Registered by REGI US or any of its Affiliates in any country in the Territory, and all trademarks, tradenames, slogans, logos, trade dress and goodwill owned or developed by REGI US or associated with the Distributorship Patents shall be the sole and exclusive property of REGI US or its Affiliates.
2.03 Right of First Refusal on Technology. Upon approval of ANUVU’s Secured Lender, ANUVU hereby grants to REGI US and its Affiliates a right of first refusal to exclusively use, manufacture, develop, sell, market and distribute products based on new patents and applications for patents, improvements, technology, products, devices, know-how, inventions, ideas, methods, processes and concepts, which are owned or developed by ANUVU and are not included in the Distributorship Patents (“New Technology”) in consideration for 100,000 treasury shares of REGI U.S., INC.. At the time when ANUVU develops any such New Technology, ANUVU shall offer to REGI US, in writing, the right to use, manufacture, develop, sell, market, and distribute products based on such New Technology,
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describing in sufficient detail the nature of such New Technology. REGI US and ANUVU shall discuss the offer, negotiating its terms in good faith, and ANUVU shall memorialize an offer to REGI US in writing based on such discussions (“Offer”). From the date the Offer is received, REGI US shall have sixty (60) days within which to accept the Offer which acceptance shall also be in writing. If REGI US declines the Offer, ANUVU shall be free to solicit other interest in the New Technology proposed. However, prior to licensing any such New Technology to a third party, ANUVU shall offer REGI US in writing the same terms and conditions on which the proposed Distributorship to the third party is based and REGI US shall have thirty (30) days in which to meet the terms and conditions of such proposed Distributorship, which shall be done in writing.
Article Ill — Royalties
3.01 Royalties. REGI US shall pay ANUVU a royalty of five percent (5%) of the Adjusted Gross Sales Price of any Products sold by REGI US or its Affiliates for which REGI US receives payment (“Royalties”). “Adjusted Gross Sales Price” shall mean the gross sales price of any Products sold less returns and reasonable actual discounts or rebates.
3.02 Payment of Royalties. REGI US shall pay ANUVU the Royalties on the first day of the first month of each calendar quarter during the Term.
3.03 Adjustment of Royalties. REGI US shall have the right to decrease the Royalties formula if (i) products similar to the Products have come to market in any particular country of the Territory, and (ii) the total market share of all such products, even if manufactured by different companies, which are similar to any of the Products is thirty percent (30%) or more. The adjustment in the Royalties formula shall be negotiated in good faith between REGI US and ANUVU. In the event no agreement is reached within ten (10) days after adjustment is requested by REGI US, then the parties shall submit the issue of Royalties formula adjustment, pursuant to this Paragraph 3.03, for final resolution to the American Arbitration Association, in accordance with its Commercial Rules, whose determination shall be final and binding on REGI US and ANUVU.
3.04 Inspection. ANUVU shall be permitted at reasonable times, and upon at least three (3) days prior written notice to REGI US, to inspect the books and records of REGI US as such relate to sales of the Products for the purpose of determining the accuracy of the Royalties paid to ANUVU pursuant to this Article III.
3.05 Conversion from REGI US Agreement to License Agreement. Upon approval of ANUVU’s Secured Lender, this Agreement automatically converts into a License Agreement.
Article IV — Product Development, Inspections and Audits
4.01 Product Development
| (a) | ANUVU shall have the responsibility for, and shall
use its utmost best efforts is and entire human and economic resources
exclusively for, developing commercially viable products and product prototypes
using the Distributorship Patents (“Product Development”)
improving the Distributorship Patents and developing new technology and
new patents. The advance royalties will be used by ANUVU for Product Development,
including building a working fuel cell model prototype for REGI US. |
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| (b) | REGI US shall, market, use, sell and distribute the
Products within the Territory. Upon conversion to a licensing agreement
REGI US shall have the right to manufacture the Products within the Territory.
ANUVU shall disclose to REGI US all information concerning the Distributorship
Patents and Products, and all information concerning Product Development
as required by REGI US, including but not limited to proprietary engineering,
design, clinical and technical data, methods, processes which is necessary
for evaluation or production of the Products, whether presently within
the knowledge and possession of ANUVU and its employees or which comes
within the knowledge and possession of ANUVU and its employees in the
future and during the Term of this |
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Agreement. ANUVU shall fully cooperate with REGI
US, in the event REGI US elects to test any of the products and product
prototypes developed by ANUVU using the Distributorship Patents, including
but not limited to Institutional Review Board testing and other formal
and informal testing procedures. |
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| (c) | Nothing in this Paragraph 5.01 shall preclude REGI
US from using third parties under a subDistributorship or by contract
to manufacture, market, and distribute the Products. |
4.02 Inspections and Board Member.
| (a) | REGI US shall have
the right to have its representatives inspect and audit the Patent Holder
facilities, premises, and books and records as reasonably required by
REGI US. ANUVU shall cooperate with REGI US fully in all such inspections
and audits. |
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| (b) | ANUVU shall, within 30 days
of the date of this agreement, present to REGI US a voting agreement based
on the approval of the ANUVU’s shareholders which will give REGI
US the right during the Term to designate one member of the ANUVU Board
of Directors to be voted by the shareholder’s by way of the voting
agreement. |
Article V — Representations and Warranties
5.01 Representations and Warranties of ANUVU. ANUVU hereby represents and warrants the following to REGI US as of the date of this Agreement:
| (a) | ANUVU is a corporation duly organized, validly existing
and in good standing under the laws of the State of California. |
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| (b) | ANUVU has full corporate power and authority to enter
into and perform this Agreement. The execution, delivery and performance
of this Agreement by Patent Holder have been duly authorized by all requisite
corporate action. A Board of Directors’ resolution approving the
execution, delivery and performance of this Agreement is annexed to this
Agreement as Exhibit B. |
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| (c) | ANUVU is the sole owner of all right, title and interest
in and to the |
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Distributorship Patents, and ANUVU has legal power,
authority and right to grant the exclusive Distributorship under the Distributorship
Patents. |
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| (d) | To ANUVU’s knowledge, there are no patents owned
by others and no other proprietary rights or property of others which
would be infringed or misused by REGI US or its Affiliates or subREGI
USs as a result of their exercise of the rights in and to the Distributorship
Patents and the products granted by this Agreement. |
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| (e) | There are no actions, suits, or claims pending against
ANUVU or its Affiliates in any court or by or before any governmental
body or agency with respect to the Distributorship Patents or Products,
and to the best of ANUVU’s knowledge, no such actions, suits or claims
have been threatened against ANUVU or its Affiliates other than those
in Exhibit C (ASK Note). |
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| (f) | ANUVU has no knowledge of any infringement of the
Distributorship Patents or knowledge of any claim or allegation, or any
basis thereof, of patent infringement or misuse of any confidential information
with regard to the Distributorship Patents or Products. |
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| (g) | No other person or organization presently has any
effective assignment, option, Distributorship or subDistributorship under
the Distributorship Patents or with respect to |
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the manufacture, use or sale of the Products or other
products using the Distributorship Patents with in the Territories. |
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| (h) | The Distributorship Patents include all of the patents,
applications for patents, improvements, technology, products, foreign
counterparts and extensions thereof, know-how, inventions, ideas, concepts,
methods and processes presently owned, used or developed by ANUVU in the
development of fuel cell technology. |
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| (i) | ANUVU’s facilities, equipment and operations
are in material compliance with all applicable laws and regulations in
the United States. ANUVU holds all material Distributorships, permits
and other governmental authorizations necessary or required by ANUVU to
conduct its operations and business in the manner presently conducted
in the United States. |
5.02 Representations and Warranties of REGI US. REGI US hereby represents and warrants the following to ANUVU as of the date hereof:
| (a) | REGI US is a corporation duly organized and validly
existing under the laws of the State of Oregon. |
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| (b) | REGI US has full corporate power and authority to
enter into and perform this Agreement. The execution, delivery and performance
of this Agreement by REGI US have been duly authorized by all requisite
corporate action. |
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| (c) | REGI US has the financial resources to make all payment
in a timely manner based on the dates with in this document. |
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| (d) | REGI US upon execution of this Agreement will actively
engage in the distribution, marketing or manufacturing of other PEM Fuel
Cell Stack technology. |
5.03 Survival. The foregoing representations and warranties of the parties shall survive termination or expiration of this Agreement.
Article VI — Indemnification
6.01 ANUVU Indemnification. ANUVU shall indemnify and hold REGI US harmless against any and all liabilities, damages, losses, costs, expenses, claims, suits, recoveries and judgments (including attorneys’ fees and expenses) of REGI US, its Affiliates or any third party resulting from or arising out of (i) a breach of ANUVU of any of its obligations, covenants or agreements under this Agreement, (ii) the failure of any of the representations and warranties made by ANUVU under this Agreement to be true and correct as of the date hereof, (iii) any act or omission on the part of ANUVU or any of its employees or Affiliates or agents in the performance of this Agreement, and (iv) patent infringement claims relating to the Distributorship Patents, to the extent provided in Article VIII of this Agreement below.
Article VII — Patent Prosecution and Infringement
7.01 Prosecution. ANUVU shall keep REGI US currently advised of all steps taken or to be taken in the prosecution of all applications for patents and improvements included in the Distributorship Patents, and shall furnish REGI US with copies of all such patent applications promptly after filing. REGI US shall be responsible for all fees with respect to such patent applications and all fees necessary for the maintenance of the Distributorship Patents in the Territory. ANUVU shall consult with REGI US with respect to the prosecution of such patent applications or patents resulting therefrom.
7.02 Infringement Actions.
| (a) | REGI US and ANUVU shall each promptly notify the
other following the discovery of any infringement of the Distributorship
Patents or unauthorized use of the Products which may come to their attention.
ANUVU shall promptly make all efforts to obtain a discontinuance of the
infringement and, if not successful, Patent Holder shall bring suit against
the infringer. |
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| (b) | If ANUVU falls to obtain a discontinuance
of such infringement or unauthorized use and/or fails to bring an infringement
suit within thirty (30) days after discovery of such infringement or unauthorized
use (“Initial Period”), then ANUVU shall give notice
in writing to REGI US within fifteen (15) days following the Initial Period
of such failure, and REGI US may, but is not required to, obtain a discontinuance
of the alleged infringement or unauthorized use or bring an infringement
suit. Any infringement suit brought by REGI US shall be in the name of
ANUVU or REGI US, or jointly in the name of ANUVU and REGI
US, as REGI US shall elect in its sole discretion, or as required by the
law of the forum. |
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| (c) | With respect to any suit for
infringement of the Distributorship Patents or unauthorized use of the
Products, the party that did not institute suit shall render all reasonable
assistance to the party that did institute suit including, but not limited
to, executing all documents as may be reasonably requested by the party
that did institute suit. In the event REGI US institutes suit, REGI US
shall be entitled to reimbursement from ANUVU for all of its reasonable
attorneys’ fees, costs and expenses, including the expenses of any
expert witnesses that may be retained (“Infringement Expenses”),
which Patent Holder shall pay upon demand from REGI US, and REGI US may
deduct such Infringement Expenses from any and all sums, including Royalties,
which REGI US owes ANUVU, on a first priority basis. |
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7.03 Infringement of Third Party Patents. Each party shall notify the other promptly in the event of the receipt of notice of any action, suit or claim alleging infringement by the manufacture, use or sale of the Products, or of any patent or proprietary right held or alleged to be held by a third party. ANUVU shall indemnify and hold REGI US, its Affiliates and subREGI USs, harmless from all damages, losses, costs, expenses, claims, suits, recoveries and judgments (including attorneys’ fees, expenses, costs and expert witness fees) related thereto. This indemnification obligation shall survive the termination of this Agreement.
7.04 Offset. In the event it is necessary, in REGI US’s judgment, for REGI US to make royalty or other payments to a third party in order for REGI US to exercise or continue to exercise any rights granted to REGI US pursuant to the terms of this Agreement in relation to the Distributorship Patents and Products, REGI US shall be entitled to offset any amounts so paid to any third party against amounts due or which may become due to ANUVU under this Agreement if REGI US give notice to ANUVU of such third party claim 60 days before any offset cost adjustments are made and ANUVU has ability to make other arrangements with third party.
Article VIII — Confidentiality
8.01 “Confidential Information” means:
| (a) | all written information
(including information orally disclosed but promptly thereafter reduced
to writing) that is marked as “Confidential” by a Party (in
this section 8.1, the “Discloser”); and |
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| (b) | all information
not generally known to the public, whether disclosed orally or in any
tangible form (including magnetic or electronic), relating to any technology,
products, processes and concepts created, developed or acquired by or
on behalf of the Discloser or its affiliates, including but not limited
to patents and patent applications, Inventions, Know-how, prototypes,
samples, research and manufacturing processes; |
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| but shall not include information that: | ||
| (c) | is, or becomes generally
know to the public, through no wrongful act of the other Party (in this
Section 8.1, the “Recipient”); |
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| (d) | can be shown by documentation to have been rightfully
received by the Recipient from a third party who is free to disclose it
without obligation to the Discloser and who did not acquire such information
by a wrongful act; or |
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| (e) | can be shown by documentation to have been independently
developed by the receiving Party without reference to any other Confidential
Information. |
8.02 During the Term and for a period of five (5) years thereafter, each of the parties and their respective employees, agents, directors, officers, Affiliates and subREGI USs shall hold in confidence all confidential or proprietary information of the other party disclosed hereunder (“Information”) except for and to the extent that such Information (i) is or becomes generally available to the public through no fault of the receiving party; (ii) can be demonstrated in writing to have been known by the receiving party at the time of its disclosure by the other party or is independently developed after the date of disclosure by the receiving party without the application or use of the Information; (iii) becomes known to the other party from a source other than the disclosing party without breach of this Agreement by such party, provided, that such other source has the lawful right to disclose such Information, or (iv) is disclosed pursuant to a final, binding, nonappealable order or requirement of a court, administrative agency or other government body.
8.03 Each Party acknowledges that in the course of carrying out this Agreement, it may be provided with access to and be entrusted with Confidential Information of the other Party, the unauthorized disclosure of any of which to competitors of the other Party or to the general public would be highly detrimental to the other Party, and each Party further acknowledges and agrees that the right to maintain the confidentiality of such information constitutes a proprietary right which the other party is entitled to protect.
8.04 Each Party agrees to keep and use the Confidential Information of the other Party, howsoever obtained, strictly confidential at all times and shall not now or in the future, without the prior written consent of the other Party, disclose the other Party’s Confidential Information to any person or entity other than:
(a) to such of its directors, officers, employees and professional advisors as shall have a need to know such Confidential Information in order to assist such Party in performing its obligations under this Agreement; or
(b) to a person or entity pursuant to a judicial or regulatory process or other requirement of law; provided however that in such case, the legally compelled Party shall be obliged to promptly notify the other Party in writing prior to making any such disclosure, and shall in any event disclose only that portion of the other Party’s Confidential Information which is legally required to be disclosed and shall exercise all reasonable efforts to ensure that confidential treatment will be accorded such Confidential Information.
8.05 Each Party agrees that it will require all of its officers, employees or consultants who have or will be granted access to Confidential Information to execute mutually acceptable assignments of inventions agreements and mutually acceptable Confidentiality and Non-Circumvention Agreements prior to being granted access to Confidential Information.
8.06 Each Party agrees to take all reasonable precautions to avoid disclosure or dissemination of the other Party’s Confidential Information other than as permitted herein, and to limit and control any copies, extracts or reproductions made of any such Confidential Information, and shall otherwise safeguard such Confidential Information to the same extent as it does its own secret information.
Article IX — Arbitration
9.01 Any dispute between the
parties in respect of any matter arising under this Agreement or in relation to
the construction hereof shall be submitted to arbitration and determined by a
single arbitrator appointed pursuant to the Rules of Commercial Arbitration
Association (the “Rules”) which arbitrator shall preside over the arbitration
and conduct it in accordance with the Act, determine all questions of
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procedure not provided for under the Rules or herein, and render a decision which the parties hereby agree shall be final and binding upon the parties; provided however that not withstanding anything else herein contained:
| (a) | it shall be a condition precedent to the right of
either Party to submit any matter to arbitration, that such Party shall
have given the other Party not less than ten (10) days’ prior notice
of its intention to do so together with particulars of the matter in dispute;
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| (b) | the arbitral venue shall be at the offices of the
American Arbitration Association located in Los Angeles; |
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| (c) | the arbitral award shall not grant any punitive,
consequential, remote or incidental damages; and |
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| (d) | the arbitral award shall be final, binding and conclusive.
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| (e) | The substantially prevailing Party will be entitled
to recover its reasonable costs incurred in connection with such action
including attorneys’ fees and disbursements (valued at market rates
for comparable services from private practitioners), costs of discovery
and court costs. |
Article X — Miscellaneous
10.01 Governing Law. This Agreement shall be covered by and construed in accordance with the laws of the State of California other than provisions relating to conflicts of law provided, however, that all questions concerning the construction or effect of any patent applications or patents shall be decided in accordance with the laws of the country or territory in question. Each party hereto submits to the jurisdiction of the courts of the State of California, County of Sacramento, or to the United States District Court in connection with any matter relating to this Agreement.
10.02 Term of Agreement. This Agreement will be in full force and effect until such time as the Patents referred to herein and any extensions or derivatives thereof become eminent domain.
10.03 Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties hereto with respect to the Distributorship Patents, the Products and the other matters contemplated or covered herein. This Agreement supersedes any and all previous agreements, commitment and understandings, whether oral or written, between the parties hereto. This Agreement may not be modified, amended or supplemented except by way of a writing signed by a duly authorized representative of each of the Parties hereto.
10.04 Assignment. This Agreement shall not be assignable by either party without the prior written consent of the other party.
10.05 Notices. Any notice, request, instruction, report or other document to be given hereunder shall be given in writing by hand delivery or by posting by certified or Registered mail, postage prepaid, or by facsimile, receipt confirmed, as follows:
| To ANUVU: | Anuvu Incorporated | ||
| ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | |||
| Attention: | |||
| To REGI US: | REGI U.S., Inc. | ||
| 1103 – ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ | |||
| ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ | |||
| Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President | |||
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or to such other address as a party may specify by notice hereunder.
10.06 Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of, the parties and their respective permitted successors, legal representatives and assigns.
10.07 Severability. If and to the extent that any court of competent jurisdiction holds any provision or part of this Agreement to be invalid or unenforceable, such holding shall in no way affect the Validity of the remainder of this Agreement.
10.08 Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Neither party shall be deemed to be the agent of the other, and neither is authorized to take any action binding upon the other.
10.09 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original and both together shall be deemed to be one and the same Agreement.
10.10 Headings. All headings in this Agreement are inserted for convenience of reference only and shall not affect its meaning or interpretation.
10.11 Waivers. Any waiver of any term or condition of or obligation under this Agreement must be set forth explicitly in writing, signed by the waiving party. A waiver by either party of any of the terms and conditions of or obligations of the other party under this Agreement in any instance shall not be deemed or construed to be a waiver of such term condition or obligation for the future.
10.12 Further Assurances. ANUVU and REGI US each agree on behalf of themselves and their respective Affiliates and subREGI USs to produce or execute such other documents or agreements as may be necessary or desirable for the execution and implementation of this Agreement and the consummation of the transactions contemplated hereby.
10.13 Regulatory Approval. This Agreement shall be subject to any legally required regulatory approvals. 10.14 No Warranty. There is no representations or warranties, express or implied, other than as expressly set forth or referred to herein and, in particular, neither Party makes any warranties to each other or any other person or entity, whether express, implied or statutory, as to the description, quality, merchantability, completeness or fitness for any purpose of any services or information provided hereunder or described herein, or as to any other matter all of which warranties are hereby excluded and specifically disclaimed.
10.15 Time of the Essence. The Parties agree that time is of the essence of this Agreement and further agree that should they fix new times for the performance of any of their obligations hereunder such new times shall also be of the essence.
10.16 Amendments. No amendment, modification, alteration or waiver of the terms of this Agreement shall be binding unless the same shall be in writing dated subsequent to the date of this Agreement and duly executed by the Parties.
10.17 Captions. The captions appearing in this Agreement are inserted for convenience of reference only and shall not effect the interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.
| for REGI US: | for ANUVU: | |
| By: | By: |
| Distributorship Agreement | Page 10 of 11 |
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| Title | Title | |
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| Approval of Lender for Anuvu Incorporated | ||
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| Distributorship Agreement | Page 11 of 11 |