___________________________________________________
License Agreement
___________________________________________________
THIS AGREEMENT made this 25th day of February, 1997
BETWEEN:
CPII Carbon Products Industries Inc.
Xxxxx 0000, 000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
(hereinafter called the `Licensee')
OF THE FIRST PART
AND
Southern Ventures, Inc.
00000 Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter called `Licenser')
OF THE SECOND PART
WHEREAS the Licenser is engaged in the research, development
and manufacture of certain commercial and industrial equipment
(herein call the `Equipment') and processes for, inter alia, the
production of chemicals from carbonaceous materials, namely, but
not limited to the production of chars and oils from wood wastes
(e.g. sawdust, bark, shavings), scrap tires, pulp mill sludges
and municipal sewage sludges;
AND WHEREAS the Licenser in the course of its operations has
obtained `know how', patents, developed secret processes and
formulae for the manufacture and operation of the Equipment and
has acquired technical data consisting principally of reports,
drawings, specifications, blueprints and written descriptions of
manufacturing processes for the Equipment (all of which is
hereinafter called the `Licensed Processes') and is willing to
grant the right to use said Licensed Processes within the
Licensed Area;
AND WHEREAS the Licensee desires to engage in the manufacture
and use of the Equipment in the Licensed Area;
AND WHEREAS the Licensee desires to acquire the aforesaid
right to use said Licensed Processes belonging to the Licenser
in a Licensed Area;
NOW THEREFORE the parties hereto mutually covenant and agree
as follows:
1. Definitions
As used in this agreement, the following terms shall have the
following definitions unless the context clearly requires
otherwise:
a) `Licensed Area' means the Chemical Synthesis Unit (CSU)
situated at all CPII Carbon Products Industries Inc. projects in
location within a province of Canada subsequently to the date of
this agreement.
b) `Licensed Processes' means the Licenser's manufacturing
processes and systems for producing and assembling the Equipment
developed or acquired by the Licenser prior to the date of this
agreement and any information either written or oral which could
reasonably be construed as relating thereto.
c) `Licensed Processes' means any and all Equipment or systems
produced under any Licensed Process.
2. Secret Processes
a) Licenser hereby grants to Licensee the perpetual right to
manufacture and use the Licensed Processes within the Licensed
Area. The Licensed Processes shall be transferred to the
Licensee as soon as possible after the date of this agreement;
such transfer to be completed not later than ninety (90) days
from the date of this agreement, in the form of reports,
drawings, designs, specification, blueprints and written
descriptions of manufacturing processes which will be delivered
to the Licensee.
b) By such grant, Licensee agrees not to disclose the Licensed
Processes to anyone else for any use whatsoever. By such grant,
Licenser shall have the exclusive right to prevent the
unauthorized use of the Licensed Processes and the unauthorized
use and sale of the Licensed Area.
c) Licenser shall furnish in good faith the data and other
material sufficient to transfer the Licensed Processes covered
by this agreement. Licenser warrants that the processes,
formulae, technical data and `know how' will be sufficient and
suitable for production of the Equipment to a quality comparable
to the quality now produced by the Licenser, provided that
Licensee at all times conforms strictly with the processes,
formulae, technical data and `know how' transferred to it by
Licenser and provided that Licensee at all times installs and
uses the Equipment required and purchases and uses the raw
materials the standard of quality required.
d) The rights and license herein granted shall not include the
right to grant sub-licenses thereunder unless approved by
Licenser.
e) Nothing contained in this paragraph shall be construed to
grant to Licensee any right to sell the Licensed Processes
within any Licensed Area or to use or sell the Licensed
Processes outside any Licensed Area.
f) Licenser agrees to disclose to Licensee all developments or
improvements of the Licensed Processes that Licenser may develop
or acquire during the term of this agreement. Licensee agrees
to disclose to Licenser all technical data and information
relating to any and all developments or improvements of the
Licensed Processes that Licensee may develop or acquire during
the term of this agreement.
3. License Fee and Royalty
As consideration for the rights granted hereunder, Licenser
acknowledges payment of the license fee of Fifty Thousand
Dollars (US$50,000) by Xxxxx Xxxx on behalf of the Licensee for
the right to an unlimited number of Licensed Areas as defined in
Paragraph 1.(a). Licensee shall pay to Licenser a royalty fee
of Five Dollars (US$5.00) per ton of material processed for each
Licensed Area. Licensee has the right, at any time this
agreement remains in effect, to pay an additional Two Million
Dollars (US$2,000,000), at which time the royalty fee will
immediately be reduced to Two Dollars and Fifty Cents (US$2.50)
per dry ton of material processed for each Licensed Area.
4. Term
Unless otherwise terminated as herein set out, the term of this
Agreement shall be twenty five (25) years from the date of this
Agreement or such other date as the parties shall mutually agree
at which time this Agreement shall terminate. Licensee shall
have an option to renew this Agreement for an additional 25
years.
5. Disclosure
Licensee agrees not to disclose, and to use its best efforts,
and to take all actions necessary, to prevent its employees and
suppliers from disclosing the Licensed Processes or any
information relating thereto transferred under this agreement to
any person, firm, corporation or other business entity unless
and until Licensee has obtained the prior written approval of
Licenser and upon request, will execute a Secrecy Agreement with
Licenser.
6. Indemnity
Licensee shall hold Licenser free from any liability or
responsibility in connection with claims of any persons caused
by or arising from any defect in or failure of any products
manufactured by Licensee under the Licensed Processes covered by
this agreement. Licensee further agrees to reimburse Licenser
for any claims paid by Licenser in good faith under order of any
court to any person with respect to the products manufactured by
Licensee under the Licensed Processes covered by this agreement.
7. Cancellation
a) Licenser shall have the right to cancel this agreement:
(i) for breach or default of any of its provisions if Licensee
fails to remedy such breach or default within thirty (30) days
after Licensee has received notice from Licenser, specifically
pointing out the nature of such breach or default, or
(ii) in the event that CPII Carbon Products Industries Inc. or
its subsidiaries no longer retains control of the Plant
Operating Agreement for any CSU.
b) Any notification required or permitted herein shall be
accomplished by registered letter with return receipt. The date
stamped by the Post Office Administration on the return receipt
of the registered letter will be legally considered to attest
the fact in case of controversies and shall be deemed to have
been received within seven (7) days thereafter. Notices shall
be sent to the Licenser and to the Licensee at the addresses
herein before set out or to such other addresses as either party
may notify to the other. If a party changes its address, notice
thereof must be given in writing to the other party.
c) The failure of a party to give notice in writing to the
other party or non fulfillment of any term or condition of this
agreement shall not constitute a waiver thereof, nor shall the
waiver in writing of any breach or non fulfillment of any term
or condition of this agreement constitute a waiver of any other
breach or non fulfillment of that or any other term or condition
of this agreement.
8. Reversion of Rights
a) In the event
(i) of the cancellation of this agreement as provided for
herein, or
(ii) of the expropriation or nationalization of the operations
of the Licensee, or
(iii) of the filing of a petition of bankruptcy or insolvency
by the Licensee, or the appointment of a receiver for
substantially all of the property of the Licensee, or
(iv) that CPII Carbon Products Industries Inc. or one of its
subsidiaries no longer retains control of the Plant Operating
Agreement for any CSU, or
(v) that any of the primary equipment of any plant is seized
or falls into the hands of a third party,
all properties, including all rights, titles and interests
granted by Licenser to Licensee under the terms of this
agreement shall immediately revert to Licenser.
b) In the circumstances of any reversion as set forth in
subparagraph (a) above, Licensee agrees to forbear from using
the Licensed Processes immediately upon receiving notice thereof
from Licenser. Licensee further agrees that said forbearance
from the use and exploitation of the Licensed Processes shall be
binding upon its successors and assigns.
9. Arbitration
Unless otherwise settled by the parties, all disputes,
controversies or differences which may arise between the parties
out of or in relation to or in connection with this agreement
shall be finally settled by arbitration pursuant to the
appropriate arbitration legislation of the Licensed Area.
10. Miscellaneous
a) Nothing contained herein or done hereunder shall be
construed as constituting either party the agent of the other in
any sense of the word whatsoever.
b) This agreement contains the entire agreement between the
parties and no representations, inducements or agreements, oral
or otherwise, not embodied herein shall have any force or effect.
c) Any agreement hereafter made shall be ineffective to change,
modify, add or discharge in whole or in part, the obligations
and duties under this agreement unless such agreement is in
writing and signed by each party hereto.
d) Time shall be of the essence of this agreement and every
part thereof.
e) The validity of any particular provision of this agreement
shall not affect any of the provisions thereof, but the
agreement shall be construed as if such invalid provisions were
omitted.
f) This agreement shall be binding upon and inure to the
benefit of the parties hereto, for themselves and their legal
personal representatives, successors and assigns.
IN WITNESS WHEREOF the parties hereto have executed these
presents.
CPII Carbon Products Industries Inc.
"Xxxxx Xxxxxx" "Xxxxx X. Xxxx"
______________________ by _______________________________
Witness Licensee
Southern Ventures, Inc.
"W. Xxxxxxxx Xxxx" "Xxxxxx X. Xxxxxx"
_________________________ by _______________________________
Witness Licenser
