EXHIBIT 10.25
TRADEMARK LICENSE AGREEMENT
This TRADEMARK LICENSE AGREEMENT (the "Agreement"), is made and entered
into this 28th day of January, 1997 by and between Xxxx Xxxxxx Xxxxxxxxx Inc.,
an Ontario Corporation, doing business as Xxxxx Xxxxxxxxx with offices at 00
Xxxxx Xxxxxx, Xx. Xxxxxxxxxx, Xxxxxxx, X0X 0X0 and with a mailing address at
Xxxx Xxxxxx Xxx 000, Xxxxx Xxxx, XX 00000 (the "Licensor"), and Sel-Leb
Marketing, Inc., a New York corporation with offices at 0000 00xx Xxxxxx, Xxxxx
Xxxxxx, Xxx Xxxxxx 00000 (the "Licensee").
RECITALS
WHEREAS, Licensor is the owner of the trademark "JABOT" which was
registered with the United States Patent and Trademark Office on June 12, 1990,
Registration No. 1600204, and with the Canadian Trademarks office on November
17, 1989, registration No. 363524 for use in connection with perfumes, colognes,
toilet water, talcum powder, bath gel and personal deodorants in International
Class 3 and U.S. Class 51; and,
WHEREAS, Licensor is the owner of the trademark "JABOT FOR THE YOUNG AND
THE RESTLESS GENERATION" which was registered with the Canadian Trademarks
office on November 10, 1989, registration No. 363273 for use in connection with
perfumes, colognes and toilet water; and,
WHEREAS, the Licensor has granted an exclusive license for the trademark
"JABOT" pursuant to an agreement dated June 13, 1996, by and between Licensor
and Direct Access Group, LLC (the "Direct Access Agreement"); and,
WHEREAS, pursuant to the Direct Access Agreement, Licensee was an approved
sub-licensee of Direct Access Group, LLC; and,
WHEREAS, the Licensee is aware that Direct Access Group, LLC had breached
its obligations under the Direct Access Agreement and that said breach is
grounds for terminating the Direct Access Agreement if said breach is not cured;
and,
WHEREAS, Licensee is a manufacturer and distributor of cosmetic
preparations and desires to use the trademarks "JABOT" and "JABOT FOR THE YOUNG
AND THE RESTLESS GENERATION" (hereinafter collectively referred to as, the
"Licensed Marks") in connection with the production, marketing and distribution
of perfumes, colognes, toilet water, talcum powder, bath gel, personal
deodorants and other cosmetic preparations; and
WHEREAS, the Licensor and Licensee have agreed that it is in their mutual
best interest to provide for their legal relationship in the event Direct Access
Group, LLC fails to cure said breach and the Direct Access Agreement is
terminated; and,
WHEREAS, in the event the Direct Access Agreement is terminated by reason
of Direct Access Group, LLC failing to cure its breach thereof, Licensor is
willing to grant Licensee an exclusive license to use the Licensed Marks in the
United States and Canada for such production, marketing and distribution on the
terms and conditions specified herein;
NOW, THEREFORE, in consideration of the forgoing and the mutual covenants
and agreements hereinafter set forth, the parties hereto hereby agree as
follows:
1. DEFINITIONS:
As used in this Agreement, the following terms shall have the
following respective meanings:
(A) As used herein the term "Licensed Territory" shall mean any and
all mass merchandisers, retail stores, catalogue sales, electronic media, direct
response advertising, mail order, telemarketing, and other traditional retail
distribution channels within the United States and Canada and each of their
territories. It is understood that the Licensed Xxxx, "Jabot For The Young and
The Restless Generation"is registered in Canada only and the Licensed Territory
with respect to said Licensed Xxxx is therefore restricted to Canada.
(B) As used herein, the term "Licensed Products" shall mean perfumes,
colognes, toilet water, talcum powder, bath gel, personal deodorants and other
cosmetic preparation included in Trademark International Class 3 and U.S. Class
51.
(C) As used herein, the term "Marketing Date" shall mean March 31,
1997.
(D) As used herein, the term "Net Sales" shall mean the gross invoice
price billed customers, less customary and usual rebates, credits, returns,
freight and insurance charges, value added taxes, sales taxes, and/or other
similar taxes and duties, approved credits, credits allowed for quantity
discounts and returns, and allowances for damaged or defective goods but only to
the extent that such rebates, credits, allowances, returns, and/or taxes are
customary and usual and actually paid or credited by Licensee, with respect to
any customer accounts; provided, however, under no circumstances shall any
returns experienced by Licensee require a net repayment by Licensor to Licensee.
Nothing herein shall be construed to require that any royalty payment or other
compensation be provided to Licensor unless and until Licensee shall have
actually received payment with respect to any units of the Licensed Products
distributed in furtherance of this Agreement. Licensee shall have the right to
distribute without charge, on a royalty-free basis, and not for resale, a
reasonable number of review, promotional and samples of the Licensed Products.
2. GRANT OF LICENSE:
Subject to the terms and conditions hereinafter set forth, Licensor
hereby grants to Licensee and its related and affiliated entities, the exclusive
right and license to utilize the Licensed Marks in connection with the
production, marketing and distribution of the Licensed Products in the Licensed
Territory.
3. TERM:
This Agreement shall be effective as of the date the Guaranteed
Consideration set forth in Section 4(a) is received by the Licensor, however,
the term of this Agreement with respect to Licensed Products referred to above
shall commence on the Marketing Date and shall
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continue, unless sooner terminated as provided for herein, for a period of five
(5) years from the Marketing Date (the "Initial Term").
(A) Licensor may terminate this Agreement if it is not paid at least
ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in royalty payments pursuant to
Section 4 hereof for the period up to and including one (1) year from the
Marketing Date, or during any subsequent year of the Initial Term.
(B) The Initial Term of this Agreement shall be automatically
extended for an additional five (5) year period (the "Additional Term") in the
event Licensor is paid at least ONE HUNDRED AND FIFTY THOUSAND DOLLARS
($150,000.00) in royalty payments pursuant to Section 4 hereof during the period
beginning April 1, 2001 and ending March 31, 2002.
(I) The Licensor shall have the right to terminate this
Agreement if it is not paid at least ONE HUNDRED THOUSAND DOLLARS ($100,000.00)
in royalty payments pursuant to Section 4 hereof during any year of the
Additional Term.
(C) The Additional Term of this Agreement shall be automatically
extended for an additional ten (10) year period (the "Second Additional Term")
in the event Licensor is paid at least THREE HUNDRED THOUSAND DOLLARS
($300,000.00) in royalty payments pursuant to Section 4 hereof during the period
beginning April 1, 2006 and ending March 31, 2007.
(I) The Licensor shall have the right to terminate this
Agreement if it is not paid at least ONE HUNDRED AND FIFTY THOUSAND DOLLARS
($150,000.00) in royalty payments pursuant to Section 4 hereof during any year
of the Second Additional Term.
(D) The Second Additional Term shall be automatically extended for
successive periods of five (5) years each (the "Successive Term" or "Successive
Terms"), unless either party provides written notice to the other, no less than
one hundred and eighty (180) days prior to the expiration of the Second
Additional Term or any Successive Term that it does not wish to further extend
the term of this Agreement.
(E) The extension of the Initial Term, Additional Term, Second
Additional Term, or any Successive Term of this Agreement shall be upon the same
terms and conditions in force and effect hereunder at the time of each such
extension or as otherwise agreed to in writing by the parties.
4. CONSIDERATION:
In full consideration for the rights, licenses and privileges herein
granted to Licensee, Licensee shall pay to Licensor the following royalty
payments:
(A) GUARANTEED CONSIDERATION: For the rights herein granted,
within the five day period following the receipt by the Licensee of a fully
executed Agreement, Licensee shall cause to be paid to Licensor the sum of TEN
THOUSAND DOLLARS ($10,000.00), by United States draft, guaranteed by Licensee's
bank (the "Advance"). The Advance paid by Licensee pursuant to this Section
4(a) shall be applied against such royalties that become due
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to Licensor under Section 4(b) below but shall be non-refundable not-
withstanding any other provision of this Agreement and notwithstanding its
termination for cause.
(B) ROYALTY PAYMENTS: With respect to the Licensed Products,
Licensee shall pay to Licensor royalty fees as follows: (i) on the first TEN
MILLION DOLLARS ($10,000,000.00) of Net Sales under this Agreement, a five (5%)
percent royalty; (ii) on the next FIVE MILLION DOLLARS ($5,000,000.00) of Net
Sales under this Agreement, a four (4%) percent royalty; (iii) on the next FIVE
MILLION DOLLARS ($5,000,000.00) of Net Sales under this Agreement, a three (3%)
percent royalty; (iv) on all remaining Net Sales under this Agreement
thereafter, a two (2%) percent royalty.
(C) ROYALTY REPORTS: Within thirty (30) days following the end of
each calendar quarter after the Marketing Date (in the event Royalties are
generated prior to the Marketing Date, the first Royalty Report due Licensor
shall be delivered within thirty (30) days following the end of the first
calendar quarter of 1997) during the term of this Agreement, Licensee shall
furnish to Licensor complete and accurate statements showing the number of each
Licensed Product sold, the country in which sold or to which shipped,
description and gross sales price, itemized deductions from gross sales price,
and Net Sales derived from the Licensed Products sold by Licensee or any of its
affiliated, associated or subsidiary companies during the preceding calendar
quarter, together with any returns made during the preceding calendar quarter.
Such statements shall be furnished to Licensor whether or not any of the
Licensed Products have been sold during calendar quarters to which such
statements refer. Receipt or acceptance by Licensor of any of the statements
furnished pursuant to this Agreement or of any sums paid hereunder shall not
preclude Licensor from questioning the correctness thereof at any time, and in
the event that any inconsistencies or mistakes are discovered in such statements
or payments, they shall immediately be rectified and the appropriate payments
made by Licensee. Licensee shall be entitled to withhold a reserve for returns,
to be reconciled and liquidated quarterly, equal to ten (10%) percent of the
sales for the quarter being reported. In conjunction with such royalty
statement, Licensee shall pay Licensor the royalties due on account of Net Sales
during the preceding calendar quarter. In the event Licensee overpays royalties
to Licensor in any particular quarter, said overpayment shall be credited to
Licensee in connection with the quarterly report and royalty payment tendered by
Licensee to Licensor in the Quarter immediately following the time at which
Licensee becomes aware of said overpayment. Royalties generated from the sale
of Licensed Products in the United States shall be payable in U.S. Dollars,
likewise, Royalties generated from the sale of Licensed Products in Canada shall
be payable in Canadian Dollars. Royalty Reports shall convert Canadian Dollars
to U.S. Dollars at the average exchange rate for that calendar quarter for the
purpose of calculating Royalties received by Licensor under the sliding scale
percentage basis set forth in Section 4(b).
(I) Royalty payments that are not paid by Licensee to Licensor
within the thirty (30) day period following the end of the calendar quarter in
which said royalties are generated shall bear interest at one percent (1%) above
the Prime Rate of interest of the Royal Bank of Canada.
(II) All accrued royalties which have not yet been paid by
Licensee to Licensor pursuant to this Section 4 ("Accrued Royalties") shall be
held by Licensee, prior to payment thereof, as trust funds for the benefit of
the Licensor only. Accrued Royalties shall be deemed to be impressed as trust
funds for the benefit of the Licensor immediately upon their accrual pursuant to
this Section 4.
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5. RESERVATION OF RIGHTS:
(A) Licensee acknowledges that Licensor retains all rights not
expressly and exclusively conveyed to Licensee hereunder. Further that the
Licensed Marks and all rights therein (with the exception of those rights
expressly granted to Licensee hereunder) and the goodwill pertaining thereto
belong exclusively to Licensor and that all Licensed Products sold by the
licensee pursuant to this Agreement shall carry the Licensed Xxxx(s), notifying
the public that "Xxxxx Xxxxxxxxx, Xxxxx Xxxx, XX 00000" is the owner of the
Xxxx.
(B) Notwithstanding anything contained herein to the contrary,
Licensor expressly agrees that the Licensee is the sole and exclusive owner of
any artistic expression in Licensee's commercial exploitation of the Licensed
Marks during the term of this Agreement in connection with the Licensed Products
("Property Rights"). Nothing contained herein shall be construed as an
assignment to Licensor of any right, title or interest in the Property Rights.
Licensor recognizes the value of the goodwill which shall be developed in
connection with the Licensed Products and the commercial exploitation of the
Licensed Marks. It is understood that the Property Rights attach only to those
Licensed Products actually produced and marketed hereunder, and not to any
products or property rights, including the commercial packaging, copies of which
are on file at the United States Patent and Trademark office, otherwise owned or
exploited by Licensor, and the Property Rights and all rights therein and the
goodwill pertaining thereto belong exclusively to the Licensee.
6. BOOKS AND RECORDS:
(A) Licensee shall keep, maintain and preserve (in Licensee's
principal place of business) for at least two (2) years following termination or
expiration of the term of this Agreement or any renewals or extensions hereof,
complete and accurate records of accounts including, without limitation,
invoices, correspondence, banking and financial, and other records pertaining to
the various items required to be submitted by Licensee. Such records and
accounts shall be made available for inspection and audit by the Licensor at the
offices of the Licensee during normal business hours, upon no less than ten (10)
days notice during the term of this Agreement or any renewal(s) or extensions
hereof, but not more frequently than twice per calendar year. All materials
shall be held in confidence and not used for any purpose except for purposes of
enforcing the terms of this Agreement. Any such inspections or audits shall be
conducted at Licensor s expense unless the audit establishes an underpayment of
five (5%) percent or more for the period subject to audit, in which case the
expense of such audit shall be borne by Licensee. All books and records
maintained by the Licensee pursuant to this Agreement are the sole and exclusive
property of the Licensee and may not at any time be copied or removed from
Licensee's offices.
(B) All Royalty Reports and Royalty Payments tendered by Licensee to
Licensor pursuant to this Agreement shall be deemed accepted by the Licensor if
not disputed, in writing, within one (1) year of their being received by
Licensor.
7. INDEMNIFICATIONS:
(A) Licensor hereby indemnifies and agrees to defend and hold
Licensee and its affiliates and their respective agents, servants, employees,
officers, and directors harmless from and against any and all claims, losses,
damages, liabilities, and associated expenses (including
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reasonable attorneys' fees) arising out of or relating to any claims or suits
that may be brought or made against Licensee arising out of or relating to
Licensor's breach of any provision of this Agreement or its warranties and
representations as set forth in Section 11 hereof, or any claim by a third party
that the "Jabot" Licensed Xxxx infringes the rights of said third party.
(B) Licensee hereby indemnifies and agrees to defend and hold
Licensor and its affiliates and their respective agents, servants, employees,
officers, and directors harmless from and against any and all claims, losses,
damages, liabilities, and associated expenses (including reasonable attorneys'
fees) arising out of or relating to any claims or suits that may be brought or
made against Licensor arising out of or relating to Licensee's breach of any
provision of this Agreement or its warranties and representations as set forth
in Section 11 hereof or any claim by a third party that the "Jabot For The Young
And The Restless Generation" Licensed Xxxx infringes the rights of said third
party.
(C) Licensee agrees to maintain comprehensive general liability
insurance, including contractual and product liability insurance in the amount
of One Million Dollars ($1,000,000.00) per incident and Three Million Dollars
($3,000,000.00) umbrella excess coverage.
(D) The provisions of this Section 7 shall survive the termination of
this Agreement.
(E) The indemnifications provided for herein are conditioned upon the
indemnified party's furnishing the indemnifying party with prompt written notice
of any such claim or suit and upon the indemnified party's furnishing of
reasonable cooperation and witnesses, if necessary, in defense of such claim or
suit. In such event, the indemnifying party shall have the option and right to
undertake and conduct the defense of any such claim or suit.
8. TRADEMARKS:
(A) Licensee agrees that it will not apply for, or seek to obtain
trademark registration for the Licensed Marks.
(B) Licensee agrees that if it receives knowledge of the unauthorized
use of Licensed Marks or of any use confusingly similar thereto, Licensee will
promptly call such fact to the attention of Licensor. Licensor shall then have
the option to institute legal proceedings to prevent such use, and Licensee
shall cooperate and assist, and, if requested by Licensor, join in the
prosection of any such action. Any such legal proceedings shall be the sole
expense of Licensor. If Licensee is joined in such proceeding, Licensor shall
indemnify and hold harmless Licensee from and against any claim, sanction,
liability, damages, attorney s fees, judgments, or orders of any kind arising
out of such proceeding.
9. QUALITY OF LICENSED PRODUCTS:
(A) Licensee agrees that the Licensed Products shall be of high
standard and of such style, appearance and quality as shall be adequate and
suitable to their promotion, distribution and sale to the best advantage of
Licensee and Licensor. Licensee shall furnish to Licensor, free of cost, a
sample of each such product together with its cartons and containers, including
packaging and wrapping material.
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(B) Subject to the terms hereof, Licensee may utilize the Licensed
Marks for such advertising, promotional and display materials for the Licensed
Products as in its judgment will best promote the sale of said Licensed
Products. A reasonable number of production copies of all such advertising,
promotional and display materials will be furnished to Licensor free of
charge.
10. DISTRIBUTION; SUBLICENSE/MANUFACTURE:
(A) The Licensee shall sell the Licensed Products either to jobbers,
wholesalers, distributors, retailers, or by direct marketing for sale or resale
and distribution directly to the public. If Licensee sells or distributes the
Licensed Products at a special price, directly or indirectly, to itself
including, without limitation, any subsidiary of the Licensee or to any other
person, firm or corporation affiliated with the Licensee or its officers,
directors or major stockholders, for ultimate sale to unrelated third parties,
the Licensee shall pay royalties with respect to such sales or distribution as
set forth in Section 4(b), which royalties shall be calculated based upon the
greater of the gross invoice price at which the Licensee sells, directly or
indirectly, to itself or to such subsidiary or affiliated entity, or the gross
invoice price at which such subsidiary or affiliated entity sells to a third
party.
(B) Licensee shall be prohibited from sublicensing any of its rights
under this Agreement. However, in the event Licensee is not the manufacturer of
the Licensed Products, Licensee shall be entitled to utilize a third party
manufacturer in connection with the manufacture and production of the Licensed
Products. In such event, Licensee shall remain primarily obligated under all of
the provisions of this Agreement. In no event shall any such sub-contract
manufacture agreement include the right to grant any further subcontracts on the
part of the subcontractee.
11. WARRANTIES AND REPRESENTATIONS:
(A) Each party represents to the other party, respectively, that:
(I) it is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization;
(II) it has full power and authority to execute and deliver
this Agreement, and to perform its obligations hereunder; and,
(III) this Agreement constitutes a valid and legally binding
obligation of it, enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and general
equity principals.
(B) Licensor represents and warrants to Licensee that:
(I) It has registered the licensed xxxx "JABOT" in Canada and
the United States and registered the Licensed Xxxx "JABOT FOR THE YOUNG AND
RESTLESS GENERATION" in Canada only. It shall be the Licensor's responsibility
to renew the registrations of the Licensed Marks over the duration of this
Agreement and to file the appropriate registered user agreements for use by the
Licensee pursuant to the terms of this Agreement to reasonably ensure the
continued validity of the Licensed Marks. Should the Licensee require any
further maintenance of the
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Licensed Marks, Licensee may do so at its own expense upon Licensor's consent,
which consent shall not be unreasonably withheld or delayed. Any such
maintenance precludes any third party claim(s) for which the Licensee has been
indemnified in Section 7(a);
(II) It has, and will have throughout the term of this
Agreement, the right to license the Licensed Xxxx "JABOT" in accordance with the
terms and provisions of this Agreement. Licensor has, as of the date hereof,
the right to license the Licensed Xxxx "JABOT FOR THE YOUNG AND THE RESTLESS
GENERATION" in accordance with the terms and provisions of this Agreement.
Further, in the case of the Licensed Xxxx, "JABOT FOR THE YOUNG AND THE RESTLESS
GENERATION" the warranty does not extend beyond the territorial limits of
Canada; and,
(III) The making of this Agreement by Licensor does not violate
any agreements, rights or obligations existing between Licensor and any other
person, firm or corporation.
(C) Licensee represents and warrants to Licensor that:
(I) Licensee acknowledges that Licensor does not provide any
warranty with respect to the Licensed Xxxx, "Jabot For The Young And The
Restless Generation," but for reasonably ensuring its continued validity and
registration with the Canadian Trademarks Office. Therefore, any use of the
Licensed Xxxx "Jabot For The Young And The Restless Generation" shall be at the
Licensee's own risk.
(II) The making of this Agreement by Licensee does not violate
any agreements, rights or obligations existing between Licensee and any other
person, firm or corporation.
(D) The provisions of this Section 11 shall survive termination of
this Agreement.
12. SPECIFIC UNDERTAKING OF LICENSEE:
During the term and any renewal or extension period herein provided
for, Licensee agrees that:
(A) it will not harm, misuse or bring into disrepute the Licensed
Marks or their reputation or that of their owners;
(B) it will manufacture, sell and distribute the Licensed Products in
an ethical manner and in accordance with the terms and intent of this Agreement;
(C) it will not incur or create any expenses chargeable to Licensor;
(D) it will protect to the best of its ability its right to
manufacture, sell and distribute the Licensed Products hereunder;
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(E) it will comply with all laws and regulations pertaining to the
manufacture, sale, advertising or use of the Licensed Products and shall
maintain the highest quality and standards, and shall comply with any regulatory
agencies which shall have jurisdiction over the Licensed Products; and,
(F) it will use its reasonable best efforts to manufacture,
distribute and sell the Licensed Products throughout the Territory.
13. TERMINATION BY LICENSOR:
(A) Licensor shall have the right to terminate this Agreement without
prejudice to any rights that it may have hereunder, whether in law, or in
equity, or otherwise, upon the occurrence of any one or more of the following
events (herein called "Defaults"):
(I) If Licensee defaults in the performance of any of its
material obligations provided for in this Agreement;
(II) If Licensee shall have failed to maintain in full force
and effect the insurance referred to in Section 7 hereof;
(III) If Licensee breaches this Agreement by failing to make
any payment due hereunder on the date due and fails to cure such breach within
thirty (30) days of its receipt of written notice by Licensor;
(IV) If Licensee breaches this Agreement by failing to deliver
any of the statements or records referred to herein or to give access to the
premises and/or its records to Licensor's authorized representatives for the
purposes permitted hereunder, and Licensee fails to cure such breach within
thirty (30) days after its receipt of written notice by Licensor;
(V) If Licensee shall become insolvent or unable to pay its
debts when due, or shall make any assignment for the benefit of creditors, or
shall file any petition under the bankruptcy or insolvency laws of any nation,
jurisdiction, county or place, or shall have a receiver or trustee appointed for
its business or property, or be adjudicated a bankrupt or an insolvent;
(VI) In the event that Licensee does not commence in good
faith to manufacture, distribute and sell Licensed Products throughout the
Territory on or before the Marketing Date specified in Subclause 1(c);
(B) In the event any of these defaults occur, Licensor shall give
notice of termination in writing to Licensee by certified mail. The Licensee
shall have thirty 30 days after receipt of such notice in which to correct any
of these defaults, and if such defaults remain uncured upon the expiration of
the thirty (30) day period, this Agreement shall terminate, and any and all
payments then or later due from Licensee hereunder (including Guaranteed
Consideration) shall be due and payable within sixty (60) days of termination,
and no portion of prior payments shall be refunded to Licensee.
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14. SELL-OFF PERIOD:
Licensee shall deliver, as soon as practicable, to Licensor, following
expiration (pursuant to Section 3) or termination (pursuant to Section 13), a
statement indicating the number and description of Licensed Products on hand or
in the process of manufacture at the time notice of termination is received by
Licensee or at the time of expiration of this Agreement. Following expiration or
termination, Licensee may continue to manufacture its goods in the process of
manufacture, but may manufacture no more Licensed Products in association with
the Licensed Marks; Licensee may continue to distribute and sell its remaining
inventory and goods in the process of manufacture for a period not to exceed ten
(10) months following such termination or expiration, subject to the provisions
of Section 4 above. Thereafter, neither Licensee (directly or indirectly) or
any subsidiary, person, firm, or corporation affiliated with Licensee or its
officers and directors, shall make any use of the Licensed Marks whatsoever, or
any marks confusingly similar thereto, or in any manner associated with either
of the Licensed Marks, either in or on products, advertising, publicity,
promotional or display materials in commerce.
15. PAYMENTS AND NOTICES:
All notices hereunder (a) shall be in writing, (b) shall be forwarded
by hand delivery, ordinary first-class or certified or registered U.S. or
Canadian mail (postage prepaid), by Federal Express or other nationally
recognized overnight courier service, (c) shall be addressed to the recipient at
its address as specified below (or in the case of a change, as shall have been
specified by the recipient in a notice given hereunder), and (d) shall be
effective on receipt. The applicable addresses with respect to such notices,
and the addresses for accounting payments and statements, are as follows:
IF TO LICENSOR: IF TO LICENSEE:
Xxxx Xxxxxx Xxxxxxxxx Inc. Sel-Leb Marketing, Inc.
00 Xxxxx Xxxxxx 0000 00xx Xxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx X0X 0X0 Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx XxXxxxx Attention: Xxx Xxxxxx
WITH A COPY TO: WITH A COPY TO:
Chown Cairns Xxxxxxxxx Roshco & Xxxxxxx
00 Xxxx Xxxxxx 000 Xxxxx Xxxxxx - 18th Floor
0xx Xxxxx Xxxxxxx Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxx 000 Attention: Xxxx X. Xxxxxxxxx, Esq.
St. Catharines, Ontario
L2R 6Y8
Attention: Xxxx Xxxxxx, Esq.
16. CONFIDENTIALITY:
Each party agrees that, without the express consent of the other
party, none of its employees or agents shall disclose to any other party, or use
for any purpose other than the performance of this Agreement, any tangible or
intangible information or material that the other party
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designates as confidential (including without limitation the terms and
conditions of this Agreement, and the content of any source code, object code or
technical documentation relating to the Licensed Products) unless such
information or material, (a) is or becomes publicly known through no wrongful
act of the receiving party; (b) is received from a third party without
restriction and without breach of any confidentiality obligation to the other
party; (c) is independently developed by the receiving party; or (d) is required
by law to be disclosed (provided that the other party is given advance notice of
and an opportunity to contest any such requirement).
17. NO PARTNERSHIP:
This Agreement does not constitute and shall not be construed as
constituting a partnership or joint venture between Licensor and Licensee.
Neither party shall have any right to obligate or bind the other party in any
manner whatsoever, and nothing herein contained shall give, or is intended to
give, any rights of any kind to any third persons.
18. NON-ASSIGNABILITY:
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, provided, that this
Agreement may not be assigned in whole or in part by Licensee, except to an
affiliate of Licensee (as defined and promulgated under the Securities and
Exchange Act of 1934, as amended) or to any other entity that succeeds to the
business of Licensee associated with the Licensed Products other than by
operation of law, such as by sale of assets without the express prior written
consent of Licensor, which consent shall not be unreasonably withheld.
19. GOVERNING LAW:
This Agreement shall be construed in accordance with the laws of the
State of New York of the United States of America, excluding any conflict of
laws rules of said State which would have the affect of applying the laws of any
other jurisdiction.
20. ENTIRE AGREEMENT, WAIVER, MODIFICATION:
This agreement represents the entire agreement between the parties
hereto pertaining to the subject matter hereof, and supersedes all prior oral
and written negotiations and agreements. No waiver, modification or
cancellation of any terms or condition of this Agreement shall be effective
unless executed in writing by the party to be charged therewith. No written
waiver shall excuse the performance of any act other than those specifically
referred to therein.
21. SEVERABILITY:
Should any provision of this Agreement for any reason be declared
invalid or unenforceable, such declaration shall not affect the validity or
enforceability of any other provision of this Agreement, all of which other
provisions shall remain in full force and effect, and the application of such
invalid or unenforceable provision to persons or circumstances other than those
as to which it is held invalid or unenforceable shall be valid and be enforced
to the fullest extent permitted by law.
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22. SURVIVAL:
The respective representations and warranties of the parties set forth
herein and the provisions hereof regarding confidentiality, indemnification,
accounting and payment of royalties, audit rights and ownership of intellectual
property shall survive any expiration or termination of this Agreement, together
with any monetary obligations accrued but as yet unpaid as of the time of such
expiration or termination.
23. CURRENCY:
All amounts payable to Licensor pursuant to this Agreement, or
referred to in this Agreement, are in U.S. Dollars unless otherwise specifically
stated herein.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement by their
duly authorized representatives as of the day and year first above written.
LICENSOR: Xxxx Xxxxxx Xxxxxxxxx Inc.
LICENSEE: Sel-Leb Marketing, Inc.
/s/ Xxxxx XxXxxxx /s/ Xxx Xxxxxx
-------------------------- ---------------------------------
By: Xxxxx XxXxxxx By: Xxx Xxxxxx, Exec. Vice Pres.
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