DATED THIS 9th DAY OF December 1998
BETWEEN
EVERBLOOM HEALTH FOOD PTE LTD
AND
MYCOCEUTICALS LTD
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LICENCE AGREEMENT
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Table of Contents
NO. CLAUSE PAGE
1. Definitions and interpretations ..................................... 2
2. Grant .............................................................. 3
3. Term ............................................................... 4
4. Consideration ...................................................... 4
5. Undertakings and indemnity by the licensee........................... 5
6. Exclusion of liabilities ........................................... 7
7. Force Majeure ...................................................... 7
8. Copyrights, patents, trademarks and intellectual property rights..... 8
9. Confidential information ............................................ 8
10. Termination ......................................................... 8
11. Relationship of the licensee to the licensor ....................... 9
12. Waiver .............................................................. 9
13. Assignment .......................................................... 9
14. Notices ............................................................. 9
15. Entire agreement .................................................... 10
16. Severability ........................................................ 10
17. Governing law ...................................................... 10
Schedule of products................................................. 12
THIS LICENCE AGREEMENT is made the 9th day of December 1998
BY AND BETWEEN:-
1. EVERBLOOM HEALTH FOOD PTE LTD, a company incorporated in the Republic
of Singapore and having its registered office at 0 Xxxxxxx Xxxx Xxxxxxx
0, Xxx Xxxxx Xxxx, Xxxxxxxxx 000000 (hereinafter referred to as the
"Licensor" which expression shall include all or any of its successors
and assigns) of the one part; and
2. MYCOCEUTICALS LTD , a company incorporated in U.K. and having its
registered office at Xxxxxx House, Carnegie Campus, Xxxxxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxx, XX00 0XX, Xxxxxxxx (hereinafter referred to as the
"Licensee") of the e other part.
WHEREAS: -
(A) The Licensor is the owner and is in possession of the Proprietary Marks
(as hereinafter defined) and the Know-how/Technology (as hereinafter
defined).
(B) The Licensee is desirous of obtaining, and the Licensor is desirous of
granting to the Licensee, the sole right to use, and the right to
sublicence the Proprietary Marks and the Know-how/Technology for the
manufacturing, production, marketing and/or sale of the Products, upon
the terms and subject to the conditions as hereinafter set out.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
1. DEFINITIONS AND INTERPRETATIONS
1.1 In this Agreement, unless the context otherwise requires, the following
words and expressions shall have the following meanings as ascribed to
them:-
"this Agreement" shall mean this
Agreement as the same may be
varied, amended, supplemented or
otherwise modified from time to
time with the agreement of the
parties hereto in writing.
"Confidential Information" shall mean all
information (whether written or
verbal) in and relating to the
Documentation,
Know-how/Technology and all other
information furnished by the
Licensor to the Licensee relating
to the business and trade secrets
of the Licensor, but shall
exclude the following
information.:-
(a) information which is or
becomes available to the
public through no fault of
the party receiving such
information; and
(b) information which is
subsequently received by
any party from any third
party.
"Documentation" shall mean all drawings,
specifications, manuals and any
other applicable media and
documentation relating to the
Know-how/Technology or its usage
thereof including all materials
useful for design (for example,
logic manuals, flow charts and
principles of operation) and
machine-readable text or graphic
files subject to display or
printout, and all advertising,
promotional, commercial and
publicity pamphlets, brochures,
leaflets and other materials
whatsoever relating to the Products.
"Know-how/Technology" shall mean all information,
documentation and data including
formulae, recipes, designs,
specifications, techniques,
manufacturing process and
procedures, plans, discoveries
and inventions (whether patented
or not) as used at any time in
the manufacturing, production,
marketing and sale of the
Products.
"Proprietary Marks" shall mean the trade marks, trade names,
logos, designs, symbols, emblems,
insignia, fascia, slogans and other
identifying marks whether or not
registered or capable of registration
now or at any time hereafter adopted
by the Licensor for use in connection
with any Product and/or the Know-how/
Technology.
"Products" shall mean the products listed in the Schedule hereto.
1.2 Reference herein to Clauses and Schedules are to clauses in and
schedules to this Agreement unless the context requires otherwise and
the Schedules to this Agreement shall be deemed to form part of this
Agreement.
1.3 The headings are inserted for convenience only and shall not affect
the construction of this Agreement.
1.4 Unless the context requires otherwise, words importing the singular
include the plural and vice versa and words importing a gender include
every gender.
2. GRANT
2.1 Subject to the consideration set out in Clause 4 below and the terms
and conditions of this Agreement, the Licensor hereby grants to the
Licensee, and the Licensee hereby accepts a sole, personal , perpetual,
non-transferable and non-exclusive licence to use, and the right to
sublicence, the Proprietary marks and the Know-how/Technology for the e
manufacturing , production, marketing and/or sale of the Products (the
"Rights") Provided That the Licensee shall not use nor permit the use
of any of the Proprietary Xxxx as part of its corporate name without
the express prior written consent of the Licensor.
2.2 The Rights granted to the Licensee pursuant to this Agreement shall
extend to the U.K. and in the European Union.
2.3 All rights of the Licensee shall be restricted to such rights as are
expressly and specifically set out in this Agreement and where any
right is not so expressly and specifically provided in this Agreement,
it shall be deemed to be excluded.
2.4 Upon the executive hereof, the licensor shall deliver to the Licensee
one (1) copy of the Documentation as the Licensor shall deem to be
necessary for the purpose contemplated under this Agreement and to
ensure Licensee's compliance with the terms herein.
3. TERM
This Agreement and the grant of the Rights hereunder shall take effect
on the date of this Agreement ("the Commencement Date") and shall
continue unless otherwise terminated in accordance with the provisions
herein.
4. CONSIDERATION
4.1 In consideration of the grant by the Licensor to the Licensee of the
Rights, the Licensee shall allot and issue to the Licensor three
hundred thousand (300,000) ordinary shares of Sterling Pound One
((pound)1.00) each, fully paid up, in the licensee (the
"Consideration"), upon the execution of this Agreement.
4.2 In the event that the Licensee fails to satisfy the Consideration or
any part thereof or any other sum payable under this Agreement by the
due date thereof (the "Unpaid Amount"), in addition to the Unpaid
mount, the Licensee shall be liable to pay interest at the rate of one
point five percent (1.5%) per month on such Unpaid Amount. Such
interest shall be calculated on a daily basis and shall accrue from and
including the due date until the date of actual receipt in full by the
Licensor of the Unpaid Amount together with al interest accruing
thereon under this Agreement.
4.3 In the event of a default in any payment for a period of thirty (30)
days, the Licensor may at its sole discretion (But shall not be obliged
to), without prejudice to any rights (including but not limited to
right to payment) and remedies which the Licensor may have whether
under this Agreement and/or under law, revoke this Agreement and the
Rights granted hereunder forthwith. Upon such revocation, the Licensor
may repossess all copies of the documentation, data, records or
information relating to the Rights. For such purpose, the Licensor or
any one or more of its agents or authorised representatives shall be
entitled at any time and without notice to enter upon any premises in
which the same are or are reasonably believed by the Licensor, to be
kept, stored or used.
4.4 All payments due and payable by the Licensee to the Licensor under this
Agreement shall be payable without any restriction, condition,
counterclaim or set-off and shall be nett and exclusive of any
deduction or withholding on account of any taxes including any
withholding tax, good and services tax, custom taxes and any other
charges which may be imposed by any authority from time to time, all of
which shall be borne and payable by the Licensee over and above such
payments.
5. UNDERTAKINGS AND INDEMNITY BY THE LICENSEE
5.1 The Licensee irrevocably and unconditionally undertakes and agrees with
the Licensor that it will, at all times during the continuance of this
Agreement and, where applicable , following termination hereof, observe
and perform the terms and conditions set out in this Agreement and in
particular, the following covenants and undertakings:-
(a) that it will exercise the Rights solely and exclusively for
the purpose as set out in Clause 2.1 hereof and in accordance
with the terms and conditions of this Agreement;
(b) that, during the term of this Agreement and for a period of
five (5) years after the termination hereof, it will not, save
with the prior written consent of the Licensor, be concerned
or interested either directly or indirectly in the production,
cultivation, importation, sale, licensing, marketing,
promotion or advertisement of any product similar to or in
competition with the Products or any of them, in any part of
the world;
(c) that it will forthwith notify the Licensor of each
sub-licence entered into by it with any third party and
provide the Licensor with a copy of such sub-licensing
agreement and such other information as the Licensor may
require in connection therewith;
(d) that it will not make any copy, enhancement, addition,
adaptation, reproduction, translation, compilation, variation
or otherwise modify the Documentation or the Process whether
in whole or in part, in any manner whatsoever.
(e) that it will manufacture, produce, market and sell the
Products using solely and exclusively the Know-how/Technology
and in accordance with the Documentation and will not to sell
any Product which does not conform to or which conflicts with
the standards associated with the Proprietary Marks or the
Know-how/Technology;
(f) that it will ensure that all correspondences and other
dealings with any third party relating directly or indirectly
to the Rights clearly indicate and make known that it is
merely a Licensee and not as author or developer of the
Rights;
(g) that it will clearly display (i) all copyrights and other
intellectual property rights notices on all documentation
relating to the Proprietary Marks and the Knowhow/Technology
and (ii) all relevant Proprietary Marks on each of the
Products, without adding, altering, obscuring, removing,
interfering with or otherwise modifying in any manner
whatsoever any of the trademarks, trade names, markings,
copyright notices or other notices affixed to or contained in
such documentation or Product (as the case may be);
(h) that it will use the Proprietary Marks solely and exclusively
in connection with the Products and will not use the
Proprietary Marks in any manner that the Licensor deems to be
illegal, vulgar, in bad taste or inconsistent with the
reputation or image of the Licensor;
(I) that it will forthwith modify or cease the use of such
Proprietary Xxxx as the Licensor may instruct in writing;
(j) that it will not incur any liability on behalf of the Licensor
or in any way pledge or purport to pledge the Licensor's
credit, goodwill or reputation or purport to make any contract
binding upon the Licensor;
(k) that it will supervise and control the use of the Rights or
such part thereof by its employees, staff, servants,
representatives, agents and licensees/sub-licensees and ensue
that such use shall be in accordance with the terms and
conditions of this Agreement;
(l) that it will permit any duly authorised representative of the
Licensor upon reasonable prior notice to enter into any of its
premises where any manufacturing, production, marketing and/or
sale of the Products or any of them is carried out, for the
purpose of ascertaining that the provisions of this Agreement
are being compiled with by the Licensee;
(m) that it will immediately bring to the attention of the
Licensor any improper or wrongful use of the Licensor's
trademarks, emblems, designs, models or other similar
industrial, intellectual or commercial property rights which
comes to the notice of the Licensee and will in the e
performance of its duties under this Agreement use every
effort to safeguard such property rights and interests of the
Licensor and will at the request and cost of the Licensor take
all steps required by the Licensor to defend such rights;
(n) that it will only use such advertising, promotional ,
commercial and publicity pamphlets, brochures, leaflets and
other materials in relation to the Products as are approved by
the licensor;
(o) that it will promptly bring to the attention of the Licensor
any information received by the Licensee which is likely to be
of interest, use or benefit to the Licensor in relation to the
manufacturing , production, marketing or sale of the Products
or any of them; an d
(p) that it will within fourteen (14) days from the termination of
this Agreement or the discontinuance of the licence hereunder,
return or destroy in accordance with th einstructions of the
Licensor, all Documentation and material relating to the
Rights and all copies, in whole or in part, in any form
including any partial copies or modification thereof, and
(where so required by the Licensor) to furnish to the Licensor
with a certificate, certifying that the same has been done.
5.2 The Licensee hereby undertakes and agrees to operate and maintain
proper accounting procedures in accordance with generally accepted
accounting principles and keep at its registered office true and
accurate records, account books and data (the "Business Records") which
shall accurately reflect all particulars relating to its business and
other business.
5.3 The Licensee shall furnish the Business Records to the Licensor on the
licensor's request.
5.4 The Licensee hereby agrees to indemnify and keep indemnified the
licensee from and against all costs, expenses, losses, actions, suits,
proceedings, damages and other liabilities of whatsoever nature
(including but not limited to personal injuries and liabilities arising
from person injuries) arising from or in connection with (a) any breach
by the Licensee of any of its obligations hereunder; and/or (b) any
Product sold, manufactured or otherwise provided by the Licensee, its
employees, agents or sublicensee which is sold, manufactured or
otherwise provided in contravention of or contrary to the Know-how
Technology or the manner prescribed or approved by the Licensor.
6. EXCLUSION OF LIABILITIES
6.1 THE LICENSEE HEREBY IRREVOCABLY AND UNCONDITIONALLY ACKNOWLEDGES AND
AGREES THAT THE LICENSOR DOES NOT MAKE ANY REPRESENTATION OR WARRANTY
IN RESPECT OF THE PROPRIETARY MARKS OR ANY OF THEM OR THE
KNOW-HOW/TECHNOLOGY OR ANY PART THEREOF AND ALL WARRANTIES WHETHER
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OR MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY
EXCLUDED (EXCEPT TO THE EXTENT THAT SUCH LIABILITY MAY NOT LAWFULLY BE
EXCLUDED IN AN AGREEMENT OF THIS NATURE).
6.2 THE LICENSEE FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY
ACKNOWLEDGES AND AGREES THAT THE LICENSOR SHALL HAVE NO LIABILITY
WHATSOEVER WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE OR OTHERWISE FOR
DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT
LIMITED TO LOST PROFITS) INCURRED OR THAT MAY BE INCURRED BY THE
LICENSEE OR ANY THIRD PARTY, EVEN IF THE LICENSOR HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
6.3 NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THE TRANSACTIONS UNDER
THIS AGREEMENT, MAY BE BROUGHT BY THE LICENSEE MORE THAN ONE (1) YEAR
AFTER THE CAUSE OF ACTION HAS ACCRUED. IN THE EVENT THAT, BUT STRICTLY
WITHOUT PREJUDICE TO CLAUSES 6.1 AND 6.2 ABOVE, THE LICENSOR SHALL BE
HELD LIABLE FOR WHATEVER REASON, THE LICENSEE HEREBY ACKNOWLEDGES AND
AGREES THAT THE TOTAL LIABILITIES OF THE LICENSOR SHALL NOT IN ANY
EVENT EXCEED SINGAPORE DOLLARS ONE MILLION (s$1,000,000.00).
7. FORCE MAJEURE
Not withstanding any other provisions to the contrary hereof, the
Licensor shall be under no liability to the Licensee or to any other
party in any way whatsoever for any breach of its obligations or for
any destruction, damage, delay or any other matters of any nature
whatsoever which is caused by any act beyond the control of the
Licensor including without limitation any matter arising out of war,
rebellion, civil commotion , strikes, lock-outs and industrial
disputes; fire, explosion, earthquake, act of God, flood, drought or
bad weather; the unavailability of deliveries, supplies, equipment,
disks or telephone communication lines or any other media or the
requisitioning or other act or order by any government department,
council or other constituted body.
8. COPYRIGHTS, PATENTS, TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS
8.1 The Licensee acknowledges that the Documentation, Proprietary Marks and
the Knowhow/Technology and all intellectual and proprietary rights
thereto are and shall remain the sole and exclusive property of the
Licensor and the Licensee shall not during or at any time after the
termination of this Agreement in any way question or dispute the
ownership or any other such rights by the Licensor.
8.2 The Licensee also acknowledges that Rights are only granted to the
Licensee with the consent of the Licensor and for use during the
continuation of and in accordance with this Agreement. Upon termination
hereof the Licensee shall forthwith discontinue such use.
9. CONFIDENTIAL INFORMATION
9.1 The Licensee hereby acknowledges that all Confidential information was
or will be prepared at considerable trouble, time and expense and is
disclosed to the other party in strictest confidence under this
Agreement. The Licensee hereby irrevocably and unconditionally
undertakes and agrees to protect the confidential and proprietary
nature of the Confidential Information from disclosure to third
parties, that is shall use the Confidential Information exclusively for
the purpose of this Agreement, and that it will only disclose the
Confidential Information only to those of its employees and
sublicensees in so far as such disclosure is necessary for the purpose
of this Agreement or the sublicence (as the case may be). The Licensee
shall use great care in the selection and assignment of personnel to
work with the Confidential Information and will instruct all personnel
so assigned to take all precautions necessary to prevent unauthorised
disclosures.
9.2 The Licensee shall obtain from its employees and sublicensees to whom
it discloses the Confidential Information or any part thereof duly
binding agreements to maintain in confidence the Confidential
Information to be disclosed at least to the same extent as the Licensee
is so bound hereunder.
9.3 The obligations of the Licensee under this Clause 9 shall survive
the termination of this Agreement for any reason whatsoever.
10. TERMINATION
10.1 The Licensor shall be entitled to terminate this Agreement:-
(a) upon giving fourteen (14) days' written notice to the Licensee
in the event that the Licensee shall breach any provision,
undertaking, covenant or agreement contained herein (other
than with respect to payment) and fails to rectify such
default (if capable of being remedied) within the period of
the aforesaid notice;
(b) forthwith upon written notice to the Licensee in the event
that the Licensee shall default in any payment under this
Agreement for a period of fourteen (14) days; and
(c) forthwith if the Licensee transfers and/or assigns any of
the Rights, its other rights and/or obligations to any third
party in contravention of Clause 13 hereof.
10.2 Notwithstanding any provisions herein contained, this Agreement shall
be terminated forthwith in th e event of the liquidation or winding-up
or filing of a petition of winding-up, by or against, or the
appointment of a receiver or manager or judicial manager of the assets
of either party or any action comparable to the foregoing under the
laws of the Republic of Singapore.
10.3 The termination of this Agreement shall be without prejudice to the
rights of the Licensor accrued up to the date of such termination
including but not limited to the Licensor's right to the payments set
out in Clause 4 hereof and interest thereon under this Agreement.
10.4 Notwithstanding the termination of this Agreement for any reason,
whatsoever, the provisions of Clause 4, Clause 5.1 (insofar as
applicable), Clause 6, Clause 8, Clause 9 and this Clause 10.4 shall
survive and be continuing obligations of the relevant parties hereto.
11. RELATIONSHIP OF THE LICENSEE TO THE LICENSOR
It is hereby acknowledged and agreed that the Licensee is not the
agent, employee, partner, associate or representative of the Licensor
and has no authority or power to make any representation or warranty or
undertaking on behalf of or bind or contract in the name of or to
create any liability against, the Licensor in any way for any purpose
whatsoever.
12. WAIVER
Any failure or neglect by any party to enforce at any time of the
provisions hereof shall not be construed nor shall be deemed to be a
waiver of the such party's rights hereunder nor in any affect the
validity of the whole or any part of this Agreement nor prejudice the
such party's rights to take subsequent action.
13. ASSIGNMENT
13.1 This Agreement shall enure to the benefit of the Licensor, its
successors and assigns.
13.2 The Licensee shall not transfer its obligations or liabilities nor
assign the Rights or its other rights interest or benefits under this
Agreement, whether voluntarily or involuntarily or by operation of law,
in whole or in part, to any third party without the prior written
consent of the Licensor. Any transfer or assignment in contravention of
this Clause shall be null and void and have no effect whatsoever. No
permitted assignment by the Licensee howsoever occurring shall relieve
the Licensor of its obligations hereunder.
14. NOTICES
All notices, demand, requests or other communications which any party
to this Agreement may desire or be required to give hereunder shall be
in the English language and shall be deemed to have been given if
mailed or hand-delivered at the address of the other party first set
out above in this Agreement, or at such address as any party may from
time to time designate in writing and shall be deemed effective upon
delivery (if sent by hand) or one (1) day after sending (if sent by
mail). Notice may also be sent by telefax or telex and shall be
effective on the day of sending provided that the appropriate answer
backs are received.
15. ENTIRE AGREEMENT
This Agreement and any agreements referred to herein including the
Annexure hereto are intended to and do constitute the entire agreement
among the parties and supersede all prior oral or written agreements or
understandings of the parties with regard to the subject matter hereof
and thereof. Except as herein provided, no variation , interpretation,
change, termination, or waiver of any provision hereof shall be binding
upon a party unless in writing and executed by the parties to be bound
thereby. No waiver, termination, rescission, discharge or cancellation
of any right or claim under this Agreement shall affect the right of
any party hereto to enforce any other claim or right hereunder.
16. SEVERABILITY
In the event that any or any part of the terms, conditions or
provisions contained in this Agreement shall be determined to be
invalid, unlawful or unenforceable to any extent such term, condition
or provision or the offending part thereof (insofar as it is
practicable) shall be severed from the remaining terms and conditions
which shall continue to be valid and enforceable to the fullest extent
permitted by law.
17. GOVERNING LAW
This Agreement shall be construed in accordance with the substantive
laws of the Republic of Singapore. All disputes arising out of or in
connection with this Agreement (including but not limited to any
question regarding its existence, validity or termination) which cannot
be settled amicably shall be referred to the exclusive jurisdiction of
the Singapore International Arbitration Centre to be heard by a panel
of arbitrators in accordance with the rules of arbitration of said
centre. Such arbitration shall take place in the Republic of Singapore
and shall be conducted in English. The panel shall consist of three (3)
arbitrators, one (1) to be chosen by the Licensor, one (1) to be chosen
by the Licensee and the third to be mutually agreed upon by the
parties. In the event that the parties are unable to agree, such third
arbitrator shall be of Singapore nationality but shall otherwise be
chosen by the Singapore International Arbitration Centre. The decision
of the arbitrators so appointed hereunder shall be final and binding on
the parties hereto.
IN WITNESS WHEREOF the parties hereto have executed this Agreement on the date
above written.
Signed for and on behalf of )
EVERBLOOM HEALTH FOOD PTE LTD )
in presence of :- )
Signed for and on behalf of )
MYCOCEUTICALS LTD )
in presence of:- )
Diskette: EIT File: EHF-ML Date: 5/12/98
