LICENSE AGREEMENT
Between
Bermuda Roof Company, Inc.
0000 X. Xxxxxxxx Xxxx Xxxx, Xxx. 000
Xxxx Xxxxx, Xxxxxxx 00000
And
Premix-Marbletite Mfg. Co.
0000 X. X. 00xx. Xxxxxx
Xxxxxxx Xxxxx, XX. 00000
Table Of Contents
1.0 Parties To The Agreement........... .............................1
2.0 Purpose And Scope Of The Agreement.................................2
3.0 Definitions........................................................2
3.1 "Product".................................................2
3.2 "Intellectual Property"...................................2
3.3 "Product Technology"......................................2
4.0 Grant Of Right And License.........................................2
4.1 Scope of License..........................................2
4.2 Territory.................................................2
4.3 Right To Grant Licenses and Sub-License...................2
4.4 Right Of Assignment.......................................3
5.0 Intellectual Property...............................................3
5.1 Ownership Of Intellectual Property........................3
5.2 Proprietary Marks.........................................3
5.2.1 Use of Proprietary Marks.........................3
5.2.2 Use of Prefix and Suffix.........................4
5.2.3 Prior Written Consent............................4
5.2.4 Manner of Use....................................4
5.3 Infringement..............................................4
5.4 Notice....................................................4
5.5 Documents.................................................5
5.6 Trade Secrets and Confidentiality.........................5
6.0 Consideration......................................................5
6.1 By Licensor...............................................5
6.1.1 Product Technology...............................5
6.1.2 Research Data....................................5
6.1.3 Promotional Assistance...........................6
6.1.4 Industry Associations............................6
6.1.5 Customer Contact.................................6
6.1.6 Government Approvals.............................6
6.1.7 Exclusivity......................................7
6.2 By Licensee...............................................7
6.2.1 Initial Licensing Fee............................7
6.2.2 Unit Licensing Fees..............................7
6.2.3 Resource Maintenance.............................8
6.2.4 Technical Assistance.............................8
6.2.5 Product Quality..................................8
6.2.6 Manufacturing Equipment..........................9
6.2.7 Government Licenses..............................9
6.2.8 Licensee Conduct.................................9
6.3 Audit.....................................................9
6.4 Currency.................................................10
6.5 Delinquency..............................................10
7.0 Term and Termination..............................................10
7.1 Term Of Agreement........................................10
7.2 Termination For Cause....................................10
7.2.1 Bankruptcy......................................10
7.2.2 Violation of Law................................11
7.2.3 Inability to Perform............................11
7.2.4 Breach of Agreement.............................11
7.2.5 Notice of Default and Failure to Cure...........11
7.3 Intellectual Property After Termination..................12
7.4 Reservation of Rights....................................12
7.5 Survival of Obligations..................................12
8.0 Limitation of Liabilities.........................................12
8.1 Exclusion of Consequential Damages, Etc..................12
9.0 General...........................................................12
' 9.1 Entire Agreement.........................................12
9.2 Governing Law and Venue..................................13
9.3 Severability.............................................13
9.4 Notice...................................................13
9.5 Amendment and Waiver.....................................14
9.6 Indemnification..........................................14
9.7 Independent Contractor...................................14
9.8 Excusable Delay..........................................15
9.9 No Representation........................................15
9.10 Section Headings.........................................15
9.11 Successors and Assigns...................................15
9.12 Counterparts.............................................16
9.13 Attorneys' Fees..........................................16
10.0 Representations and Warranties....................................16
10.1 Title and Authority To Sell..............................16
10.2 Litigation...............................................16
10.3 Maintenance..............................................16
10.4 Patenting................................................17
10.5 Infringement.............................................17
10.6 Warranty Date............................................17
10.7 Code Approval............................................17
Schedule "A" ..............................................................18
LICENSE AGREEMENT
Date of Agreement: August 8, 1994
1.0 PARTIES TO THE AGREEMENT
This is a License Agreement ("Agreement") between BERMUDA ROOF
COMPANY, INC., a Florida Corporation having its principal place of business at
0000 Xxxx Xxxxxxxx Xxxx Xxxx Xxxxx 000, Xxxx Xxxxx, Xxxxxxx 00000 (hereinafter
referred to as "Licensor"), and PREMIX-MARBLETITE MANUFACTURING CO., a Florida
Corporation, having its principal place of business at 0000 Xxxxxxxxx 00xx.
Xxxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000 (hereinafter referred to as "Licensee").
WITNESSETH:
WHEREAS, Licensor has expended substantial sums of money in developing the
"Tile-Tite(TM) (hereinafter the Product); and WHEREAS; Licensor has created
substantial goodwill for said Product and is the sole and exclusive owner of
all proprietary, intellectual property, and other property rights of the
Product, including trademark, rights to patent pending, and the unique
formulation of the Product; and
WHEREAS, Licensee is desirous of obtaining the advantages and benefits of a
license to the product and Licensor's substantial technical support in respect
to the Product, and Licensee has applied for rights to operate as a licensed
manufacturer; and WHEREAS, Licensor is willing to grant such rights subject to
the terms and conditions hereinafter set forth;
NOW, THEREFORE, for the consideration set forth herein, Licensor and Licensee
hereby agree as follows:
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2.0 PURPOSE AND SCOPE OF THE AGREEMENT
This Agreement sets forth the terms and conditions under which
Licensor grants to Licensee, its successors and assigns, certain
rights and license to the Product, Intellectual Property, and Product
Technology identified and defined below under the Section entitled
"Definitions".
3.0 Definitions
3.1 "Product" shall mean an air-entraining; premixed; bagged;
lightweight roof tile mortar as further described in U.S.
Patent application S.N. 08/209.942
3.2 "Intellectual Property" shall mean the pending U.S. Patent
application S.N. 08/209.942 and any patent which issues
thereon; any copyrighted material related to the Product or
to the Product Technology; the "Tile-Tite" trademark; and any
other Licensor trademark, service xxxx, trade name, trade
symbol, device, sign and color scheme and combinations
thereof which Licensor at its sole discretion may thereafter
designate.
3.3 "Product Technology" shall mean all data, information and
know-how relating to the manufacture of the Product as
furnished by the Licensor to the Licensee, whether currently
existing or developed in the future.
4.0 Grant of Right and License
4.1 Scope of License
Licensor hereby grants to Licensee, an exclusive,
non-transferable right, license, lease and privilege to the
Product, Intellectual Property and Product Technology under
the conditions and within the geographic territory set forth
herein.
4.2 Territory
The territory for which rights are granted to Licensee is
Florida, the Caribbean and the Bahamas.
4.3 Right to Grant License and Sub-Licenses
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The right and license granted to the Licensee to
manufacture and distribute the Product exclusively
within the State of Florida, the Caribbean and the
Bahamas shall not include the right of the Licensee
to license, or sub-license, any third parties to do
any, some or all of the manufacturing. Without
limiting the foregoing, Licensee may distribute the
Product through third parties and use private
labeling.
The Licensor retains the right, at its sole
discretion, to grant a license to the Intellectual
Property and/or the Product Technology to third
parties outside the State of florida, the Caribbean
and the Bahamas.
4.4 Right of Assignment
Licensee may not assign its license.
Licensor may not assign this Agreement or all or any
part of its rights hereunder.
5.0 Intellectual Property
Licensee agrees that each and every provision of this
Agreement is reasonable and necessary for Licensor to protect
Licensor's Intellectual Property and Product Technology and
the goodwill associated therewith.
5.1 Ownership of Intellectual Property
Licensor retains the sole ownership and rights to
the Intellectual Property. Licensee acquires no
right, title or interest in the trademarks, service
marks, patents or patent applications, or other
intellectual property of Licensor except as
expressly provided by this Agreement. Licensee
agrees that its use of all Intellectual Property of
the Licensor is governed by this Agreement and that
upon termination all use of Licensor's Intellectual
Property by the Licensee shall terminate.
5.2 Proprietary Marks
5.2.1 Use of Proprietary Marks
Licensee shall not, without Licensor's
express written permission, use Licensor's
proprietary marks as part of Licensee's
corporate or other Legal name, nor hold out
or otherwise employ Licensor's proprietary
marks to perform any activity or to incur
any obligation or indebtedness, in such
manner as could reasonably result in making
Licensor liable therefor.
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5.2.2 Use of Prefix and Suffix
Licensor's proprietary marks shall not be
used in combination with a prefix or
suffix.
5.2.3 Prior Written Consent
Licensor's proprietary marks shall not be
used by Licensee without Licensor's prior
written consent, other than in the ordinary
course of business in accordance with the
terms of the Agreement.
5.2.4 Manner of Use
Licensor's proprietary marks shall be used
solely in the manner prescribed by Licensor
and all such usage, other than in the
ordinary course of business in accordance
with the terms of the Agreement, shall
inure to the exclusive benefit of Licensor.
5.3 Infringement
Licensee shall notify Licensor immediately of any
infringement of Licensor's Intellectual Property by
any third party of which Licensee becomes aware, or
of any challenge by third party to Licensee's use of
Licensor's Intellectual Property or Product
Technology. Licensor shall immediately use his best
efforts to cause all third parties to cease and
desist from continuing such infringement.
Licensee will cooperate fully with Licensor in any
course of action provided such course of action does
not impair the rights of, or cause liability to
Licensee, which Licensor may take in regard to any
third party infringement, or any challenge by a
third party to Licensee's use of Licensor's
Intellectual Property or Product Technology.
Licensee may take steps to prevent unauthorized
reproduction, exhibits, or distribution of product.
5.4. Notice
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Licensee shall observe all legal requirements with
respect to the Intellectual Property, including the
placement of proper copyright, trademark, or patent
notice on goods manufactured by Licensee which use
Licensor's Intellectual Property.
5.5 Documents
Licensee shall execute all documents reasonably
requested by Licensor, that are necessary to obtain
protection for Licensor's Intellectual Property or
to maintain their continued validity or
enforceability and to take no action that would
jeopardize the validity or enforceability thereof.
5.6 Trade Secrets and Confidentiality
Licensee agrees that the Product Technology and the
pending patent application are valuable trade
secrets of Licensor. Licensee agrees to receive and
maintain Licensor's Product Technology in trust and
confidence, use the same only in furtherance of this
Agreement, and not disclose the same to any third
party except as shall be reasonably required for the
promotion and use of the Product. Licensee agrees to
treat the Product Technology as confidential and use
all reasonable efforts to maintain such information
as secret and confidential.
Licensee agrees not to copy, duplicate, record or
otherwise reproduce materials related to the Product
Technology for use in the roofing industry in whole
or part without the express written permission of
Licensor.
6.0 Consideration
6.1 By Licensor
6.1.1 Product Technology
Licensor will provide Product Technology
to Licensee.
6.1.2 Research Data
Licensor will provide Licensee with any
research data which may be developed by
Licensor.
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6.1.3 Promotional Assistance
Licensor will provide Licensee with
promotional assistance in respect to the
Product, such assistance may include advice
and/or participation in preparation of
sales literature, direct mail or actions
toward aiding the Licensee in promoting the
Product.
Marketing and Distribution Policies
Licensor agrees that Licensee shall have
sole, full and complete discretion
concerning the manufacture, distribution,
marketing and exploitation of the Product.
Licensee and Licensor agree to exchange
information on a periodic basis as to
market changes and distribution
opportunities and to mutually consult on
any major changes to be made that may
affect marketing and distribution in the
Licensee's exclusive territory.
Advertising
Licensor, at Licensee's request, agrees to
deliver to Licensee any and all
advertising, exploitation and promotion
materials concerning the Product available
to Licensor and within Licensor's control.
6.1.4 Industry Associations
Licensor will maintain memberships in
appropriate industry associations related
to tiling and potential use of the Product,
such as FR&SMA, GCBA, BASF, etc.
6.1.5 Customer Contact
Licensor will make personal calls on
architects, builders and owners as
requested by Licensee to assist Licensee in
obtaining adequate market share. Reasonable
travel expenses of Licensor will be paid by
Licensee provided such travel is authorized
by Licensee.
6.1.6 Government Approvals
Licensor will maintain close contact with
code bodies and code officials to expedite
proper approval status of the Product.
Licensor agrees to use his best efforts to
obtain, and maintain, at his expense, code
approval for the Product in all territories
where Licensee may sell the product.
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Licensor shall continue to use his best
efforts to obtain patent approval.
6.1.7 Exclusivity
Licensor shall notify in writing all other
licensees of Licensor of Licensee's
exclusive territory and shall require that
other licensee's of Licensor refrain from
selling in Licensee's territory. In the
event other licensee's violate Licensee's
territorial exclusivity, Licensor after
thirty (30) days written notice to the
offending Licensee shall terminate said
licensee's License Agreement if the
violation has not ceased.
6.2 By Licensee
In consideration of the rights and license granted
by Licensor to Licensee in this Agreement, Licensee
agrees to pay to Licensor the royalties specified in
this Section.
6.2.1 Initial Licensing Fees
Licensee hereby agrees to pay Licensor a
licensing fee covering exclusive rights to
manufacture and market the Product in the
State of Florida, the Caribbean and the
Bahamas in the amount of $50,000.000. One
half of this license fee or $25,000.00 is
to be paid upon execution of this Agreement
and when Dade County Code approval is
issued, and is non-refundable. The balance
of the initial license fee or $25,000.00 is
to be paid as a portion of the unit license
fee, as described below, until fully paid.
6.2.2 Unit Licensing Fees
Licensee hereby agrees to pay Licensor a
unit license fee of $0.50 for each forty
(40) pound unit of Product sold each month
of which $0.10 per bag will go toward
payment of the $25,000.00 balance of the
initial licensee fee above. After the sale
of 250,000 bags of Product and payment of
all unit fees due to Licensor, the unit
licensing fee will be reduced to $0.40 per
bag for the balance of the Term of the
Agreement and each renewal period. Unit
licensing fee payments to the Licensor will
be made within twenty (20) days after the
close of each calender month with a summary
showing basis for determining the amount of
such payment.
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6.2.3 Resource Maintenance
Licensee agrees to use its best efforts to
promote the use of the Product and the
goodwill of Licensor by all reasonable
means including, but not limited to,
employing competent personnel, maintaining
sufficient facilities, adequate financial
resources and insurance coverage. Licensor
agrees that all such decisions hall be made
in the sole and exclusive discretion of
Licensee. Licensee agrees to provide to
Licensor a certificate of Insurance showing
coverage including worker's compensation;
comprehensive general public liability of
at least Five Hundred Thousand Dollars
($500,000); automobile liability of at
least One Hundred Thousand Dollars
($100,000) for injuries, including death,
to any one person; Three Hundred Thousand
Dollars ($300,000) for any occurrence
involving two or more persons; and, Three
Hundred Thousand Dollars ($300,000)for all
property damages caused by a vehicle.
Licensee further agrees to name Licensor as
an additional insured under its
comprehensive general public liability
coverage.
6.2.4 Technical Assistance
Licensee agrees to provide technical
assistance to architects, engineers,
general contractors, and others who may be
in a position to specify the use of the
Product.
6.2.5 Product Quality
Licensee agrees to produce the Products the
Product in accordance with Licensor's
quality standards, specifications and
procedures. Licensor and Licensee agree
that the Product formulas as set forth in
Schedule A attached hereto may be adjusted
as deemed necessary due to code
requirements or due to new and improved
developments as deemed necessary by both
Licensor and Licensee.
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6.2.6 Manufacturing Equipment
Licensee agrees to acquire and maintain in
proper working condition all equipment
necessary to properly manufacture the
Product, in Licensee' sole and exclusive
discretion.
6.2.7 Government Licenses
Licensee agrees to obtain at Licensee's
expense any and all licenses, permits and
bonds necessary for the operation of
Licensee's business. Licensee agrees to
comply with all applicable requirements of
all federal, state and local laws,
regulations and building codes. Licensee
will not be responsible for costs incurred
to obtain code approvals.
6.2.8 Licensee Conduct
Licensee agrees not to engage in any trade
practice or other activity which
constitutes deceptive or unfair competition
or is in violation of any particular trade
regulation or law.
Licensee agrees not to make any
representation, whether written or oral,
regarding the Product, except as may be
specifically set forth and in accordance
with the promotional literature and other
materials provided by Licensor.
6.3 Audit
Licensee shall maintain complete and accurate
accounting records, in accordance with sound
accounting practices, to support and document unit
licensing fees payable in connection with the
Product. Such records shall be maintained for a
period of at least one (1) year after the unit
licensing fees to which such records relate have
accrued and been paid. Licensee shall, upon written
request, during normal business hours, but not more
frequently than once each calendar year, provide
access to such records to an independent accounting
firm chosen and compensated by Licensor, for
purposes of audit.
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If after sixty (60) days from the close of the
Licensee's fiscal year, a written request for an
audit has not been received by Licensee, Licensor
accepts the accounting summary of the license fees
as true and correct.
6.4 Currency
All payments pursuant to this Agreement shall be in
United States Dollars and collection of any foreign
or affiliated accounts shall be on the same basis as
domestic accounts with the rate of exchange at the
time of collection to govern.
6.5 Delinquency
If any required unit licensing fees payments are
delinquent, or if any inspection or audit should
reveal that such payments have been materially
understated in any report to Licensor, the Licensee
shall, after a thirty (30) day opportunity for
Licensee to verify the alleged understatement, pay
to Licensor the amount overdue or understated upon
demand, in addition to interest from the date such
amount was originally due until paid, at an interest
rate of ten (10) percent per year.
7.0 Term And Termination
7.1 Term of Agreement
This agreement shall become effective on the first
day it is executed by both parties. Unless sooner
terminated in accordance with the terms of this
Agreement as set forth hereunder, this Agreements
shall remain in force for five years from the date
formula is delivered to Licensee and production
first commences. Licensee shall have the option of
renewing this Agreement for an additional two (2)
terms of five (5) years each, on the same terms and
conditions.
7.2 Termination for Cause
Licensee acknowledges that the occurrence of any of
the following events shall constitute good cause for
Licensor, at its sole discretion, and without
prejudice to any other of Licensor's rights or
remedies provided for hereunder or by law in equity
to terminate this Agreement.
7.2.1 Bankruptcy
If Licensee is adjudicated bankrupt, has a
receiver (permanent or temporary) appointed
by a court of competent authority for its
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property or any substantial part thereof,
makes a general assignment for the benefit
of creditors, allows a final judgement in
excess of $250,000 against it to remain
unsatisfied of record for thirty (30) days
or longer or (unless a supersedeas bond is
filed), has any execution levied against
Licensee's business or property in an
amount in excess of $250,000 or defaults in
the performance of any material term,
condition or obligation of payment of
indebtedness to Licensor and said default
is not cured within thirty (30) days of
Licensee's receipt of written notice from
Licensor.
7.2.2 Violation of Law
If Licensee commits a material violation of
any law, ordinance, rule or regulation of a
government agency in connection with the
operation of the license granted hereunder
and permits the same to go uncorrected
after notification thereof.
7.2.3 Inability to Perform
If events occur which materially and
adversely affect Licensee's ability to
carry out its obligations hereunder.
7.2.4 Breach of Agreement
If Licensee defaults in the performance or
observance of any material term, condition,
provision, covenant or agreement to be
observed or performed by Licensee
hereunder, and Licensee fails to cure such
violation withing thirty (30) days after
written notice from Licensor.
7.2.5 Notice of Default and Failure to Cure
In the event of breach or default by either
party of an obligation under this
Agreement, the other party, shall give the
defaulting party thirty (30) days written
notice of its intention to terminate this
Agreement, and unless the defaulting party
within said thirty (30) days period shall
remedy the default, this Agreement shall
forthwith terminate.
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In the event either party waives the right
to terminate due to breach of any provision
of this Agreement by the other party, such
waiver shall not be considered as a
continuing waiver of any breach of any
other provision of the Agreement.
7.3 Intellectual Property After Termination
The termination of this Agreement shall not affect
any obligation of the Licensee to maintain the
confidentiality of Licensor's Product Technology and
Intellectual Property. Upon termination of this
Agreement, Licensee shall cease using Licensor's
Product Technology and intellectual Property, return
to Licensor or destroy in accordance with Licensor's
instructions all written or tangible matter
describing Product Technology in the possession of
or under the direct or indirect control of Licensee,
take down and remove all signs and other indicia of
association with Licensor hereunder and shall
otherwise cease exercise of the rights and
privileges conferred by this Agreement.
7.4 Reservation of Rights
In the event of termination or expiration of this
Agreement, in accordance with the terms contained
herein, all licenses granted to the Licensee to use
the Intellectual Property and Product Technology
shall terminate with this Agreement.
7.5 Survival of Obligations
Termination of this Agreement shall not affect the
obligation of either party to the other which may be
due or unpaid at the date of termination, nor shall
the same prejudice any other rights under this
Agreement.
8.0 Limitation of Liabilities
8.1 Exclusion of Consequential Damages, Etc.
In no event shall either party be liable to the
other for any consequential, indirect, special, or
incidental damages resulting from breach of this
Agreement, even if such party has been advised of
the possibility of such potential loss or damage.
9.0 General
9.1 Entire Agreement
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The provisions of this Agreement and the other
written documents attached to or delivered in
connection with this Agreement constitute the entire
agreement between the parties and supersede all
prior agreements, oral or written, and all other
communications relating to the subject matter hereof
and thereof. Neither Licensor nor Licensee shall be
bound by or liable for any alleged representation,
promise, or inducement, express or implied, relating
to the transaction contemplated by this Agreement
and not set forth within this Agreement.
9.2 Governing Law and Venue
The validity, construction, and performance of this
Agreement will be governed by the substantive law of
the State of Florida. Licensee agrees that any
litigation, administrative adjudication, arbitration
or other proceeding concerning this Agreement shall
come under the jurisdiction and venue of the
appropriate court, governmental agency or forum in
the State of Florida.
9.3 Severability
If any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable
or contrary to law, the remaining provisions of this
Agreement will remain in full force and effect. The
termination, unenforceability or rejection of any
provision shall have no effect on the validity and
uneforceability of all other provisions.
9.4 Notice
All communications, required or permitted to be
given hereunder, relating to any substantive issue
of this Agreement, including, but not limited to,
notices, requests, demands, other communications,
third party licenses and/or license agreements, and
termination shall be deemed to have been duly given
if made in writing and 1) delivered personally, 20
delivered by telegram, 3) delivered by first class
mail, registered or certified mail postage prepaid
to:
Licensor Address:
Bermuda Roof company, Inc.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX. 33486
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Licensee Address:
Premix-Marbletite Manufacturing Company
0000 Xxxxxxxxx 00xx. Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxxx, President
Either party may designate a new address notifying
the other party in writing, and following receipt of
such notice all written notices required under this
Agreement shall be directed to the new address.
9.5 Amendment and Waiver
No amendment or modification of this Agreement shall
be effective unless it is set forth in a writing
which refers to the particular provision and
instrument so amended or modified and is executed by
authorized representatives of both parties.
9.6 Indemnification
Each party ("the indemnitor") will, at its own
expense, defend, indemnify, and hold harmless the
other party ("the indemnitee") , from any claims,
expenses (including reasonable attorneys fees) , and
liabilities sustained or suffered by the indemnitee
relating to a breach of any of the covenants,
representations or warranties by the indemnitor
contained in this Agreement, or in the exercise or
attempted exercise of any of the rights, license or
privileges herein granted to the indemnitee. The
indemnitee may compromise or settle such claim or an
action based thereon upon such terms as it may deem
reasonable, subject to the prior consent of the
indemnitor which consent shall not be unreasonably
withheld.
9.7 Independent Contractor
Licensee shall act as and shall be in its relations
with Licensor for the purposes of this Agreement as
an independent contractor. This agreement does not
in any way create an agency relationship between
Licensor and Licensee, and under no circumstances
shall Licensee be considered an agent or servant of
Licensor.
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Licensee shall not act, attempt to act or represent
itself, directly or by implication, as an agent or
servant of Licensor as defined by law, or in any
manner assume or create or attempt to assume or
crate any obligation on behalf of or in the name of
Licensor. Licensee understands and agrees that this
Agreement does not create a fiduciary relationship,
that Licensee shall be an independent contractor and
that nothing in this Agreement is intended to
constitute either party as an agent, legal
representative, subsidiary, joint venturer, partner,
employee, or servant of the other for any purpose
whatsoever. Licensee agrees to identify itself in
its promotional literature and otherwise by the
phrase "Tile-Tite(TM) Licensee", and where required
"Manufactured by Premix-Marbletite Manufacturing
Co., under license from Bermuda Roof Company, Inc."
9.8 Excusable Delay
Each party shall be excused for failures and delays
in performance of the obligations of each party to
be performed hereunder when due to delays of
suppliers, production problems, acts of God or the
public enemy, compliance with any particular foreign
or domestic court order or government regulation,
order or request, whether or not it proves to be
invalid, fire, riots, labor disputes, unusually
severe weather, or any other causes, similar or
dissimilar, beyond the reasonable control of the
party affected, except that Licensee shall not be
excused for failure or delay in making payment of
money to be made hereunder.
9.9 No Representation
Licensee hereby acknowledges that Licensor makes no
representations, warranties, or guarantees, express
or implied, as to the potential volume, profits or
success of the licensed business.
9.10 Section Headings
The section headings contained herein are for
reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
9.11 Successors and Assigns
All the terms and conditions of this Agreement shall
be binding upon, inure to the benefit of, and be
enforceable by the parties hereto and all successors
and assigns of Licensee which were approved in
writing by licensor, and Licensor's successor's and
assigns.
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9.12 Counterparts
This Agreement may be executed simultaneously in two
(2) or more counterparts, each of which shall be
deemed an original, but all of which together shall
constitute one and the same instrument.
9.13 Attorneys' Fees
In the event it becomes necessary for any party to
this Agreement to enforce its rights hereunder
through any administrative, arbitration or other
legal proceeding, then, in such event, the
prevailing party shall be entitled to recover
reasonable attorneys' fees and costs in such
proceedings through all appeals.
10.0 Representations And Warranties
10.1 Title and Authority to Sell
Licensor warrants that Licensor has full and
marketable title to the Intellectual Property and
Product Technology. Licensor warrants that there are
no existing encumbrances on Licensor's ability to
grant the License defined by this Agreement.
Licensor further warrants that Licensor has full
right, power, and authority to execute, deliver and
perform this Agreement.
10.2 Litigation
Licensor warrants that Licensor has no knowledge of
any arbitration, investigation, governmental,
administrative, court or other proceeding which
would encumber Licensor's ability to perform under
this Agreement. Licensor further warrants that
Licensor is not aware of any arbitration,
investigation, governmental, administrative, court o
other proceeding which would adversely affect the
validity or enforceability of the Intellectual
Property.
10.3 Maintenance
Licensor warrants that during the term of this
Agreement, Licensor will pay any maintenance fees
required by the U.S. Patent & Trademark Office for
any patents which may issue, as the come due, to
ensure that the patent does not expire for
non-payment of maintenance fees.
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10.4 Patenting
Licensor warrants that it shall pay all costs to
prosecute the patent application to issuance or
rejection of the patent application by the U.S.
Patent Office, including any appeals.
10.5 Infringement
Licensor warrants that to the best of its knowledge
the Product, Intellectual Property, Product
Technology and this Agreement do not infringe on any
currently existing patent.
10.6 Warranty Date
The representations and warranties of this Agreement
are made as of the Execution Date and cover all
conduct of the parties and those persons signing on
behalf of the parties.
10.7 Code Approval
Licensor warrants that it has filed an application
for code approval with Dade County and Licensee is
relying on the receipt of that approval to enter
into this Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed the
Agreement as of the date first above written.
(Licensor) (Licensee)
By: /S/ X. X. Xxxxxxxxx By: /S/ Xxxx X. Xxxxxx
----------------------------- ------------------------------
X. X. Xxxxxxxxx, President Xxxx X. Xxxxxx, President
Witness: Witness:
/S/ Xxxxxx X. Xxxxx, Xx. /S/ /S/ Xxxxxx X. Xxxxx, Xx /S/
----------------------------- ---------------------------------
/S/ Xxxxx Xxxxxxx /S/ /S/ Xxxxx Xxxxxxx /S/
----------------------------- ---------------------------------
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