XXXXXXXX RESONANCE ENTERPRISES, INC. (JRSE)
License Agreement
AGREEMENT ("Agreement"), made and entered into as of the 4th day of
April, 2003, in duplicate originals by and between XXXXXXXX RESONANCE
ENTERPRISES, INC., a Nevada corporation authorized to do business in the State
of Florida, having an office and place of business at 0000 Xxx Xxxx, Xxxxx 000,
Xxxxxxx Xxxxx, Xxxxxxx 00000 ("Licensor"); and X.X.X., Xxx., Xxxxx 0 Xxxxxx
Xxxxxxxx, Xxxx & Prince Xxxxxxx Streets, Charlestown, Federation of St. Kitts
Nevis ("Licensee").
WHEREAS, Licensor has expended considerable resources to research,
develop, test, patent and receive regulatory clearances and approvals in
medicine for its proprietary magnetic resonance technology, Xxxxxxxx Resonance,
by means of technologies and device(s) known as "Xxxxxxxx Resonators", "Xxxxxxxx
Resonance Technology" and or "Magnetic Resonance Therapy" (the "Xxxxxxxx
Resonance Technologies"), holds US an International patents covering
"bioelectromagnetics and magnetic resonance therapy and the use of very weak
electromagnetic fields as applied to multiple industries, included but not
limited to: Healthcare, Medicine, Veterinary Medicine, Pharmaceutical, Food and
Beverage, Construction, Agriculture and the Environment ; AND,
WHEREAS, Licensee possesses the experience, contacts, expertise, market
know-how, distribution and financial contacts to develop a sustainable business,
in the Portable Battery Powered Resonators for Human Usage Arena and to
distribute and/or manufacture these Portable Battery Powered Resonators for
Human Usage utilizing Xxxxxxxx Resonance Technologies (the "Licensed
Technologies" as defined hereafter in this Agreement); AND
WHEREAS, the Licensee desires to market, sell, distribute and/or
manufacture the Licensed Technologies throughout the world, excepting the
United States of America, (the "Territory"); AND,
WHEREAS, Licensee agrees to comply with all provisions of the United
States Foreign Corrupt Practices Act.
NOW, THEREFORE, in consideration of the mutual covenants set forth, the
Licensor and Licensee do hereby respectfully grant, agree and covenant this
agreement as follows:
1. DEFINITIONS.
1.1 Territory: The geographic area, or countries or countries, as
specified in the preamble and herewith annexed under Exhibit A.
1.2 Licensed Technologies: The following Xxxxxxxx Resonance Technologies:
All current and future models of Portable Battery Powered Resonators for Human
Usage and such other products and services as the parties may agree upon in
writing.
1.3 License Year: A twelve (12) month period beginning on January 1 and
ending on December 31, except that the first License Year begins on the date
hereof and ends on December 31, 2003.
2 GRANT OF LICENSE.
2.1 Grant of License and Product Designations: Subject to the terms of this
Agreement, Licensor hereby grants to Licensee, during the term of this
Agreement, and upon the terms and conditions hereinafter set forth, a
non-assignable right and license to market, sell, manufacture, and distribute
the Licensed Technologies within the Territory. The Licensee shall have the
right, upon receipt of written approval and due diligence by the Licensor, to
sublicense any of the rights and licenses granted herein to third parties with
the written consent of Licensor, which consent shall not unreasonably be
withheld.
2.2 Licensee shall have no rights with respect to the Licensed Technologies
outside the defined Territory unless approved in writing by the Licensor in the
form of an "addendum to License Agreement." Any and all other rights
specifically not granted to Licensee herein are reserved exclusively to the
Licensor. No intellectual property rights are hereby granted with this
licensing agreement. All intellectual property rights remain with the Licensor.
2.3 Licensee's Efforts: Licensee agrees to use its best professioal efforts
to distribute, market, promote, sell and /or manufacture the Licensed
Technologies throughout the Territory. Licensee's efforts will be subject to
review and/or license modifications by the Licensor should the Licensee not meet
standards, expectations or performance/production goals as set and agreed upon
between the Licensor and Licensee.
3. TERM.
The term of this Agreement shall commence on the date of execution hereof
and shall continue for a period of Three (3) License Years, and shall
automatically renew for Three (3) succeeding License Years unless earlier
terminated by either party upon not less than one hundred and twenty (120) days
prior written notice to the other of intent to terminate. Additional extensions
of three (3) year periods are negotiable. No termination notice or termination
of this Agreement shall relieve Licensee from paying any and all obligations
owed by it to Licensor up to the date of termination. Upon termination of this
Agreement, Licensee shall cease to sell, market, distribute, and/or manufacture
any and all of the Licensed Technologies unless modified or amended in writing
by the Licensor. Effective the date of termination the Licensee shall have no
further rights under this Agreement and to the Licensed Technologies.
4. QUALITY CONTROL, STANDARDS, AND OWNERSHIP.
4.1 Quality Control: Licensee shall acquire the Licensed Technologies only
from the Licensor. However, in the event Licensor grants Licensee, in writing,
the right to manufacture the Licensed Technologies or sub-license the
manufacturing rights, the Licensee shall meet all of the product design and
specifications imposed by the Licensor. No changes or modifications in
manufacturing shall be made to the Licensed Technologies without the express
written consent to the Licensor and its engineering advisory consultants.
Licensee's failure to adhere to the foregoing requirements shall be grounds for
the immediate termination of this Agreement by the Licensor.
4.2 Use of Licensed Technologies: Licensee agrees not to market, sell,
distribute or otherwise use, manufacture, modify the use and applications of the
Licensed Technologies in any manner whatsoever without first obtaining all the
required permits, licenses, approvals and consent as may be required by the laws
of any jurisdiction in which the Licensed Technologies will be sold,
distributed, marketed, and/or manufactured by the Licensee or any Sub-Licensee.
4.3 Ownership of Licensed Technologies: Nothing in this Agreement Shall
confer upon Licensee any ownership interest in the Licensed Technologies, and
such indicia of ownership in the Licensed Technologies, inclusive of
methodology, patents and Technologies/protocols are exclusively retained by the
Licensor.
4.4 Certificate of Conformance: Licensee shall apply for any required
certificates of building standards and code approvals as required in the
Territory, and shall meet any and all manufacturing standards imposed by
governmental authorities in the Territory.
5. CONFIDENTIAL INFORMATION.
5.1 Confidential Information: Licensee acknowledges that Licensor's trade
secrets, private or secret processions, methods, protocols, resonance equipment,
and ideas, as they exist from time to time, as well as other corporate
information concerning Xxxxxxxx Resonance Technologies as developed by the
Licensor and contemplated in this Agreement restricts the Licensee to disclosure
of information. The Licensee hereby warrants that it has executed a
confidentiality agreement with the Licensor prior to the execution of this
agreement and that the Licensee will safeguard and preserve said
confidentiality. The Licensee further agrees to require from its Sub-Licensees,
officers, employees and or agents to relinquish any and all rights it may have
in any matter, such as drawings, xxxx of materials, documents, samples and
models/prototypes and to promptly deliver to the Licensor any such matter as the
Licensor may direct at any time; and not to retain any copies or other
reproductions of ant kind without the express written consent of the Licensor. A
breach of this 5.1 confidentiality section is subject to immediate termination
of any license or sub-license agreement and other legal remedies under law by
the Licensor included but not limited to monetary damages, equitable relief,
temporary restraining order, temporary and permanent injunction or any other
remedy available to the Licensor.
5.2 Exclusions: Confidential information does not include the following:
(a) information which is public and has been released by the Licensor; (b)
information in the public domain; (c) information disclosed by a third party who
was free to disclose it, provided that the burden shall be upon the Licensee to
establish that this exclusion is applicable; and (d) disclosure of information
through no wrongful act of the Licensee and or Sub-Licensee.
5.3 Execution of Agreement: Licensee agrees that the Licensee's assigned
personnel, including Sub-Licensees engaged by the Licensee, will prior to
commencement of their assigned activities relating to the Licensed Technologies,
acknowledge in writing that they agree to be bound by the provisions set forth
in section 5 of this License Agreement. Despite the express agreement of the
parties, any provision as stated herein shall be determined by any court or
other tribunal of competent jurisdiction to be unenforceable for any reason
whatsoever, the parties agree that the provision shall be interpreted to the
maximum extent in any and all other respects as to which it may be enforceable.
Nothing contained herein shall be construed as prohibiting the Licensor from
pursuing any and all other remedies available to it for such breach or
threatened breach of confidentiality.
5.4 Restriction: During the term of this Agreement, and for a period of two
(2) years following completion of all services rendered by Licensee pursuant to
this Agreement, Licensee agrees that it will not, directly or indirectly, either
for itself or on behalf of any third party, develop, engineer, manufacture,
produce or consult to do any of the foregoing, relating to any device employing
magnetic technology, whose purpose is the direct or indirect competition with
the Licensor.
5.5 Remedies: Licensee acknowledges and agrees that Licensor's remedy at
law for a breach or threatened breach of the provisions of this Section 5 would
be inadequate and the breach shall be per se deemed as causing irreparable harm
to Licensor. In recognition of this fact, in the event of a breach by Licensee
of any of the provisions of this Section 6, Licensee agrees that, in addition to
any remedy at law available to Licensor, including, but not limed to monetary
damages, without posting any bond, shall be entitled to obtain equitable relief
in the form of specific performance, temporary restraining order, temporary or
permanent injunction or any other equitable remedy which may then be available
to Licensor. In the event that, despite the express agreement of the parties,
any provision stated herein shall be determined by any court or other tribunal
of competent jurisdiction to be unenforceable for any reason whatsoever, the
parties agree that the provision shall be interpreted to extend only to the
maximum extent in any and all other respects as to which it may be enforceable,
all as determined by such court or tribunal. Nothing herein contained shall be
construed as prohibiting Licensor from pursuing any other remedies available to
it for such breach or threatened breach.
6. ADVERTISING AND ADVERTISING MATERIALS.
6.1. Advertising Approval: A copy of any and all materials that Licensee
proposes to use in connection with its marketing and distribution of the
Licensed Technologies shall be provided to Licensor (together with an English
translation thereof if such materials are prepared in a language other than
English) 30 days in advance of any publication or distribution for review.
Licensed Technologies manufactured for export and orders placed by other
Licensee's of the Licensor which will be sold outside of the Territory will
require that the informational content be approved to meet importation
guidelines and claims made.
7. ROYALTIES.
7.1. Manufacturing and/or Distribution Royalty:
7.1.1 Minimum Royalty Requirement: In consideration for the Licensee granted
hereunder, Licensee shall pay to Licensor a minimum royalty (the "Minimum
Royalty") of $30.00 US dollars per portable unit priced upwards of $499.00 plus
10% of the gross profit of P.E.R. All portable units priced at $500.00 and above
will inure a 15% royalty of the gross profit of P.E.R. to the Licensor. All
add-on and replacement parts will generate a 15% royalty of the gross profit of
P.E.R. to the Licensor. These royalties will be paid quarterly in US dollars
within fifteen (15) days after the end of the quarter. (See EXHIBIT B). (Please
note that there is a possibility of having a manufacturing license agreement and
a separate distribution agreement and both carry a royalty payment to the
Licensor).
7.1.2 Payment of Manufacturing Royalty: Licensee shall pay to Licensor a
manufacturing and/or Distribution royalty fee (if applicable) per each resonator
constructed, produced, assembled, sold or placed into service (sold) a
Manufacturing Royalty ("Manufacturing Royalty") Payment of (Not Applicable to
P.E.R., Inc., see section 7.1) per each resonator produced and or distributed by
the Licensee or Sub-Licensee.
7.1.3 The Manufacturing Royalty payments hereunder shall be accounted for and
paid quarterly in United States currency (dollars) within fifteen (15) days
after the close of each three (3) month period, quarter, during each License
Year. A manufacturer report must accompany payment.
7.1.4 The Licensee is responsible for the collection of any royalty payments
due from Sub-Licensees and remittance of such royalty payments to the Licensor.
The Manufacturing Royalty payable for each such accounting period during each
License Year shall be computed on the basis of gross business volume from the
beginning of each License Year through the last day of the most recent
accounting period during such year. Licensor and its duly authorized
representatives have the right, upon reasonable notice, during regular business
hours at Licensee's principal offices in Florida, for the duration of this
Agreement and for five (5) years thereafter, to audit said books of account and
records of Licensee and examine all other documents and material in the
possession or under the control of Licensee with respect to matters which are
required to be reported to Licensor under this Agreement within three (3) years
after the end of each License Year, and to make extracts and copies thereof.
Licensee's accounting records of sales shall be maintained separately from
Licensee's accounting records relating to other items manufactured or
sold/distributed by Licensee or its Sub-Licensees. All such books of account,
records and documents shall be kept available by Licensee or its Sub-Licensees
for at least five (5) years after the end of each year to which they relate. In
connection with any audit or examination pursuant to this paragraph, Licensor
and its duly authorized representatives shall have the right to examine and
inspect Licensee's physical inventory of Licensed Technologies, wherever same is
kept. Licensor shall have a period of time of three (3) months following the
close of any audit to assert any claims for discrepancies.
Any claims not asserted within the three (3) month period following the close of
any audit will be barred. The provisions of this paragraph and Licensee's
obligations hereunder shall survive the expiration or termination of this
Agreement.
7.1.4 Distribution Royalty and Representation: The Licensee agrees to pay the
Licensor upon the sales, placement, and/or distribution of any resonator whether
medical, industrial or any other Technologies use a royalty licensing fee (the
"Distribution Royalty") equal to; (Not applicable to P.E.R., Inc., see section
7.1) % of the net sales price for which the Licensee or its Sub-Licensee sells,
places and/or distributes said resonator. These Distribution Royalty payments
are on a per unit basis. Payment shall be made within 15 days after the close of
every quarter in U.S. Funds. A summary report on sales and activities must
accompany payment. The Licensee is responsible for the collection of any royalty
payments due from its Sub-Licensees and remittance of such royalty payments to
the Licensor. The Licensor reserves the right to inspect any and all
transactions, records, receipts and payments records pertaining to this
agreement under Sections 5 and 7. Licensee will make available any and all
payment records in order to substantiate proper accounting of royalties to the
Licensor. The Licensor agrees to pay for any and all expenses inclusive
accounting personnel, travel, lodging, etc. with regards to such an inspection
and review. The Licensor agrees to provide a minimum of 10 days notice prior to
such an accounting audit. Within 30 days of completion of such an accounting
audit the Licensor will provide to the Licensee a complete report of the audit
for their records. Any payments due to the Licensor or credits/refunds due to
the Licensee will be paid within 30 days of audit report issue date.
The Licensee grants to the Licensor the right to audit any and all books and
records pertaining to the Licensed Technologies, twice a year by the Licensor's
designated accounting and corporate personnel.
7.2 Initial License Payment: The Licensee shall pay the Licensor for
consideration in granting said license to the Licensee the sum of $100,000.00
dollars. This payment is to be received by the Licensor in payments as per the
schedule below.
(a) Initial payment of $25,000 upon signing of this agreement.
(b) 10% of investment funds raised as received by P.E.R., Inc., with the
balance of 25% raised as each benchmark of subsequent $100,000 is
raised for P.E.R. until the $100,000 licensing fee is paid to the
Licensor, no later then six (6) months after the signing of this
agreement.
7.3 Licensed Technologies Liability Insurance: Licensee shall procure and
maintain at its own expense in full force and effect at all times during which
Licensed Technologies are being sold and for so long as Licensee remains in
business, with a responsible insurance carrier reasonably acceptable to
Licensor, a products liability insurance policy with respect to Licensed
Technologies with a limit of liability of not less than $1,000,000.00 USD. Such
insurance policy shall name Licensor as an additional insured and shall provide
for at least thirty (30) days prior written notice to said parties of the
cancellation or substantial modification thereof. Such insurance may be obtained
by Licensee in conjunction with a policy of products liability insurance which
covers products other than Licensed Technologies. Licensee shall deliver a
certificate of such insurance to Licensor promptly upon issuance of said
insurance policy and, from time to time upon reasonable request by Licensor
promptly shall furnish to Licensor evidence of the maintenance of said insurance
policy. Nothing contained in this Section 7.3 shall be deemed to limit in any
way the indemnification provisions of Section 10 below.
The provisions of this paragraph and Licensee's obligations hereunder shall
survive the expiration or termination of this Agreement. (*Explanation of
liability for manufacturing, see addendum.)
Insurance Carrier: ______________________________________________________
(A copy of the liability insurance policy is to be sent to the Licensor
upon issuance).
8 BOOKS, RECORDS & STATEMENTS
8.1 Books, Records & Statements: Licensee shall prepare and maintain
complete and accurate books of account, records and statements. The Licensee
shall deliver to the Licensor, at the time each Manufacturing or Distribution
Royalty payment is due, a statement signed by duly authorized officer of
Licensee certifying (a) the amount of sales made during the period covered by
such royalties; (b) the basis for computation of the amount of royalty included
in such statement.
In connection with any audit or examination pursuant to this section.
Licensor and its duly authorized representatives shall have the right to examine
and inspect Licensee's physical inventory of products utilizing Licensed
Technologies, wherever same is kept. Any claims not asserted within a year
following the close of any audit will be barred.
8.2 Audit Expenses: If, as a result of any audit of the Licensee's books,
records and statements it is shown that Licensee's Sales/Manufacturing Royalty
payments were less than the amount which should have been paid by an amount
equal to four percent (4%) or more of the payments actually made with respect to
sales or manufacturing occurring during the period in question, Licensee shall
reimburse Licensor for the cost of such audit and shall make all payments
required to eliminate any discrepancies which may have been revealed by such an
audit. Any request for payment shall be accompanied by a detailed report setting
forth the deficiency.
9. OWNERSHIP AND PROTECTION OF THE LICENSEDTECHNOLOGIES
9.1 Restriction on Use of Name: Licensee shall not have the right to use
the Licensor's name or the name "Xxxxxxxx" in the name of its corporation or as
an assumed name of its corporation.
9.2 Ownership of Licensed Technologies: Licensee acknowledges that the
Licensor is the owner of all rights, title and interest in and to the Licensed
Technologies and is also the owner of the goodwill attached or which shall
become attached to the Licensed Technologies in connection with the business and
goods in relation to which the same has been.
9.3 Licensee's Cooperation: The Licensee shall not at any time, do or
suffer to be done any act or thing which may adversely affect any rights of the
Licensor in and to the Licensed Technologies or any registrations thereof or
which, directly or indirectly, may reduce the value of the Licensed Technologies
by Licensee or confers rights to the Licensed Technologies. Licensee hereby
assigns its entire right, title and interest in and to any such rights to the
Licensed Technologies to Licensor subject to the terms hereof.
9.4 Licensee's Cooperation: At Licensor's request, Licensee shall execute
any documents reasonably required by the Licensor to confirm Licensor's
ownership of all rights in and to the Licensed Technologies in the Territory and
the respective rights of Licensor and Licensee pursuant to this Agreement,.
Licensee shall cooperate with Licensor in connection with the filing and
prosecution of applications to register the Licensed Technologies to Licensor
subject to the terms hereof.
9.5 Legal Requirements: Licensee shall use the Licensed Technologies in the
Territory strictly in compliance with the legal requirements in the Terrirory
pertaining thereto.
9.6 Prohibition Against Challenges by Licensee: Licensee never shall
challenge or take any action in conflict with, or potentially in conflict with,
Licensor's ownership of or the validity of the Licensed Technologies or any
applications for registration thereof, or any trademark, governmental license,
or any rights of the Licensor therein.
9.7 Infringement Actions: In the event that either Licensor or Licensee
learns of any infringement or imitation of the Licensed Technologies or of any
use by any person company which is utilizing the like device or patent similar
to the Licensed Technologies, whether in the Territory or not, they shall notify
the other party. Upon such notification the Licensor shall take such action as
it deems advisable for the protection of its rights in and to the Licensed
Technologies and, if requested to do so by the Licensor, Licensee shall
cooperate with Licensor in all reasonable respects, at the Licensor's sole
expense. Licensor recognizes that in regard to any counterfeiting of the
Licensed Technologies, Licensee may take immediate legal action, at its own
expense, upon prior notification and approval by the Licensor. Such approval
shall be deemed to have been granted unless within four (4) business days after
the receipt of such request, Licensor notifies the Licensee in writing of its
disapproval. Licensor shall cooperate with Licensee in taking such legal action,
at no cost to the Licensor.
10. INDEMNITY
10.1 Indemnity: Excepting in regard to trademark infringement actions,
Licensee does hereby save and hold Licensor harmless of and from and indemnify
Licensor against any and all losses, liability, damages and expenses (including
reasonable attorney's fees, costs and expenses through appeal) which Licensor
may incur or may be obligated to pay, or for which Licensor may become liable or
be compelled to pay in any action, claim or proceeding against it by reason of
any acts, whether by omission or commission, that may be claimed to be or are
actually committed, permitted to take place or suffered by the Licensee or any
of its Sub-Licensees, contractors, agents, employees, officers or management in
connection with the Licensee's performance under this Agreement. Licensee will
keep Licensor apprised of any actions and shall give prompt notice to the
Licensor and where practicable, in advance of any action to be taken by
Licensee.
The provisions of this paragraph and Licensee's obligations hereunder
shall survive the expiration or termination of this Agreement.
10.2 Relationship of the Parties: The Licensee is not granted any right or
authority to assume or create any obligation or responsibility, express or
implied on behalf of or in the name of the Licensor or bind the Licensor in any
manner or thing whatsoever. The Licensee shall obtain and be required to
maintain any contractual fees, governmental taxes, contributions and other
payable sums inclusive of any type of available public health insurance,
xxxxxxx'x compensation, and any other contributions as required by law within
the Territory to maintain an active business status. The Licensee shall be
responsible to hold the Licensor harmless for all and any claims, demands or
suits which may result from any misconduct or negligence of the Licensee's
owners, personnel, agents, consultants, officers, management and /or employees.
11. DEFAULTS
11.1 Default Right to Terminate: If the Licensee fails to make any payment
due hereunder, (a) Licensee shall pay interest thereon from and including the
date such payment becomes due until the entire amount is paid in full at a rate
equal to three percent (3%) per annum over the prime rate charged by CitiBank,
N.A., New York as of the close of business on the date the payment first becomes
due, but in no event greater than the highest rate permitted by law; (b) if such
a default shall continue uncured for a period of sixty (60 days) after written
notice is received by Licensee, the Licensor then shall have the right to
terminate this Agreement immediately upon notification to the Licensee by the
Licensor to terminate.
The Licensee shall have the option of preventing the termination of
this Agreement by taking corrective action that cures the default, if such
corrective action is taken prior to the end of the time period stated in the
previous paragraph (Section 11.1) and if there are no other defaults during such
time period.
The Licensor shall have the right to terminate this Agreement in the
event of a default in the Minimum Royalty Payment and/or Three (3) or more
default notices occur within a 12 month period whether such notices of default
were cured by the Licensee or not.
11.2 Breach of Material Condition: If the Licensor or Licensee otherwise
fails to perform any of the material terms, conditions, agreements or covenants
in this Agreement on its part to be performed (hereinafter referred to as "Other
Default") and other default is not curable, or if such default is curable but
continues uncured for a period of sixty (60) days after notice thereof has been
given to the defaulting party in writing by the other party or all reasonable
steps necessary to cure such other default have not been taken by the defaulting
party within sixty (60) days after notice thereof has been given to the
defaulting party in writing by the other party or all reasonable steps necessary
to cure such other default have not been taken by the defaulting party within
sixty (60) day period, the other party at its sole election may terminate this
Agreement forthwith by written notice.
11.3 Bankruptcy, Insolvency and Related Occurrences: In the event that
Licensee files a petition in bankruptcy, is adjudicated as bankrupt or files a
petition or otherwise seeks relief under or pursuant to any bankruptcy,
insolvency or reorganization statute or proceeding or if a petition in
bankruptcy is filed against it, which is not vacated within sixty (60 ) days, or
it becomes insolvent or makes an assignment for the benefit of its creditors or
a custodian receiver or trustee is appointed for it or a substantial portion of
its business assets, which is not discharged within sixty (60) days, this
Agreement shall terminate automatically and forthwith.
11.4 No Right of Licensee to Continue Agreement: The rights granted herein
are personal to Licensee and no assignee for the benefit of creditors,
custodian, trustee in bankruptcy or any official charged with taking over
custody of Licensee's assets or business shall have any right to continue this
Agreement or to exploit or in any way use the Licensed Technologies if this
Agreement terminates. Nothing herein shall be deemed to preclude or impair any
rights and remedies which the Licensor may have as a creditor in any bankruptcy
proceeding.
12. RIGHTS OF TERMINATION
12.1 Licensor Claims for Damages: In the event of termination as a result of
a breach by the Licensee, Licensor shall have the option of (a) demanding in
writing that the Licensee pay to it, in addition to any Royalty payments then
owed to the Licensor for Manufacturing and Distribution, as well as any
additional monies owed for services provided to the Licensee if any, as
liquidated damages and not as a penalty sum, a sum equal to the total annual
minimum royalty payments remaining unpaid for the balance of the then current
term of this Agreement. If Licensor does not collect such amount from a new
licensee in an arms length transaction for the same period of time such minimum
royalty covers, upon reasonable efforts by Licensor to obtain a new licensee or
unless Licensor retains the license of itself or any affiliate or (b) waving its
claim for liquidated damages by asserting a claim for actual damages in a
judicial or other proceeding.
12.2 Injunctive Relief - Licensed Technologies: Licensee hereby acknowledges
the irreparable harm that Licensor will incur from any unauthorized use of the
Licensed Technologies.
Licensor shall have and hereby reserves all rights and remedies which
it has, or which are granted to it by operation of law or equity to prohibit the
unlawful or unauthorized use of the Licensed Technologies included but not
limited to seeking a temporary restraining order, preliminary and/or permanent
injunction.
12.3 Inventory: Upon the expiration or termination of this Agreement,
Licensee immediately shall deliver to the Licensor complete and accurate
schedule of Licensee's inventory of products Licensed Technologies and of
related work in process then on hand ("inventory").
12.4 Sale of Inventory: If this Agreement expires or is terminated other
than by Licensor then the Licensee shall be entitled for an additional period of
six (6) months only on a non-exclusive basis to sell and dispose of its
inventory. Such sales shall be made subject to all of the provisions of this
Agreement inclusive accounting and payment of royalty. Such payment shall be due
within thirty (30) days after the close of said six (6) month extention period.
12.5 Reversion of Rights to Licensor: Except as specifically provided in
this Agreement above, on the expiration or termination of this Agreement, all of
the rights of Licensee under this Agreement shall terminate forthwith and shall
revert immediately to Licensor, all royalties on sales and manufacturing shall
become immediately due and payable and Licensee shall discontinue forthwith all
use of the Licensed Technologies, and shall promptly transfer to Licensor free
of charge any and all registrations, filings, and rights if any with regards to
the Licensed Technologies which it may have possessed at any time.
Licensee hereby irrevocably appoints Licensor as Licensee's attorney-
in-fact, effective upon the termination or expiration of this Agreement, to take
the necessary steps on Licensee's behalf in the Territory to cancel any
recordation of the license granted hereunder and to execute any instruments
necessary or desirable to confirm termination of Licensee's rights under this
Agreement.
13. REPRESENTATION AND WARRANTIES OF LICENSOR
13.1 Representations and Warranties. Licensor represents and warrants that
the Licensor has full right, power and authority to enter into this Agreement
and to perform all of its obligations hereunder.
14. NOTICES
14.1 Notice Requirements: All reports, approvals, requests, demands, and
notices (collectively "notices") required or permitted by this Agreement to be
given to a party shall be in writing and shall be deemed to be duly given if
personally delivered or if sent (by facsimile or overnight courier) to the party
concerned at its address set forth in this Section. Copies of all notices to the
Licensor and all Payments required to be made to Licensor, shall be sent to:
Xxxxxxxx Resonance Enterprises, Inc.
0000 Xxx Xxxx, Xxxxx #000
Xxxxxxx Xxxxx, XX 00000
XXX
Copies of all notices to Licensee shall be sent to:
P.E.R. Inc.
Suite 4, Temple Building
Main & Prince Xxxxxxx Streets
Charlestown, Federation of St. Kitts Nevis.
15. ASSIGNABILITY
15.1 Assignability and Binding Effect: The Licensee maintains the right to
assign, sub-license or transfer this License Agreement to qualified companies in
the Territory with the approval and consent of the Licensor, said approval not
to be unreasonably withheld. Any such assignment rights to distribute and or
manufacture the Licensor's Licensed Technologies shall be made in compliance
with existing License Agreement and any Sub-Licensee shall agree in writing to
be bound by the same substantive terms and conditions hereof. Except as provided
herein, this Agreement shall inure to the benefit of and shall be binding upon
the parties, Licensee's permitted successors and assigns, and Licensor's
successors, transferees and/or assigns.
Licensor has the right under this Agreement to transfer and/or assign
this Agreement as it may deem prudent or necessary without any consent or
approval from the Licensee. The Licensor will notify within ten (10) days the
Licensee of such transfer or assignment has been executed by the Licensor in
writing. In the event of any such transfer or assignment by Licensor, the
transferee or assignee shall have all of the rights, and shall assume and be
subject to all of the obligations of Licensor under this Agreement.
16. RESOLUTION OF DISPUTES
16.1 Jurisdiction: The Licensor and Licensee hereby irrevocably submit to
the personal jurisdiction of the federal and state courts of the State of
Florida, in the venue of Palm Beach County (the "Courts") in any action or
proceeding arising out of or relating to this Agreement. In any court
proceeding, the Courts shall have exclusive jurisdiction over the subject matter
of this Agreement.
16.2 Waiver of Immunity: To the extent that either party has or hereafter
may acquire any immunity from jurisdiction of any court or from legal process
with respect to itself or its property, the parties irrevocably waive such
immunity with respect to their respective obligations under this Agreement.
17. MISCELLANEOUS
17.1 Services: Unless otherwise provided, in the event the Licensee elects
as evidenced by an agreement in writing to purchase any services from the
Licensor, it shall pay for such services at the Licensor's rates then currently
in effect for such services as set forth in writing. All invoices for such
services shall be paid by the Licensee within thirty (30) days after receipt
thereof.
The Licensee will be responsible for any incidentals associated with
the purchase of any services from the Licensor. The Licensee will be responsible
for any importation charges such as customs, shipping, duties and incidentals
for any products utilizing Licensed Technologies being shipped into the
Territory by the Licensor. The Licensee is also responsible for business
development expenses within the Territory inclusive of research, permits,
personnel, product services, maintenance, etc.
18. GOVERNING LAW
18.1 Governing Law Entire Agreement: This Agreement shall be construed and
interpreted in accordance with the laws of the State of Florida, USA; contains
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes all prior oral and written
understandings and agreements. This Agreement may not be modified, amended,
discharged or terminated orally except by a written notification signed by the
party against whom the modification, discharge or termination is sought to be
enforced.
19. WARRANTIES
19.1 Warranties: The Licensor does not make any warranties with respect to
the use, sale, manufacturing, or other transfer of the Licensed Technologies by
Licensee or by any third party. In no event will the Licensor be liable for
direct, indirect, special, incidental, or consequential damages, that are in any
way related to the Licensed Technologies.
19.2 Relationship: Nothing herein contained in this Agreement shall be
construed to constitute the parties hereto as partners or joint venturers, or
either as agent of the other, and no party shall have any power to obligate or
bind the other in any manner whatsoever.
19.3 Waivers: No waiver by either party, whether express or implied, of any
provision of this Agreement, or of any breach or default thereof, shall
constitute a continuing waiver of such provision or of any other provision of
this Agreement. Acceptance of payments by the Licensor shall not be deemed a
waiver by Licensor of any violation or default under any of the provisions of
the Agreement by the Licensee.
19.4 Severability: If any provision or any portion of any provision of this
Agreement shall be held to be void or unenforceable, the remaining provisions of
this Agreement and the remaining portion of any provision held void or
unenforceable in part shall continue in full force and effect.
19.5 Descriptive Headings: The descriptive headings used and inserted in
this Agreement are for convenience only and shall not be deemed to affect the
meaning or construction of any provision of this Agreement.
IN WITNESS THEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
XXXXXXXX RESONANCE ENTERPRISES, INC.
/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx, President & Chief Operating Officer
P.E.R. Inc.
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx, President
EXHIBIT A
TERRITORIES
The territories granted under this agreement for the marketing and
distribution of Portable Battery Powered Resonators For Human Usage are as
follows.
1. Worldwide coverage excepting the United States of America.
2. Upon FDA clearance, the "right of last refusal" for the United States of
America will be granted to P.E.R., Inc. (See exhibit B for licensing rights
& fees, royalties, and performance criteria).
EXHIBIT B
LICENSING RIGHTS & FEES, ROYALTIES AND PERFORMANCE CRITERIA
1. Licensing fee for worldwide distribution excepting the United States of
America = $100,000 as per the pay out schedule as outlined in section 7.2.
A. Initial payment of $25,000 upon signing of this agreement.
B. 10% of investment funds raised as received by P.E.R., Inc., with the
balance of 25% raised as each benchmark of subsequent $100,000 is
raised for P.E.R. until the $100,000 licensing fee is paid to the
Licensor, no later then six (6) months after signing of this agreement.
2. Royalty payments to JRSE as stated in section 7.1.1. are as follows.
A. $30.00 US dollars per portable unit priced upwards of $499.00 plus 10%
of the gross profit of P.E.R. to the Licensor. All portable units
priced at $500.00 and above will inure a 15% royalty of the gross
profit to the Licensor. All add-on and replacement parts will generate
a 15% royalty of the gross profit of P.E.R. to the Licensor. These
royalties will be paid quarterly in US dollars within fifteen (15) days
after the end of the quarter.
3. Performance criteria for P.E.R.
A. Twelve (12) months from first day of sales = 2,200 units.
B. From the 13th to the 24th month of sales = additional 2640 units.
C. From the 25th to the 36th month of sales = additional 3168 units.
D. The total for the first three years of sales will equal no less then
8008 units.
4. FDA clearance procedure in the United States of America for the Battery
Powered Portable Resonator for Human Usage and licensing rights for P.E.R.,
Inc.
A. JRSE and P.E.R. are aware that FDA clearance is needed in order to
market the portable resonators in the USA. JRSE and P.E.R. are also
aware that as in all devices requiring clearance that one indication at
a time is submitted to FDA for that clearance.
B. JRSE and P.E.R., Inc. will share in the costs for each clinical study
required by FDA for clearance and both will be reimbursed "off the top"
upon initiating sales of the cleared resonator. In the event that
either JRSE or P.E.R., Inc. pays in full for the required clinical
studies for clearance that entity will be reimbursed in full "off the
top" upon initiating sales of the cleared resonator.
C. P.E.R., Inc. is granted forthwith the "right of last refusal" to obtain
licensing rights in the USA for the marketing and distribution of the
FDA "cleared" portable unit. P.E.R., Inc., will have met all the
previously stated performance criteria to qualify for this "right of
last refusal."
1. The value assessment (cost) to obtain this licensing rights and
royalty structure will be determined immediately after FDA clearance
is given.
2. In the event that a third party/entity bids on the licensing rights
and this bid is accepted, JRSE and P.E.R., Inc. agree to:
a. Divide the value of the licensing rights in the following manner
- 75% (seventy-five percent) to JRSE and 25% (twenty-five
percent) to P.E.R., Inc. This includes, but is not limited to,
licensing fees, royalties, etc.
