Exhibit 10.3
EXCLUSIVE LICENSE AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of 2 May 2007
("Effective Date"), by and between MOTORSPORTS EMPORIUM INC. ("MSEM"), a Nevada
corporation, located at 0000 X Xxxxxxx Xx., Xxxxx X, Xxxxxxxxxx, XX 00000 and
AXIA GROUP, INC., a Nevada corporation, located at 0000 Xxxxxxxxx Xx., Xxxxx
000, Xx Xxxx, XX 00000 ("AXIA").
WITNESSETH:
In consideration of the mutual covenants and conditions herein contained,
the sufficiency and receipt of which are hereby acknowledged and intending to be
legally bound hereby, MSEM and AXIA mutually agree as follows:
1. DEFINITIONS.
"Certified Performance" shall mean the minimum product manufacture and
performance specifications to be agreed between AXIA and MSEM to be added as
Exhibit A to this Agreement when completed.
"Commencement Date" shall mean that first date that the initial Certified
Performance standards, the Technology pricing, Technology delivery terms and any
other Technology parameters specified under this Agreement shall be established
and agreed to between the parties in writing.
"Confidential Information" shall mean any and all information or portion thereof
disclosed to or otherwise acquired or observed by Receiving Party either
directly or indirectly from the Disclosing Party, including but not limited to
inventions, improvements, copyrights, copyrightable materials enhancements,
modifications, discoveries, claims, formulae, processes, apparatuses, research,
development, Patents, Technical Information, Intellectual Property, know-how,
trade secrets, knowledge, designs, drawings, specifications, concepts, data,
reports, methods, documentation, methodology, pricing, marketing plans, customer
lists, salaries or business affairs, and any other information or knowledge
owned or developed by the Disclosing Party, except for information which the
Receiving Party can demonstrate: (i) was at the time of disclosure to Receiving
Party part of the public domain or thereafter becomes part of the public domain
through no act or omission by Receiving Party; (ii) was lawfully in Receiving
Party's possession as shown in written records prior to disclosure by the
Disclosing Party and without obligation of confidentiality; (iii) was
independently developed by Receiving Party without any breach of this Agreement
or, in the case of AXIA, was independently developed without the use or benefit
of the Technology or Intellectual Property of MSEM; or (iv) was lawfully
received by the Receiving Party after disclosure from a third party without
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obligation of confidentiality and without violation by said third party of an
obligation of confidentiality to another party.
"Customers" shall mean any party to whom AXIA markets, distributes or sells the
Technology or services related to the Technology.
"Demonstration Systems" shall mean Technology sold by AXIA for promotional
purposes, where MSEM and AXIA agree in advance that the sale is for the purpose
of demonstrating the technology and reliability of the system for a Customer.
"Disclosing Party" shall mean the party which is disclosing Confidential
Information to the other party.
"Intellectual Property" shall mean any copyrightable or copyrighted materials
(including software, specifications and manuals), Patents and/or Technical
Information which is embedded in, incorporated into or are used in the creation
of or in conjunction with the Technology.
"Plant" shall mean a complete operational manufacturing system based on the
Technology.
"Patents" shall mean all current and future patent or patent application in any
country in the Territory owned by or licensed to MSEM, including any extensions
or future extension mechanisms, including Supplementary Protection Certificates
or the equivalent thereof, renewals, continuations, continuations-in-part,
divisions, patents-of-additions, and/or re-issues thereof, which contains one or
more claims covering any part of the Technology.
"Technology" shall mean the machinery, plants, panels and construction methods
utilizing the systems and Technology as specified in Exhibit C, attached hereto,
which Exhibit may be modified from time to time by MSEM, with prior written
notice to AXIA.
"Receiving Party" shall the party which is receiving Confidential Information
from the other party.
"Technical Information" shall mean unpublished research and development
information, unpatented inventions, know-how, trade secrets, techniques,
practices and technical data owned by or under the control of MSEM and provided
by MSEM to AXIA which are necessary or useful for the commercial exploitation of
Technology, and which are not generally publicly known. "Technical Information"
shall not include any material that was independently developed by or on behalf
of AXIA without any breach of this Agreement and without the use or benefit of
the Technology or Intellectual Property of MSEM.
"Territory" and/or Territories shall mean the countries of Sri Lanka, Pakistan
and, nonexclusively, parts of India, as set forth in Exhibit A, attached herein.
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2. APPOINTMENT AND RIGHTS.
(a) Pursuant to the terms of this Agreement, MSEM hereby grants AXIA (i) an
exclusive, transferable, revocable right to use, market, sell and distribute the
Technology to Customers in the Territory.
(b) AXIA may use MSEM's trademarks, service marks and trade names listed in
Exhibit B, attached hereto (the "Trademarks"), in the Territory, on a
non-exclusive basis only for the term of this Agreement and solely for display
or advertising purposes in connection with marketing, selling, and distributing
the Technology in accordance with this Agreement. AXIA shall not at any time do
or permit any act to be done which may in any way impair the rights of MSEM in
the Trademarks.
(c) If AXIA receives any request from a prospective purchaser of the
Technology or energy generated from the Technology located outside the
Territory, AXIA shall immediately refer that request to MSEM and MSEM and AXIA
shall mutually agree to the disposition of that request.
(d) AXIA shall all reasonable efforts to promote the sale of the Technology
in the Territory.
(e) It is the intent of the parties to this Agreement that the rights
granted to AXIA under this Section 2 are contingent upon AXIA purchasing,
producing and or selling a certain amount of Technology as per Schedule D of
this agreement for the initial twenty-four (24) month period beginning on the
Commencement Date and continuing thereafter Failure to meet such a standard
shall constitute a default as defined in Section 10 (b).
3. OWNERSHIP.
(a) AXIA acknowledges that the Intellectual Property and the Trademarks are
the property of MSEM and/or MSEM's licensors and nothing in this Agreement
hereby grants AXIA any ownership to the Intellectual Property (including, but
not limited to, any Technology Technology, Technology-related Materials and
Source Materials) or the Trademarks. MSEM shall retain all right, title and
interest in and to the Intellectual Property and the Trademarks. No rights or
licenses with respect to the Intellectual Property or the Trademarks are granted
or deemed granted hereunder or in connection herewith.
(b) AXIA may not, nor allow any third party, including any Customer, to (i)
decompile, disassemble or reverse engineer the Intellectual Property or
Technology, or (ii) remove the Intellectual Property from the Technology for any
purpose whatsoever. The copyright notices and other proprietary legends shall
not be removed from the Technology or any Intellectual Property. Any agreement
between AXIA and Customer relating to the Technology shall specifically provide
that Customer covenants to the foregoing provisions of this Section 3(b).
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(c) AXIA may not (i) sell, market or distribute, or (ii) use (or permit any
third party, including the Customers, to use) the Intellectual Property except
as such Intellectual Property is used in, contained and/or embedded in the
Technology.
(d) In order to comply with MSEM's quality control standards, AXIA shall:
(i) use the Trademarks in compliance with all relevant laws and regulations;
(ii) obtain MSEM`s prior written approval of each such use; (iii) provide MSEM
with samples of promotional materials on which the Trademarks have been affixed,
in order to confirm that AXIA's use of such Trademarks is in compliance with
this Agreement; and (iv) not modify any of the Trademarks in any way and not use
any of the Trademarks on or in connection with any goods or services other than
the Technology. Once a use is approved by MSEM for a particular trademark, AXIA
shall not be required to seek permission for identical uses of such Trademark.
4. PURCHASE ORDERS, PRICING, SHIPMENT AND ACCEPTANCE.
(a) AXIA shall provide MSEM, during the term of this Agreement, a written
forecast of projected sales each December for the preceding twelve and
twenty-four months. Such forecasts shall be non-binding and shall be for
information purposes only.
(b) AXIA may, from time to time, place purchase orders with MSEM. Each
purchase order shall contain relevant information, including without limitation,
the Technology pricing, the amount of Technology to be ordered, payment
schedule, including the amount of down payment for the Technology to be advanced
by AXIA, delivery location, Customer name, cancellation fees and delivery.
(c) AXIA shall have the right at any time to request changes in the
drawings, designs, specifications, quantities, and delivery schedules, methods
of shipment or packaging and place of inspection or acceptance and/or point of
delivery of any item in purchase orders and MSEM agrees to respond within ten
(10) business days to such request.
5. FEES.
(a) In consideration for the licenses granted in Sections 2(a) and 2(b)
above, AXIA shall pay MSEM $100,000,00 ("the Initial Fee"). This Initial Fee
shall grant AXIA exclusive rights to the Territories for a 2 year period. This
Initial Fee shall be waived in consideration of the terms and conditions set
forth herein.
(b) All amounts due and owing to MSEM hereunder but not paid to MSEM on the
due date thereof shall bear interest (in U.S. Dollars) at the rate of the lesser
of: (i) one per cent (1%) per month; and (ii) the maximum lawful interest rate
permitted under applicable law unless (a) MSEM is in breach of this Agreement
relating to the particular purchase order or (b) the parties are in a good faith
dispute regarding the Technology for which payment is due. Such interest shall
accrue on the balance of unpaid amounts from time to time outstanding from the
date on which portions of such amounts become due and owing until payment
thereof in full.
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(c) All payments due hereunder shall be paid in U.S. dollars and shall be
originated from a United States bank located in the United States and shall be
made by bank wire transfer in available funds to such account as MSEM shall
designate before such payment is due. For the sole purpose of calculating
royalties due to MSEM for sales by AXIA in any currency other than US dollars,
such currency shall be converted to US dollars and shall be calculated using the
appropriate foreign exchange rate for such currency quoted by the WALL STREET
JOURNAL, on the close of business on the last business day of each month for
payments under and 5 (c).
(d) Taxes now or hereafter imposed with respect to the transactions
contemplated hereunder (with the exception of income taxes or other taxes
imposed upon MSEM and measured by the gross or net income of MSEM) shall be the
responsibility of AXIA, and if paid or required to be paid by MSEM, the amount
thereof shall be added to and become a part of the amounts payable by AXIA
hereunder.
(e) AXIA agrees that for a period of two years after delivery of each
written statement referred to in Section 5(d), AXIA shall keep at its principal
place of business complete records of applicable revenues generated by AXIA and
other information necessary to permit MSEM to confirm the accuracy of the
revenues generated, and to make regular entries in such records at its earliest
business convenience for the purpose of determining the revenues generated by
AXIA pursuant to Section 5(d) above. For the sole purpose of verifying AXIA's
performance of AXIA's obligation to make payments hereunder, MSEM will have the
right to examine AXIA's records reflecting such revenue generated and other
information, provided, that such examination is made within two years after the
close of the calendar year in respect of which AXIA's records are being
examined, conducted during AXIA's normal business hours, made after thirty (30)
days' advance written notice to AXIA and limited to no more than one (1)
examination in any calendar year. The results of such examination shall be made
available to both parties but shall be AXIA's Confidential Information. MSEM
shall bear the full cost of the performance of any such examination, unless such
examination discloses a variance of more than ten percent (10%) from the amount
paid as per the original report or payment calculation. In such case, AXIA shall
bear the cost of the examination. AXIA or MSEM shall promptly pay to the other
party any variance disclosed in any such examination, including the reasonable
cost of examination as may be applicable.
6. RELATIONSHIP OF THE PARTIES.
(a) AXIA shall be considered an independent contractor of MSEM. The
relationship between MSEM and AXIA shall not be construed to be that of employer
and employee, nor to constitute an agency of any kind. Neither party shall have
any right to enter into any contracts or commitments in the name of, or on
behalf of, the other party, or to bind the other party in any respect
whatsoever. AXIA shall be solely responsible for the payment of all compensation
to AXIA's employees, and agents, including provisions for employment taxes,
workmen's compensation and any similar taxes associated with employment of
AXIA's personnel. AXIA's employees shall not be entitled to any benefits paid or
made available by MSEM to its employees.
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(b) AXIA shall pay all of its expenses in connection with this Agreement
and the transaction contemplated hereby, including without limitation all
marketing costs, distribution costs, travel, lodging and entertainment expenses,
incurred in connection with its activities hereunder. MSEM shall not reimburse
AXIA for any of those expenses.
(c) In addition, AXIA shall not obligate or purport to obligate MSEM by
issuing or making any affirmations, representations, warranties or guaranties
with respect to the Technology to any third party, other than the affirmations,
representations, warranties or guaranties made by MSEM in this Agreement or in
any other written document provided by MSEM for such purpose, including without
limitation the Certified Performance specifications applicable to such
Technology.
(d) The parties acknowledge that MSEM has represented to AXIA its intention
to produce Technology for AXIA for the markets intended by this Agreement and
that the Technology are intended to meet the Certified Performance and terms of
Section 7(b).
(e) The parties acknowledge that AXIA has represented to MSEM its intention
to actively market and sell Technology to Customers in accordance with this
Agreement.
7. WARRANTIES.
(a) Each party represents and warrants that (i) it is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Nevada and it has full corporate power and authority to own its properties and
to conduct the businesses in which it is now engaged; (ii) it has full corporate
power and authority to execute and deliver this Agreement and to perform all of
its obligations hereunder, and no consent or approval of any other person or
governmental authority is required therefore and the execution and delivery of
this Agreement by such party, the performance by such party of its covenants and
agreements hereunder and the consummation by such party of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and this Agreement constitutes a valid and legally binding obligation of such
party, enforceable against it in accordance with its terms; (iii) the execution
and delivery of this Agreement, the consummation of the transactions
contemplated hereby, or the conduct or affairs of the principal officers and
directors of such party does not violate any provision of the Certificate of
Incorporation or By-Laws of such party or any law, statute, ordinance,
regulation, order, judgment or decree of any court or governmental agency; and
(iv) such party shall adhere to all applicable foreign and U.S. laws, rules and
regulations, including but not limited to any laws relating to export and/or
import of materials and technology and laws relating to the Foreign Corrupt
Practices Act. AXIA further warrants that it has or will obtain all necessary
materials needed to use and/or market, sell and distribute the Technology in the
Territory. AXIA agrees and acknowledges that it will diligently monitor all
applicable laws with respect to countries and territories that are or may become
restricted with respect to AXIA's rights hereunder.
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(b) MSEM warrants and represents to AXIA that the Technology, in the form
delivered by MSEM to AXIA, shall (i) materially conform to the written Certified
Performance specifications, applicable for such Technology provided by MSEM and
approved by AXIA, for a period of twelve (12) months from the date of
installation of such Technology by MSEM at the appropriate site, and (ii) be
free and clear of all liens, claims, encumbrances and other similar restrictions
(other than any security interest retained by MSEM to secure payment for the
Technology).
(c) MSEM additionally warrants and represents to AXIA (i) that it has the
right enter into this Agreement, (ii) that, to its knowledge, the use of the
Technology, the Intellectual Property and the Trademarks in the Field by AXIA
does not infringe or misappropriate any third party's copyright, trademark or
patent or any other intellectual property rights in the Territory, and (iii)
that to its knowledge, there is neither pending nor threatened any claim,
litigation or proceeding in any way contesting MSEM's rights to any of the
Intellectual Property or any of the Technology or attacking the validity or
enforcement of the Intellectual Property.
(d) In the event of a breach of any warranty specified in Section 7(b)(i)
above, MSEM shall, at AXIA's option, (i) correct such non-conformity, (ii)
replace the nonconforming Technology or part thereof, or (iii) refund amounts
paid by AXIA for such nonconforming Technology. The remedy selected by AXIA
shall be its sole and exclusive remedy for breach of such warranty and is in
lieu of any other remedy available hereunder or of law or in equity. AXIA shall
(y) provide MSEM with prompt written notice of any claim under Section 7(b)
above, which notice must identify with particularity the specific breach of
warranty; and (z) fully cooperate with MSEM in all reasonable respects relating
thereto to locate and reproduce the non-conformity.
(E) OTHER THAN AS EXPRESSLY PROVIDED FOR IN THIS XXXXXXX 0, XXXX XXXXXXX NO
REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, WRITTEN OR ORAL TO
AXIA AND MSEM HEREBY DISCLAIMS ALL SUCH REPRESENTATIONS, WARRANTIES AND
CONDITIONS, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT,
MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(f) AXIA warrants and represents to MSEM that it will comply with all
applicable federal, state and local laws, in the country having jurisdiction
including without limitation any environmental laws, applicable to the use of
the Technology in the Field.
8. LIMITATIONS ON LIABILITY.
(a) EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY CUSTOMERS OR OTHER THIRD PARTIES
FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER INDIRECT DAMAGES OR
FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES ARISING OUT OF THE
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MANUFACTURE, SALE OR SUPPLYING OF THE TECHNOLOGY, OR FAILURE OR DELAY IN
SUPPLYING THE TECHNOLOGY, WHETHER BASED XXXX XXXXXXXX, XXXXXXXX, XXXX, XXXXXX
LIABILITY OR OTHERWISE.
(b) EXCEPT FOR THE PARTIES' INDEMNIFICATION OBLIGATIONS UNDER THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S LIABILITY ARISING OUT OF THIS
AGREEMENT, WHETHER BASED XXXX XXXXXXXX, XXXXXXXX, XXXX, XXXXXX LIABILITY OR
OTHERWISE, EXCEED THE GREATER OF (I) THE AGGREGATE PRICE PAID BY AXIA FOR
TECHNOLOGY UNDER THIS AGREEMENT FOR THE IMMEDIATE TWELVE (12) MONTH PERIOD PRIOR
TO THE CLAIM THAT GAVE RISE TO THE LIABILITY, OR (II) THE PRICE PAID BY AXIA FOR
THE TECHNOLOGY GIVING RISE TO SUCH LIABILITY.
(c) IN NO EVENT WILL MSEM BE LIABLE HEREUNDER TO AXIA, CUSTOMERS OR OTHER
THIRD PARTIES FOR ANY OF THE FOLLOWING: (I) DAMAGES CAUSED BY AXIA'S FAILURE TO
PERFORM ITS COVENANTS AND RESPONSIBILITIES; (II) DAMAGES CAUSED BY IMPROPER OR
DEFECTIVE INSTALLATIONS OF THE TECHNOLOGY. (III) DAMAGES CAUSED BY THE SUPPLY OF
TECHNOLOGY BY AXIA FOR USE IN, OR THE USE OF THE TECHNOLOGY IN, ANY SYSTEM OR
CONFIGURATION NOT DESIGNED TO ---- STANDARDS, OR ANY SYSTEM OR CONFIGURATION FOR
WHICH AXIA OR ANY CUSTOMER HAS SUBSTITUTED MATERIALS AND/OR GOODS NOT SPECIFIED
BY MSEM; (IV) DAMAGES DUE TO DETERIORATION DURING PERIODS OF STORAGE BY AXIA OR
THE CUSTOMERS; OR (VI) ANY ACCIDENT, NEGLECT, DISASTER, OR MISUSE WHICH DIRECTLY
OR INDIRECTLY AND CAUSES THE FAILURE OF THE TECHNOLOGY.
(d) The limitations of liability reflect the allocation of risk between the
parties. The limitations specified in this Section 8 will survive and apply even
if any limited remedy specified in this Agreement is found to have failed of its
essential purpose.
(e) An action for breach of this Agreement may not be brought by MSEM or
AXIA more than one (1) year after the cause of action has accrued.
9. INDEMNIFICATION.
(a) MSEM shall indemnify, defend and hold harmless AXIA and its respective
officers, directors, shareholders, and employees, (collectively "AXIA
Indemnitees") against all damages, claims, liabilities, losses and other
expenses, including without limitation reasonable attorneys' fees and costs
awarded against AXIA by a court of competent jurisdiction pursuant to a final
judgment in favor of a third party claimant, that arise out of (i) any claim
that AXIA's authorized use of the Technology hereunder the Intellectual
Property, or any part thereof, infringes or violates any such third party's
copyrights, trademarks, patents, or any other intellectual property rights in
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the Territory, and (ii) any grossly negligent act or omission of MSEM, its
authorized agents or subcontractors.
Should the Intellectual Property, or any part thereof, become or in MSEM's
reasonable opinion, upon consultation with counsel, be likely to become the
subject of any infringement claim for which MSEM is obligated to indemnify AXIA
pursuant this Section 9(a), then MSEM may, without additional cost to AXIA and
in MSEM's sole discretion, following discussion with AXIA, (a) procure for AXIA
the right to continue using the Technology or Intellectual Property without
liability of any kind; (b) modify the Technology or Intellectual Property so
they are not infringing without loss of functionality or increased costs of use,
operation or maintenance; and/or (c) replace the infringing portions of the
Technology or Intellectual Property with non-infringing substitutes without loss
of functionality or increased costs of use, operation or maintenance
MSEM shall have no obligation under Section 9(a) or other liability for any
infringement or misappropriation claim resulting or alleged to result from: (i)
use of the Technology in any system or configuration not designed to MSEM's
standards, or any system or configuration for which AXIA or any Customer has
substituted materials and/or goods not specified in writing by MSEM; or (ii)
AXIA's continuing the allegedly infringing activity after being notified thereof
and provided with modifications that would have avoided the alleged
infringement. This Section 9 sets forth the exclusive remedy and entire
liability and obligation of each party with respect to intellectual property
infringement or misappropriation claims, including patent or copyright
infringement claims and trade secret misappropriation.
(b) MSEM's obligation to indemnify, defend and hold harmless set forth
above in this Section 9 will not apply unless AXIA (i) promptly notifies MSEM of
any matters in respect of which the indemnity may apply and of which AXIA has
knowledge; and (ii) gives MSEM full opportunity to control the response thereto
and the defense thereof, including any agreement relating to the settlement
thereof, provided that MSEM shall not settle any such claim or action without
the prior written consent of AXIA (which shall not be unreasonably withheld or
delayed); and (iii) cooperates with MSEM, at MSEM's cost and expense, in the
defense or settlement thereof. AXIA may participate, at its own expense, in such
defense and in any settlement discussions directly or through counsel of its
choice on a monitoring and non-controlling basis.
10. TERM AND TERMINATION.
(a) The term of this Agreement shall begin on the Commencement Date and
shall expire for purposes of the rights granted to AXIA for use or marketing of
the Technology, and any and all other rights this Agreement bestows on AXIA, two
(2) years after the Commencement Date, with an automatic right to renew for an
additional two (2) years on the basis that the minimum annual sales volume as
set forth in Attachment D is maintained during each of the previous two years,
unless terminated earlier for non performance pursuant to the terms of Section 5
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or the terms of this Section 10. The Parties intend to negotiate in good faith
for an extension of the term of this Agreement prior to its lapse.
(b) The parties hereto may terminate this Agreement by mutual written
consent. Such termination shall be effective 60 days after such a determination
or upon such other date as the parties may mutually agree upon in writing.
(c) The failure by either party to comply with any of the material
obligations contained in this Agreement shall entitle the other party to give to
the party in default written notice specifying the nature of the default and
requiring such party to cure such default. If such default is not cured within
sixty (60) days (or, if such default cannot be cured within such sixty (60) day
period and the party in default does not commence and diligently continue
actions to cure such default), the notifying party shall be entitled, without
prejudice to any of its other rights conferred on it by this Agreement, to all
remedies available to it by law or in equity, including without limitation, the
termination of this Agreement.
(d) Either party shall have the right to terminate this Agreement in the
event that the other party violates any law, rule or regulation, including those
specified in Section 7(a) above.
(d) Either party may, in addition to any other remedies available to it by
law or in equity, terminate this Agreement by written notice to the other party
in the event the other party shall have become insolvent or bankrupt, or shall
have made an assignment for the benefit of its creditors, or there shall have
been appointed a trustee or receiver of the other party or for all or a
substantial part of its property, or any case or proceeding shall have been
commenced or other action taken by or against the other party in bankruptcy or
seeking reorganization, liquidation, dissolution, winding-up arrangement,
composition or readjustment of its debts or any other relief under any
bankruptcy, insolvency, reorganization or other similar act or law of any
jurisdiction now or hereafter in effect, or there shall have been issued a
warrant of attachment, execution, or similar process against any substantial
part of the property of the other party, and any such event shall have continued
for sixty (60) days un-dismissed, un-bonded and un-discharged.
(e) In the event of any termination of this Agreement, except as otherwise
provided herein, (i) all rights granted to AXIA pursuant to Sections 2(a), 2(b)
and 2(c) shall immediately terminate, except to the extent required to ensure
that all Technology uses by AXIA 's Customers prior to termination shall
continue under their terms and conditions, and AXIA shall cease practicing such
rights and licenses immediately (other than delivering Technology to Customers
who have placed an order with AXIA); (ii) both parties shall promptly return the
other party's Confidential Information; (iii) AXIA shall provide MSEM a list of
all potential Customers to whom AXIA was soliciting, having discussions or
marketing the Technology; and (iv) MSEM shall have a first right to purchase all
or portions of the inventory of Technology that AXIA has accumulated.
(f) Any termination under this Agreement shall be without prejudice to the
rights and remedies of either party with respect to any provisions of this
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Agreement or arising out of breaches prior to such termination and shall not
relieve either of the parties of any obligation or liability accrued hereunder
prior to such termination, including without limitation, indemnity obligations,
nor rescind or give rise to any right to rescind anything done or any payments
made or other consideration given hereunder prior to the time of such
termination and shall not affect in any manner any vested rights of either party
arising out of this Agreement prior to such termination.
(g) Notwithstanding anything else in this Agreement to the contrary, the
parties agree that Sections 1, 3, 5, 6, 7, 8, 10, 11, 12, 14(d) and 14(i) shall
survive the termination or expiration of this Agreement, as the case may be.
11. CONFIDENTIALITY.
(a) Receiving Party may not disclose or divulge the Disclosing Party's
Confidential Information to third parties and shall treat such information as
Receiving Party treats its own Confidential Information but in no event in less
than a degree of care that is a reasonable. The Receiving Party may disclose
Confidential Information its employees (i) who are required to know such
information in connection with the permitted use of such information hereunder
and (ii) who are bound by customary non-use and confidentiality obligations as
set forth in this Section 11.
(b) In the event the Receiving Party must divulge the Disclosing Party's
Confidential Information pursuant to applicable laws, rules or regulations or
pursuant to a court order, the Receiving Party shall promptly notify the
Disclosing Party of such required disclosure and Receiving Party shall only
provide the minimum required amount of Confidential Information to be in
compliance with such applicable laws, rules, regulations or court order.
(c) Each party acknowledges that the breach or threatened breach of
Sections 2(a), 2(b), 2(c), 3 and 11 will result in irreparable injury to the
other party and that, in addition to its other remedies, the other party shall
be entitled to injunctive relief to restrain any threatened or continued breach
of such Sections in any court of competent jurisdiction.
12. INSURANCE.
(a) AXIA shall maintain relevant insurance policies, including but not
limited to general liability and workers' compensation and sufficient amounts of
insurance coverage to cover any liabilities, claims or damages that may arise
under this Agreement. Such insurance shall be maintained throughout the term of
this Agreement. AXIA agrees that each insurance policy shall: (i) be maintained
with an insurer having a rating of at least an A- in the most currently
available Best's Insurance Reports.
(b) MSEM shall maintain relevant insurance policies, including but not
limited to general liability and workers' compensation and sufficient amounts of
insurance coverage to cover any liabilities, claims or damages that may arise
under this Agreement. Such insurance shall be maintained throughout the term of
this Agreement. MSEM agrees that each insurance policy shall: (i) be maintained
with an insurer having a rating of at least an A- in the most currently
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available Best's Insurance Reports; (ii) name AXIA as an additional insured and
additional loss payee, where applicable; and (iii) shall provide for at least
thirty (30) days' prior notice to AXIA in the event of any modification or
cancellation.
13. MISCELLANEOUS.
(a) This Agreement supersedes and cancels any previous agreements or
understandings, whether oral, written or implied, heretofore in effect and sets
forth the entire agreement between the parties with respect to the subject
matter hereof. No amendment, modification or change may be made to this
Agreement except by written instrument duly signed by a duly authorized
representative of each party.
(b) The parties hereto agree to execute and deliver such other documents,
instruments and agreements and to take such other action as may be necessary,
proper or appropriate to carry out the terms of this Agreement.
(1) This Agreement and the rights and obligations hereunder may not be
assigned, delegated or transferred by MSEM or AXIA without the prior
written consent of the other party, which consent will not be unreasonably
withheld. However, MSEM or AXIA shall be permitted to assign its rights and
obligations hereunder to its subsidiaries or affiliates so long as the
assigning party indemnifies the other for any such assignment.
(c) This Agreement shall be governed by and/or construed in accordance with
the laws of the State of California without regards to conflicts of laws
provisions. Both parties agree to submit to the exclusive jurisdiction of the
state and federal courts of the State of California.
(d) All notices given under this Agreement shall be in writing and shall be
addressed to the parties at their respective addresses set forth above to the
attention of the President on behalf of AXIA and MSEM on behalf of MSEM. Either
party may change its address or contact person for purposes of this Agreement by
giving the other party written notice of its new address or contact person.
Notice may be given or made by registered mail or overnight delivery via a
recognized courier, return receipt requested.
(e) The failure of either party to enforce any of its rights hereunder or
at law shall not be deemed a waiver or a continuing waiver of any of its rights
or remedies against the other Party, unless such waiver is in writing and signed
by the party to be charged
(f) Neither party shall be liable in damages, or shall be subject to
termination of this Agreement by the other party, for any delay or default in
performing any obligation hereunder (other than payment obligations) if that
delay or default is due to any cause beyond the reasonable control and without
fault or negligence of that party; provided that, in order to excuse its delay
or default hereunder, a party shall notify the other of the occurrence or the
cause, specifying the nature and particulars thereof and the expected duration
thereof; and provided, further, that within fifteen (15) calendar days after the
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termination of such occurrence or cause, such party shall give notice to the
other party specifying the date of termination thereof. For the purposes of this
Section 14(g), a "cause beyond the reasonable control" of a party shall include,
without limiting the generality of the phrase, any act of God, act of any
government or other authority or statutory undertaking, acts of terrorism,
industrial dispute, fire, explosion, accident, power failure, flood, riot or war
(declared or undeclared).
(g) The headings in this Agreement are solely for convenience of reference
and shall not affect the interpretation of any of the provisions hereof.
(h) If any provision of this Agreement, or part thereof, is declared by a
court of competent jurisdiction to be invalid, void or unenforceable, each and
every other provision, or part thereof, shall nevertheless continue in full
force and effect.
(i) This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(j) In the event a dispute arises regarding this Agreement, the prevailing
Party shall be entitled to its reasonable attorney's fees and expenses incurred
in addition to any other relief to which it is entitled.
(k) The persons executing this Agreement on behalf of the parties hereto
represent and warrant that they have the authority from their respective
governing bodies to enter into this Agreement and to bind their respective
companies to all the terms and conditions of this Agreement.
(l) This Agreement may be executed in several counterparts that together
shall be originals and constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement under
seal as of the date indicated above.
Motorsports Emporium, Inc. AXIA Group, Inc.
By /s/ Xxxxxxx Xxxxx By /s/ Xxxxxxx Xxxxxxxx
--------------------------- ---------------------------
Title President Title CEO
------------------------ ------------------------
IBT, Inc.
By /s/ Xxxxxxx Xxxxxxxx
---------------------------
Title CEO
------------------------
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EXHIBIT A: TERRITORIES
1. EXCLUSIVE TERRITORIES
a. Sri Lanka
2. NONEXCLUSIVE TERRITORIES
a. India
b. Pakistan
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SCHEDULE B: DESCRIPTION OF TECHNOLOGY
The Components of the panel are:
1. A lightweight high tensile treated galvanized steel wire cage.
2. A core of expanded polystyrene
3. Connected and held in place by a logical series of treated galvanized
trusses
4. A coat of Portland cement either gun or manually applied to both
sides.
TECHNICAL DESCRIPTION
The panels consist of vertical, 3" deep No.14 gauge high tensile steel (HTS)
wire trusses spaced at 2"centers with preformed 2 1/4" thick insulative foam
strips between. The assembly is held together with No.14 gauge horizontal wires
on each face at 2" centers welded to the truss chords.
The horizontal wires and vertical truss chords project approximately 3/8" beyond
each polystyrene foam face to permit embedment with a 7/8" (Minimum) thick
concrete finish applied to each face after erection on the site.
The panels are manufactured in 4' widths, 9' lengths and can be cut in
increments of 2". The nominal thickness of the panel wire frame is 3", resulting
in a finished wall thickness, after plastering, of 4" or more.
MATERIAL SPECIFICATIONS
WIRE : No.14 gauge panel wire conforming to ASTM A-82 and U.B.C. Standard 21-10.
POLYSTYRENE BOARD: CLASS 1, in accordance with Section 802.2 and Table 8-A of
the U.B.C. at 1-pound per cubic foot density.
POLYSTYRENE BOARD: CLASS 1, in accordance with Section 802.2 and Table 8-A of
the U.B.C. at 2-pound per cubic foot density.
PORTLAND CEMENT: Complies with ASTM C-150 and U.B.C. Standard No.19-1.
AGGREGATE: Complies with ASTM C 35-70 and C 897.
CONCRETE : A mixture of Portland Cement and aggregate complying with Table 25-=F
of the U.B.C. The concrete must have a minimum 28 day compressive strength of
3,000 psi or greater, as required by design based on testing of three 4" cubes
in accordance with ASTM C 109.
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SCHEDULE D BUSINESS PERFORMANCE
Annual minimum Gross Sales of AXIA will be as follows:
Year One $1,000,000
Year Two $1,500,000
Year Three $1,750,000
Year Four $2,000,000
Year Five $2,200,000
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SCHEDULE E - SUPPLEMENTAL FEE
For each additional country to be added as an Exclusive Territory to this
Agreement, AXIA shall pay MSEM a Supplemental Fee.
The payment shall be based on the following formula
1. Population at the time the license is extended for the country
requested by AXIA
2. divided by 1,000,000
3. times $100,000
Using an example of a country with a population of 40,000,000 the fee would be
calculated as follows:
40,000,000 / 1,000,000 = 40 x $100,000 = $4,000,000 fee
Such fee would be paid as follows:
* $100,000 at the time AXIA nominates the country as an additional
exclusive licensee
* $250,000 upon the Commencement Date in the new territory
* $250,000 upon introduction of Plant
* Balance payable within 24 months from initial payment
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