INTELLECTUAL PROPERTY AGREEMENT
Dated as of October 1, 2006
Among
LE' ELEGANT BATH, INC. - DBA, AMERICAN BATH FACTORY
And
GATEWAY VENTURE HOLDINGS LTD AND ITS WHOLLY OWNED SUBSIDIARY XXXXXXXX
CORPORATE ADMINISTRATION INC.
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THIS AGREEMENT entered into as of the first day of October 2006 between
Xxxxxxxx Corporate Administration, a corporation organized under the laws of the
State of Nevada and having its principal office at 0000 Xxxx Xxxxxxxx Xxxx,
Xxxxx Xxx Xxxxx, XX 00000 (hereinafter "Company"), and Le' Elegant Bath, with
its principal office located at 00000 Xxxxxxx Xxxxxx, Xxxxxx, XX (hereinafter
"LEB").
WITNESSETH, THAT
WHEREAS, Company has existing Intellectual Property (defined under this
Agreement as any invention, discoveries, patent rights, copyright, trademarks,
trade secrets and/or other confidential know-how) owned solely by Company that
was created under an existing Company project and Company desires continued
research activity on such project for the purpose of further refining such
Intellectual Property, and
WHEREAS, LEB has products and services that would be greatly enhanced utilizing
the technologies and platform developed by the company and desires to utilize
them in malls, retail outlets and other venues for its and other product lines.
WHEREAS, Company and LEB desire to collaborate on specific Company projects
using such technologies and platforms to work with Company's Intellectual
Property under the Xxxxxxxx & LEB Intellectual Property agreement.
NOW, THEREFORE, LEB and Company do hereby mutually agree to participate in the
support program known as "BUBBA" (hereinafter "Program"), such Programs to
continue for a term to be coincident with the projected roll-out schedule and
technology enhancement requirements.
1. PROGRAM PARAMETERS
1.1 Company will present a defined project plan to LEB and LEB will review and
approve each project on a case-by-case basis (hereinafter "Company Project").
1.2 Company and LEB shall mutually agree on the selection of the Manager
(hereinafter "Manager") to work on the Company Project. In the event the
selected Manager leaves the Program or is unable to continue before the end of a
funded year, LEB will recommend a replacement Manager subject to the approval of
Company. Such approval shall not be unreasonably withheld.
1.3 On behalf of LEB, the Manager will perform work and support for the Company
Project defined in the attached work description to this Agreement, Exhibit A,
under the primary supervision of LEB manager for development purposes and a
Company representative for technical aspects of the project.
1.4 Both parties will make available to the selected Manager the resources,
equipment and facilities necessary or useful to the Manager's approved Company
Project.
1.5 It is anticipated that most of the Manager's work will be conducted at LEB'
premises during the calendar year. Company will provide the Manager a suitable
working environment, including appropriate office facilities and support
services. The Manager while working at Company's premises shall be subject to
Company's rules, policies and procedures, except as otherwise provided herein.
2. PROGRAM DIRECTION.
Each party shall designate one person to be primarily responsible for the
overall implementation and operation of the Program. The LEB Representative
shall
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be the Program Director, who has over-all responsibility for the ProgramLEB has
selected Xxxx Xxxxx as its initial Program Director. The Company project must be
approved by the Program Director as being appropriate research intended to
result in the Manager's published thesis. Company's initial Program
Representative is Xxxx Xxxxxx who or the companies technical division.
3. PROGRAM COST.
1.1 FEE FOR INTELECTUAL PROPERY
In support of the Program, LEB agrees to pay to Company a fee of $1,000,000 for
existing technologies (Invoice # 34135) for the rights to said property and use
thereof for 25 years. A 25% deposit to be paid at signing and the balance in the
2006 calendar year.
1.2 MODIFICATIONS AND COSTS
LEB due to the nature of it's products and services will need additional
programming, development, software and hardware to meet their specific
requirements, these projects and fees will be bid on a quote by quote bases and
invoiced appropriately as agreed by LEB and the Company.
4. PROPRIETARY INFORMATION.
If, in the performance of the Company Project, LEB's Program Director or Manager
has access to Company's Proprietary Information, the rights and obligations of
LEB and Company with respect to such information shall be governed by the terms
set forth below:
4.1 PROPRIETARY INFORMATION.
For the purposes of this Agreement, "Proprietary Information" means Company's
information disclosed by Company pursuant to this Agreement to LEB employees,
staff or Manager (for purposes of this Article 5, hereinafter called
"Recipient") which was identified in writing at the time of disclosure as
proprietary. However, Proprietary Information shall not include information
which:
(a) is publicly available prior to the date of the Agreement or becomes publicly
available thereafter through no wrongful act of Recipient;
(b) was known to Recipient prior to the date of disclosure or becomes known to
Recipient thereafter from a third party having an apparent bona fide right to
disclose the information;
(c) is independently developed by LEB without knowledge of Company Proprietary
Information; or
4.2 LIMITATIONS ON USE.
LEB shall use Proprietary Information received from Company solely for the
purposes of this Agreement. When the Proprietary Information is no longer
required for the purpose of this Agreement, LEB shall return it or dispose of it
as directed by Company.
4.3 CARE OF PROPRIETARY INFORMATION.
Company and LEB agree that all Proprietary Information received from Company and
accepted by Recipient in connection with this Agreement shall be kept
confidential by LEB as provided herein unless specific written release is
obtained from Company, which release will not be unreasonably withheld. LEB
shall exert reasonable efforts (no less than the protection given its own
confidential information) to maintain such information in confidence. LEB shall
be deemed to have discharged its obligations hereunder provided
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LEB has exercised the foregoing degree of care and provided further that LEB
shall immediately, upon discovery of any disclosure not authorized hereunder,
notify Company and take reasonable steps to prevent any further disclosure or
unauthorized use.
LEB' obligations of confidentiality and non-use with respect to Proprietary
Information provided under this Agreement will expire one (1) year after the
expiration date of this Agreement.
5. PUBLICATIONS.
5.1 All copyrightable materials, including computer software, first produced or
composed by Manager in performance of a Company Project hereunder shall be owned
solely by Company. Company hereby grants LEB a perpetual, non-exclusive,
transferable, commercial, royalty-free, paid up right and license to use such
materials internally for research and educational purposes.
5.2 The foregoing notwithstanding, the parties hereto expressly recognize that
each Manager's white paper which is anticipated to result from Company Project
carried out under this Agreement will be solely the work product of the Manager
and that the white paper will be publishable, including placing a copy in LEB'
libraries. To prevent an inadvertent disclosure of Company's Proprietary
Information, the Manager shall submit a copy of the proposed white paper to the
designated representative of Company for review prior to submission of the white
paper, which review will be conducted promptly. Company may request LEB to
withhold publication of the white paper for up to thirty (30) days from date of
submission to Company, and may request removal of Company's Proprietary
Information. Company may request LEB to withhold publication of the white paper
for an additional thirty (30) days from submission to Company in order for
Company to file a patent application.
5.3 All other publications by LEB derived from Manager work under a Company
Project during this Agreement shall be submitted to Company at least thirty (30)
days prior to publication to provide Company with an opportunity to identify an
inadvertent release of Company's Proprietary Information or potentially
patentable subject matter.
6. INTELLECTUAL PROPERTY.
6.1 Title to any improvements to or new Intellectual Property (hereinafter
"Company Project Intellectual Property") conceived and reduced to practice in
the performance of Company Project under this Agreement will, whether or not
patentable, be owned solely by Company. The Manager will assign all rights in
such Company Project Intellectual Property to LEB, and LEB will assign all
rights to this Company Project Intellectual Property to Company. Company hereby
grants LEB a perpetual, non-exclusive, royalty-free, commercial, paid-up right
and license to use such Company Project Intellectual Property internally for
educational and research purposes.
6.2 Manager will promptly notify LEB Office of Corporate Technology Transfer
(OCTT) on having identified any potentially valuable Company Project
Intellectual Property made during this Agreement in the performance of this
Agreement and LEB OCTT shall promptly notify Company. Company agrees to pay all
expenses of patent filing and prosecuting such applications.
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6.3 LEB and Manager shall cooperate with Company in signing all documents,
including assignments and patent applications, as Company may reasonably
require. The foregoing notwithstanding, LEB shall retain rights in any such
Company Project Intellectual Property in accordance with Article 6.1 above.
6.4 In consideration of the benefits provided to LEB under this Agreement,
Company agrees to pay the Company a royalty from the income LEB receives from
the external commercialization of Company Project Intellectual Property in the
form of proceeds derived from sales, licenses or sublicenses for the life of the
commercial product, process or service.
7. USE OF NAMES.
Neither party will use the name of the other in any advertising or other form of
publicity without the written permission of the other.
8. NOTICES.
Any notices required to be given or which shall be given under this Agreement
shall be in writing delivered by first class mail addressed to the following
addresses:
Company Technical Contact: Xxxx Xxxxxx
Company Administrative Contact: Xxxx Xxxxxx
LEB Technical Contact: Xxxx Xxxxx
LEB Administrative Contact: Xxx Xxxxxxx
9. TERM AND TERMINATION.
9.1 The initial term of this Agreement shall coincide with Manager's current
schedule up to a period of four (4) years unless sooner terminated as provided
in this Article 10.
9.2 If Company fails to meet any of its obligations under this Agreement and
fails to remedy any such failure within thirty (30) days after receipt of
written notice thereof, LEB shall have the option of terminating this Agreement
upon written notice thereof. In the event LEB fails to meet its obligations
under this Agreement and fails to remedy any such failure within thirty (30)
days after receipt of written notice thereof, Company will have the option of
terminating this Agreement upon written notice thereof, and such right to
terminate shall be Company's sole remedy at law or in equity.
9.3 Upon termination of this Agreement pursuant to the terms of this Article 9,
Company shall reimburse LEB for all of it fee and reasonable expenses and
uncancellable commitments incurred or committed as of the date of termination
and not paid for by Company previously, provided that the cumulative
reimbursement responsibility of the Company may not exceed the total amount
committed for Program funding under this Agreement.
9.4 In the event the selected Manager leaves the Program or is unable to
continue, and a mutually acceptable replacement Manager cannot be found and
agreed upon within a reasonable period thereafter, the parties agree to
terminate this Agreement.
10. WARRANTY
THE COMPANY MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION, ORIGINALITY, OR
ACCURACY OF THE PROJECT OR ANY INTELLECTUAL PROPERTY OR PRODUCT(S), WHETHER
TANGIBLE OR INTANGIBLE, CONCEIVED, DISCOVERED, OR DEVELOPED UNDER THIS
AGREEMENT; OR THE OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PROJECT OR ANY SUCH INTELLECTUAL
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PROPERTY OR PRODUCT. LEB SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
CONSEQUENTIAL, OR OTHER
LEB MAKES NO REPRESENTATION OR WARRANTY REGARDING ACTUAL OR POTENTIAL
INFRINGEMENT OF PATENTS, COPYRIGHTS, OR OTHER INTELLECTUAL PROPERTY OF THIRD
PARTIES, AND COMPANY ACKNOWLEDGES THAT THE AVOIDANCE OF SUCH INFRINGEMENT IN THE
DESIGN, USE, AND SALE OF PRODUCTS AND PROCESSES RELATED TO THE RESEARCH SHALL
REMAIN THE RESPONSIBILITY OF COMPANY.
11. INDEMNIFICATION
To the maximum extent permitted by law, each party agrees to indemnify and hold
harmless the other party and its employees and agents against any claim, loss,
cost, expense, damage or liability of any kind (including reasonable attorney
fees and expenses of litigation) arising out of or connected with the
participation in this Agreement or its use of Intellectual Property.
Without limiting the foregoing, each party agrees to hold harmless, indemnify
and defend the other party from all claims, liabilities, demands, damages,
expenses and losses (including reasonable attorney fees and expense of
litigation) arising out of the use by the indemnifying party, or by any third
party acting on behalf of or under its authorization, of the other's party's
Intellectual Property or out of any use, sale or other disposition by the
indemnifying party, or by any party acting on behalf of or under its
authorization, of products made or developed as a result of information or
materials received from the other party. The provisions of this paragraph shall
survive termination of this Agreement.
12. GOVERNING LAW.
The laws of the State of California shall govern this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
By:
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Name: Xxxxx Xxxxxx
Title: President, Xxxxxxxx Corporate Administration
Date:
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Agreed By:
By:
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Name: Xxxxxxx X. Xxxxxxx
Title: President, Le' Elegant Bath, Inc.
Date:
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