INTELLECTUAL PROPERTY LICENSING AND REVENUE SHARING DISTRI BUTION AGREEMENT This Intellectual Property Licensing Revenue Sharing Distribution Agreement ("Agreement") is entered into this 14th day of March, 2004, by and between ORBIT BRANDS...

EX-10.43 11 orbit1043exhibit2003.htm MALIBU LICENSING AGREEMENT

                  INTELLECTUAL PROPERTY LICENSING AND REVENUE
                         SHARING DISTRI BUTION AGREEMENT

This Intellectual Property Licensing Revenue Sharing Distribution Agreement
("Agreement") is entered into this 14th day of March, 2004, by and between ORBIT
BRANDS CORPORTATION f/k/a Orbit Xxxxxx.xxx, Corporation, Itrex Corporation
("Itrex") both located at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx, 00000, and Malibu Beach Beverage Group LLC, and ("Group"), whose
address is 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000.

RECITALS

1. Orbit and Itrex are in the business of developing, providing and operating
   services, websites, computerized databases, marketing and communications
   systems within the consumer products industry that provide third parties
   remote access to on-line computerized information. Orbit and Itrex are also
   in the Consumer Products industry.
2. Group maintains a business, which develops, manufactures and distributes
   beverage product under the Malibu Beach Beverage name.
3. The parties desire to establish a relationship in which Orbit licenses
   certain intellectual property, uses the sales / marketing and distribution
   capabilities, utilizes product research and development capacity and use of
   back office billing, administrative and production systems of Malibu Beach
   Beverage Group LLC.

   Group agrees to actively promote and market all ancillary products
   ("Products"), developed by Orbit. Currently contemplated products include
   products ranging from flavored juice mixers, water, sports drinks, lip
   balms, lotions and waxes and candles. Group shall provide all accounting,
   general, administrative, production, logistics, sales and distribution
   services to Orbit Brands for an agreed to fee basis to be separately
   negotiated between the parties. Orbit will be responsible for the research
   efforts needed to create the brand extension products at their expense.
   Additionally, Orbit will indemnify Group to any and all claims which may
   rise concerning brand extension products.


AGREEMENTS

4. Content Development and Distribution: Commencing upon the execution of this
   Agreement, and continuing throughout the term, Group shall officially
   endorse Orbit / Itrex as it's non-exclusive provider of content. For the
   purposes of this agreement, "Content" shall mean text, database files,
   images, video, audio and other related data, products, services,
   advertisements, and promotions.

        a. Home Page Promotion: Immediately following the execution of this
           agreement, Group shall promote Orbit brand extension "products" on the
           Internet home page of xxx.xxxxxxxxx.xxx. This home page promotion




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           shall consist of an animated button (gif) image, text link or other
           graphic representation to be mutually agreed upon by the parties. The
           button shall contain a message mutually agreed upon by the parties and
           shall remain a fixed presence on Group' s home page from the date of
           implementation throughout the term of this agreement. Group will
           establish a hyperlink from the Button to a page on Group's website
           related to the message displayed on the Button.

        b. Additional Beverage and Ancillary Related Product: Orbit shall have
           the right to develop products promoting the Malibu Lifestyle, lip
           balm, lotions, candles etc...which will be sold and distributed by
           Group.

        c. Use of Promotions for Media Coverage: Orbit / Itrex shall have the
           right to make use of this agreement in Orbit / Itrex's website, media
           and sales kits, trade advertising and/or otherwise mutually agreed to,
           subject to Group's right to pre-approve any use of its logo, editorial
           or trademarks in Orbit / Itrex's print materials, product packaging
           and advertising. As soon as practicable, the parties shall issue a
           joint press release approved by each party to the industry press,
           announcing the substance of this agreement and Group's official
           relationship for the value added development of products and delivery
           of services with and on behalf of Orbit / Itrex.

        d. xxx.xxxxxxxxx.xxx: Upon execution of this agreement, and continuing
           throughout the term hereof, Group shall include a text link or other
           graphic representation mutually agreed upon by the parties in the
           Group website. The message set forth in such link shall inform the
           user that all ancillary products by brand extension are provided by
           Orbit / Itrex.

5. In consideration for the development, sales, distribution, and general
   administrative duties undertaken by Group and the use of Group's logo,
   trademarks and intellectual property pursuant to this agreement, Orbit /
   Itrex hereby agrees to the following:

        a. Within (30) days following the execution of this agreement, Orbit /
           Itrex shall issue to Group $100,000 in cash and $290,000 in the form
           of a convertible promissory note, shares in Orbit / Itrex common
           stock, at .015 conversion per share. When so issued, the Orbit / Itrex
           note and shares shall be considered fully paid and non-assessable, and
           shall be represented by a certificate or certificates in genuine form,
           duly endorsed in blank or accompanied by duly executed stock powers
           endorsed in blank, with requisite stock transfer stamps if any,
           attached. An additional $100,000 of cash will be paid as a remainder
           of payment due from section 5a herein to Group.

        b. In addition to the fees specified in Section 5(a) above, Orbit / Itrex
           will pay Group on a monthly basis, fees related to development,




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           promotions, sales expense, distribution expense, back office services
           and logistics expense in proportion to the volume of said work being
           performed. All work will be mutually agreed to prior to start and will
           be completed as defined in a statement of work or work order.
           Orbit/Itrex shall remit payment to Group for said fees and expenses
           within 10(ten) days of invoicing from Group.

        c. Orbit / Itrex agrees to pay Group a royalty on all gross revenue of
           20% for all gross revenue recognized by Orbit / Itrex.

        d. Commencing upon the execution of this Agreement, and continuing
           throughout its term, Group shall endorse Orbit / Itrex on its website
           and Group shall endorse Orbit / Itrex as its licensee for brand
           extension product and promotional services.

6. Intellectual Property Ownership: Both parties understand and agree that,
   notwithstanding any licenses or other rights granted elsewhere herein, any
   and all rights associated with the Malibu brand, logo or trademarks and
   related intellectual property provided by Group shall remain the sole
   property of Group. All other related intellectual property associated with
   Group is and shall remain the property of Group.

7. Term of the Agreement: This agreement shall become effective upon the date
   set forth above and shall remain in effect for (10) ten years.

8. Confidential Information: Both parties acknowledge that they may come into
   possession of the others Confidential Information, which is any information
   not generally known in the trade or industry which was obtained from the
   other party, or which was discovered or prepared during or as a result of
   performance hereunder and which falls within the following general
   categories: (i) information relating to trade secrets; (ii) information
   relating to existing or contemplated products, services, technology,
   designs, business processes and research or development; (iii) information
   relating to business plans, sales, or marketing methods, methods of doing
   business, customer lists, customer usages, and/or requirements, and
   supplier information; (iv) information relating to proprietary software or
   processes not know to the general public; and (v) any other confidential
   information the parties may wish to protect by patent, copyright or by
   keeping such information secret and confidential.

   The parties agree to hold in the strictest confidence and to not divulge to
   anyone, at any time during or after the termination of this agreement, any
   of the other's Confidential Information, and not to use such information
   for either parties' personal benefit, for the direct or indirect benefit of
   any other person, firm, corporation, or entity without the prior written
   consent of the other party.




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9. Limitation of Liability: With the exception of stipulations pursuant to
   section 3. in no event shall either party or any of its directors,
   officers, employees, agents, affiliates, successors or assigns be liable
   for any lost profits or special or consequential damages sustained by
   either party arising from this agreement, even if either party has been
   advised or is otherwise aware of the possibility of such damages. Both
   parties further disclaim any and all liability for the accuracy or
   inaccuracy of any information transmitted online.

10.General Provisions:

        a. Notices: Any notice of communication required under this agreement to
           be made to either party shall be typewritten in English and shall be
           considered delivered when personally delivered, delivered by
           registered Mail with confirmed receipt (postage prepaid) or delivered
           by overnight courier to the address of the party as set forth above.

        b. Title and Captions: All section headings or captions in this agreement
           are for convenience only. They shall not be deemed a part of this
           agreement and in no way define, limit, extend or describe the scope or
           intent of any of its provisions

        c. No Assignment: Orbit / Itrex may not assign this agreement to any
           third party without first obtaining the written consent of Group
           therefore.

        d. Bankruptcy: Either partie's insolvency, receivership, bankruptcy, or
           assignment for the benefit of creditors will immediately terminate
           this agreement without further notice.

        e. No Partnership or Joint Venture: this agreement is not intended to ,
           and shall not for any reason be deemed to create a partnership, Joint
           Venture or similar relationship between the parties.

        f. Invalid Provisions: If any provision or provisions of this agreement
           are held to be invalid, and unenforceable, the remaining provisions
           thereof shall continue to be valid and enforceable in writing

        g. Entire Agreement: This agreement contains the entire agreement between
           the parties with respect to the subject matter hereof, and no waiver,
           alteration, or modification of any of its provisions hall be binding
           unless agreed to and executed by both parties in writing.

        h. Construction: This agreement shall be governed, construed and enforced
           according to the laws of the State of Delaware.




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        i. Force Majeure: Neither party shall be liable to the other by reason of
           any failure to perform under this agreement if such failure arises out
           of causes beyond the reasonable control and without the fault or
           negligence of such party. Such causes may include, but are not limited
           to, , acts of God or public enemies, acts of civil or military
           authorities, fires, strikes, power outages, , riots or war.



                REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
                   (The following page is the signature page)






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        IN WITNESS WHEREOF, the parties do hereby enter into this agreement as of
the date first set forth above.


         ORBIT BRANDS CORPORATION

         By /s/ Xxxxxx X. Xxxxxxx
            Xxxxxx X. Xxxxxxx
            Chairman and CEO


         ITREX INTERNATIONAL CORPORATION

         By /s/ Xxxxxx X. Xxxxxxx
            Xxxxxx X Xxxxxxx
            Chairman and CEO


         MALIBU BEACH BEVERAGE GROUP LLC.

         By /s/ Xxxxxxx Xxxxx
            Xxxxxxx Xxxxx
            President