PHOSLOCK LICENSE AGREEMENT
INTEGRATED MINERAL TECHNOLOGY LIMITED
ACN 087 115 295
AND
PUREZZA GROUP INC.
1. DEFINITIONS
2. INTERPRETATION
3. APPOINTMENT OF LICENSE
4. LICENSE FEE
5. TERM OF LICENSE AGREEMENT
6. REFERRALS
7. TERMS AND CONDITIONS OF SALE
8. PROMOTION OF PRODUCT
9. PURCHASE OF PRODUCT
10. PRICE AND PAYMENT
11. ROYALTY
12. MINIMUM ORDER AMOUNTS
13. RESALE
14. APPROVALS OF AUTHORITIES
15. SUPPLY OF PRODUCT
16. EXTRA TERRITORIAL PRODUCT SALES
17. ASSIGNMENT
18. CONFIDENTIALITY
19. INDEPENDENT CONTRACTOR
20. LICENSOR'S LICENCE
21. INDEMNITY
22. LIABILITY
23. INSURANCE
24. INTELLECTUAL PROPERTY
25. EVENTS OF DEFAULT
26. BREACH
27. ADMINISTRATIVE PROVISIONS
LICENSE AGREEMENT
DATED: August 15th, 2001.
PARTIES
1. INTEGRATED MINERAL TECHNOLOGY LIMITED ACN 087 115 295 of 00 Xxxxxxxxx
Xxxxx, Xxxxx Xxxx in the state of Queensland (Licensor).
2. PUREZZA GROUP INC. a Florida Corporation of 0000 Xxx Xxxxxxx Xxxxxxx
Xx Xxxxxxxxxx XXXXXXX 00000 XXX. (Licensee).
BACKGROUND
A. The Licensor holds a licence from the Commonwealth Scientific and
Industrial Research Organisation ("CSIRO") allowing it the exclusive
right to commercialise the Product.
B. The Licensor wishes to market the Product in the Territories.
C. The Licensee is willing to promote and sell the Product in the
Territories in accordance with the terms of this Agreement.
SCHEDULE
Product: The "Product" known as Phoslock manufactured by the
Licensor or the Licensee or their approved
representative and based on the Patent and with
properties as detailed in Annexure C.
Price: For Product supplied by IMT, US$ 600 per US Short ton
(FOB Brisbane - Incoterms 2000)for Product packed in
bulk bags and US$ 660 per ton (FOB Brisbane -
Incoterms 2000) for Product packed in 50 lb bags.
Territory 1: The United States of America, Canada, Mexico.
Territory 2: Central and South America.
Field: Use of the Product for all applicable purposes.
Commencement Date: August 15th, 2001.
License Fee: Territory 1: US$150,000 plus 200,000 ordinary shares
of the capital of Purezza Group Inc the public entity
("Purezza") providing there are no more than 12
million shares issued in Purezza at the time of
NASDAQ OTCBB Listing otherwise 2% of the total issued
capital shares of Purezza.
Territory 2: 300,000 ordinary shares of the capital
of Purezza Group Inc the public entity ("Purezza")
providing there are no more than 12 million shares
issued in Purezza at the time of NASDAQ OTCBB Listing
otherwise 3% of the total issued capital shares of
Purezza.
Initial Period: The period beginning on the Commencement Date and
concluding on 30 June 2002.
Further Term: A term of eighteen years and four months during which
this Agreement continues after expiry of the Initial
Period subject to paragraph 5.3
Initial Period Royalty: US$ 850,000 as detailed paragraph 11.1
Further Term Royalty: Further Term Royalties (FTR) are the royalties
payable on all Phoslock sold by Licensee in the
amount of US$ 45 per US Short Ton. This royalty level
is to be fixed for a period of 10 years from signing
of the license agreement after which, the FTR will
increase to $60 per US Short ton for the balance of
the License term. Royalties are not included in
Price (as defined above) when Licensee buys Product
from Licensor and FTR is paid quarterly in arrears
within 21days of the end of each quarter.
Minimum Order Amount:
June 25 2001 to Dec 2002 There is no Minimum Order Amount in the first 10
months of this Agreement and the US $850,000 in
Advance Royalties includes royalties payable on the
first 28,000 tons of Product which is sold by the
Licensee in the time period of 14 months from the
date of signing of the License agreement. Quantities
in excess of this 28,000 ton amount during the
Initial Term or the first 16 months from the date of
signing this agreement will incur a royalty the same
as the Further Term Royalty amount (US$ 45 per US
Short Ton) and will be payable as per FTR method
described in paragraph 11.4.
Jan 2003 to Dec 2003 Minimum Royalty Amount of $ 250,000 plus 30,000
ordinary shares in the Licensee publicly traded
entity. (The cash component is based upon royalty
payable on 5,560 tons at US$45 per ton) This Minimum
Royalty Amount cash component is payable in two
instalments of $125,000 each. Instalment 1 is due and
payable when Licensee sells a total of 500 tons of
Product for the 2003 year. Instalment 2 is payable
when Licensee sells a total of 1,000 tons of Product
for the 2003 year.
Jan 2004 to Dec 2004 Minimum royalty of US$ 843,750 (based upon royalty
payable on 18,750 tons at US$45 per ton)
Jan 2005 to Dec 2011 Minimum royalty for each year from 2005 to 2011
inclusive, of US$1,260,000 (based upon royalty
payable on 28,000 tons per year at US$45 per ton).
Jan 2012 to End of
License Minimum royalty for each year from 2012 until the end
of this agreement, of US$1,680,000. (based upon
royalty payable on 28,000 tons per year at US$60 per
ton).
OPERATIVE PROVISIONS
1. DEFINITIONS
---------------------
1.1 In this Agreement unless otherwise expressly provided:
Expressions in bold in the left hand column of the Schedule have the
meanings set out against them in the right hand column of the Schedule;
Authority means a Commonwealth, State, local or foreign government
authority having jurisdiction over this Agreement;
Confidential Information includes all inventions and information
regarding the Product and the current or future business interests,
methodology or affairs of the Licensor, or any person or entity wit
which the Licensor may deal or be concerned with, including:
(a) matters of a technical nature;
(b) research and development information;
(c) manuals, notes, products, know how, trade secretes,
engineering or other data;
(d) specifications, processes, formulae;
(e) manufacturing, planning or marketing procedures,
techniques or information;
(f) accounting procedures or financial information together
with:
(i) the possible or likely function, purpose or application of
the same whether in the current activities of the Licensor
or fields to which the activities of the Licensor may
reasonably extend from time to time;
(ii) any part of or improvements to the same;
(iii) any recommendation, test or report of the Licensor
or any of its consultants or agents in connection
with the same and whether,
(iv) oral, written or recorded or stored by electronic,
magnetic, electromagnetic or other form, process
or otherwise or in a machine readable form or
translated from the original form, recompiled,
made into a compilation, partially copied,
modified, updated or otherwise altered; or
originated or obtained by, or coming into the
possession, custody, control or knowledge of, the
Licensor performing its duties under this
Agreement, either alone or jointly;
License includes the sale and any other means of disposal of Product
whether or not involving the passage of title or parting with
possession, custody or control thereof;
End User means a purchaser of the Product (from the Licensee or a
subsequent owner of the Product) who intends to use and not resell the
Product;
Head Licence means the technology licence entered into between
Commonwealth Scientific and Industrial Research Organisation as
Licensor and Integrated Mineral Technology Limited (formerly Pacific
Rim Minerals Pty Ltd) as Licensee dated 2 November 2000;
Intellectual Property Rights or Intellectual Property means any patent,
design, trademark, copyright, trade secret, trade process, Confidential
Information and all other rights resulting from intellectual activity
in the industrial or scientific field both in Australia and through the
world;
Patent means any patent issuing from patent application No
PCT/AU97/00892, which claims priority from Australian provisional
patent application No PO5896;
2. INTERPRETATION
------------------------
2.1 In this Agreement unless the context otherwise requires:
reference to a person includes any other entity recognised by law and
vice versa;
words importing the singular number include the plural number and vice
versa;
words importing one gender include every gender;
any reference to any of the parties by their defined terms includes
that party's executors, administrators or permitted assigns, or being a
company, its successors or permitted assigns;
every agreement or undertaking expressed or implied by which more
persons than one agree or undertake any obligation or derive any
benefit in terms of this Agreement shall bind or enure for the benefit
of such persons jointly and each of them severally;
clause headings are for reference purposes only;
reference to a statute includes all regulations under and amendments to
that statute and any statute passed in substitution for that statute or
incorporating any of its provisions to the extent that they are
incorporated. Expressions such as "including," "for example" and "in
particular" are not words of limitation.
Where an expression is defined, another part of speech or grammatical
form of that expression has a corresponding meaning.
A reference to "dollars" or "$" is to an amount in US currency.
3. APPOINTMENT OF LICENSEE
----------------------------
3.1 Licensor appoints the Licensee as its exclusive Licensee to sell and
or manufacture the Product in the Territories and for use in th
Field in accordance with this Agreement.
3.2 Licensor may not, either directly or indirectly appoint or permit the
appointment of any other person or entity to act as a Licensee of the
Product in the Territories while this Agreement continues.
4. LICENSE FEE
----------------------
In consideration for the appointment under clause 3.1, the Licensee must pay or
provide the Licensor the License Fee on execution of this Agreement. The
License Fee, except
(a) in the event of misrepresentation of the Head Licence, or
(b) the failure of Licensor to successfully complete the detail of
paragraph 8.5, or
(c) Licensor fails to deliver appropriate guarantee regarding federal
EPA approval for the Product as detailed in paragraph 14.1,
remains the property of the Licensor regardless of any other event
occurring after it is paid, including any part of the Initial Period
Royalty not being payable.
4.2 In the event that Licensee sells, leases, joint ventures or makes other
commercial gain or benefit from the appointment of a sub Licensee or
sub Licensees in the Territories, then it is agreed that:
a payment of 15% of the up front sale price or benefit due to Licensee
as a result of such appointment, is payable to Licensor by Licensee
within 7 days of receipt by Licensee of such benefit. It is further
mutually agreed that such 15% payment is limited to a maximum of
US$ 100,000 per sub Licensee arrangement.
4.3 In the event that Licensor fails to deliver appropriate guarantee
regarding Federal EPA approval for the Product as detailed in paragraph
14.1 then this agreement becomes voidable at the Licensee's option.
5. TERM OF LICENSE AGREEMENT
------------------------------
5.1 The License created by this Agreement commences on the Commencement
Date and continues for the Initial Period and the Further Term subject
to performance criteria as defined by Minimum Order Amount in the
Schedule at the beginning of this agreement being satisfied and the
Licensee making all payments to Licensor as required under this
Agreement.
5.2 If the Licensee or the Licensor is not in breach of this Agreement then
this Agreement will continue for the Further Term.
5.3 Despite this paragraph, this Agreement terminates on expiry or
termination of the Head Licence in accordance with paragraphs 20 and 21
of the Head Licence extracts contained in Annexure B and if the Head
Licence is extended or re-newed then this Agreement is agreed to be
extended or re-newed for the same period.
6. REFERRALS
--------------
6.1 The Licensor agrees to refer and must refer, on a timely basis, to the
Licensee all enquiries and orders for supply of the Product received
from any person or entity in the Territories.
7. TERMS AND CONDITIONS OF SALE
--------------------------------
7.1 The Licensee must distribute the Product on terms and subject to
conditions of sale which include and are not inconsistent with the
Terms and Conditions of Sale set out as Annexure A to this Agreement or
such other Terms and Conditions of Sale as the Licensor may from time
to time reasonably direct and, in particular, the Licensee's terms and
conditions of sale must include disclaimer provisions not less
favourable to the Licensor than those set out in Annexure A. In
addition Licensee must ensure that all Product is packaged properly for
the jurisdiction into which Product is sold.
8. PROMOTION OF PRODUCT
-------------------------
8.1 The Licensee must actively promote the sale of the Product within the
Territories. Licensee will expend in a manner exclusively at
Licensees' discretion, a minimum of US$ 25,000 per year, in marketing
expense, to promote the Product.
8.2 The Licensor must provide the Licensee on a timely basis; with all
technical and marketing support information and other assistance, which
the Licensee reasonably requests in connection with the promotion and
sale of the Product. The Licensor will bear the cost of providing
support to the Licensee, under this clause, up to a maximum of
US$ 25,000 on a 12 monthly basis.
8.3 The Licensee must only use promotional materials:
(a) supplied by the Licensor; or
(b) approved by the Licensor.
and such supply or approval will not be unreasonably withheld by
Licensor.
8.4 In performing its obligations under this Agreement the Licensee must:
(a) only use properly qualified and trained personnel; and
(b) perform its obligations competently and professionally
and in a manner which does not reduce the reputation of
the Licensor, the Licensee and the Product.
(c) provide Licensor a sample of proposed packaging prior to
Product sales and in any event ensure Product will only be
sold in packaging which includes details of Licensor along
with Licensee details and the Trademark "PHOSLOCK".
8.5 The Licensor will use all reasonable efforts:
(a) to cause CSIRO to register the trade xxxx "Phoslock" and
such logos or insignia attaching to the name "Phoslock" in
the Territories;
9. PURCHASE OF PRODUCT
-----------------------------
9.1 The Licensee may from time to time place purchase orders with the
Licensor for the Product.
9.2 Purchase orders must:
(a) Specify the time, date and place for delivery;
(b) If the Licensee is arranging carriage of the goods from
Brisbane, specify the carrier to whom the Product is to be
delivered in Brisbane; and
(c) Allow at least 6 weeks for delivery of the Product.
10. PRICE AND PAYMENT
-----------------------
10.1 All orders placed by the Licensee with the Licensor during the Initial
Term will be at the Price as detailed in the Schedule at the beginning
of this document.
10.2 The Licensee must also reimburse the Licensor for any carriage,
transportation, insurance or other costs incurred by the Licensor on
behalf of the Licensee in connection with transport or delivery of
the Product from Brisbane which have been pre approved by the Licensee.
10.3 Licensor will invoice the Licensee on the last day of each month in
respect of Product delivered to the Licensee in that month and payment
must be made by the Licensee within 15 days after the Licensee receives
the Invoice.
10.4 All payments to be made by the Licensee to the Licensor under this
Agreement must be made free and clear of any deduction or imposts of
any Authority or financial authority and the Licensee must pay all
taxes, duties and other impositions, including any tax or imposition in
the nature of a GST or VAT, that may be imposed by an Authority or
financial authority on:
(a) any payment made by the Licensee to the Licensor under
this Agreement;
(b) any supply made by the Licensor under this Agreement; and
(c) any import or export of the Product to or from any country.
If the Licensor necessarily incurs any such taxes, duties or
impositions on behalf of Licensee, then Licensee must reimburse the
Licensor, upon demand, for such taxes, duties or impositions in
addition to making the payments required under this Agreement. It is
agreed that the Licensee is not responsible for Income Taxes of the
Licensor.
11. ROYALTY
-------------
11.1 During the Initial Period, the Licensee must pay the Licensor the
Initial Period Royalty by the following instalments:
(a) $106,250 payable when the Licensee sells the first 250 ton
total of Product and
(b) $106,250 payable when the Licensee sells the 2nd 250 ton
total of Product and
(c) $106,250 payable when the Licensee sells the 3rd 250 ton
total of Product and
(d) $106,250 payable when the Licensee sells the 4th 250 ton
total of Product and
(e) $106,250 payable when the Licensee sells the 5th 250 ton
total of Product and
(f) $106,250 payable when the Licensee sells the 6th 250 ton
total of Product and
(g) $106,250 payable when the Licensee sells the 7th 250 ton
total of Product and
(h) $106,250 payable when the Licensee sells the 8th 250 ton
total of Product.
No royalty is payable on the next 26,000 tons of Product the Licensee
sells only in the event that the Licensee sells such 26,000 tons of
Product within the first 16 months from the commencement date and
Licensee is paid for stated sold Product within 30 days of the end of
such sale.
11.2 If the Licensee sells more than 28,000 tonnes of Product in the
Initial Period, the Licensee must also pay the Licensor by way of
royalty the sum equal to the Further Term Royalty for each dry tonne of
the Product in excess of the 28,000 tonnes sold during the Initial
Period.
11.3 The Licensee must pay the Licensor the Further Term Royalty for each
dry tonne of the Product that the Licensee sells during the Further
Term.
11.4 The Further Term Royalty must be paid to Licensor quarterly in arrears
for the relevant Product sold during the quarter (or part of a quarter)
just ended. The defined quarters are March, June, September and
December. Licensee agrees to pay Further Term Royalty within 21 days of
the end of each quarter.
11.5 The Licensee will keep and maintain complete details of all sales and
uses in respect of the Product in each month. The Licensee shall
provide a monthly report detailing such sales and uses (and which
report shall include a breakdown of the sales between the Licensee and
any sub-licensees) within 14 days from the end of each month to the
Licensor accompanied by a certificate in writing signed by a director
of the Licensee certifying the truth and completeness of such report.
The Licensee hereby irrevocably grants unlimited rights of audit to
Licensor with regard to determination of Product sold by Licensee and
with relation to Royalties payable by Licensee to Licensor. Such audit
will be at the expense of Licensor unless it is proven that Licensee
has understated quantities of sales by a factor of greater than 2.5% in
which case Licensee agrees to pay all costs associated with such audit.
11.6 For the purposes of this Agreement:
(a) "sell" includes:
(i) the disposition of Product in any manner
whatsoever; and
(ii) the use or consumption or application of Product
in any manner whatsoever.
(b) The sale of Product by any person at the direction of or
in accordance with the request, invitation or authority of
the Licensee (express or implied) which Product has not
otherwise been sold by the Licensee for the purposes of
this Agreement shall be deemed to be a sale of the Product
by the Licensee at the time that the other person sells
the Product;
(c) The sale of any Product which has previously been treated
as sold by the Licensee shall not be treated as a further
sale of that same Product.
12. MINIMUM ORDER AMOUNTS
--------------------------------
12.1 The Licensee must use its best endeavours to sell Product during the
Initial Period.
12.2 During the Further Term the Licensee must pay the minimum royalty
amounts as detailed by Minimum Order Amount defined in the Schedule at
the beginning of this Agreement whether or not it sells Product.
13. RESALE
------------------
13.1 The Licensee may in its sole discretion from time to time set the price
at which the Product is resold to End Users in the Territories. The
Licensee must give the Licensor quarterly reports setting out
details of all sales of the Product made by the Licensee, including the
volume sold, price and intended use of the Product by the End User.
14. APPROVALS OF AUTHORITIES
----------------------------------
14.1 Licensor warrants that at the date of this agreement to the best of the
licensors information and belief additional Federal EPA approvals are
not required for use of the Product in natural waterways and sewage
treatment plants in the USA. Licensor further warrants that the sole
ingredients of Phoslock are Bentonite and Lanthanum Chloride, which,
are both already approved substances of the Federal EPA. Licensor
undertakes to supply details of such approval to Licensee and or
complete any action required by the Federal EPA to finalize such
approval.
14.2 The Licensee must obtain and maintain all additional approvals and
licences from any applicable Authority, which are necessary to allow it
to sell and distribute the Product in the Territories.
15. SUPPLY OF PRODUCT
----------------------
15.1 The Licensor must use its best endeavours to supply Product ordered by
the Licensee at the time and place specified in the relevant order. The
Licensor will not be responsible to the Licensee for any failure to
deliver or delay in the delivery of Product beyond the control of the
Licensor. The Licensor does however represent and warrant that at all
times during the term of this agreement it will posses the capacity to
supply the quantities of Product defined as Minimum Order Amount in a
timely manner to the Licensee to allow the Licensee to fulfil its
obligations under this agreement. In the event that Licensor does not
fulfil its representations and warranties regarding capacity to supply
the quantities of Product defined as Minimum Order Amount then the
Licensee's remedy is that Minimum Order Amount is waived for the year
in which such failure of Licensor occurs. Such waiver has no impact on
Further Term Royalty payable on Product actually sold.
15.2 The Licensee may not cancel order due to delays in delivery without
giving at least 30 days prior written notice of its intention to do so.
No order can be cancelled after the Product ordered and has been
despatched from the Licensor's plant.
15.3 The Licensor agrees to allow the Licensee to manufacture the Product in
the Territories under the terms of this licence and to a quality not
inferior to that supplied by the Licensor and in a manner approved by
the Licensor.
16. EXTRA TERRITORIAL PRODUCT SALES
-----------------------------------------
16.1 Nothing in this Agreement will prevent the Licensor or other Licensees
or agents appointed by the Licensor from selling or distributing the
Product outside the Territories.
16.2 The Licensor will not permit any person who is authorised to sell or
distribute the Product outside the Territories to sell or distribute
the Product within the Territories.
16.3 Licensor agrees to provide Licensee with notice of any request for
proposals with respect to the issue of Licenses or Distributorships
being offered for sale in any territories not included in this
agreement.
16.4 The Licensee shall not take any orders for the sale to any person of
the Product, which the Licensee knows or has reason to believe are
intended to be exported from or sold or used outside the Territories
and shall immediately refer such person to the Licensor and provide
details of that person to the Licensor. Licensor agrees to ensure all
licensees appointed by Licensor will have similar obligations as placed
on the Licensee under this paragraph.
17. ASSIGNMENT
----------------
17.1 This Agreement is personal to the Licensee, who may not assign its
rights under this Agreement or sub-contract the obligations imposed
upon it by this Agreement without the prior written consent of the
Licensor, such approval, may not be unreasonably withheld by the
Licensor.
17.2 Licensor acknowledges that the Licensee is granted the right to sell,
lease, joint venture or create sub-licensee's under this agreement.
Such right is wholly subject to approval of the sub-licensee by
Licensor on each and every occasion and such approval, may not be
unreasonably withheld by the Licensor. Such sub-licensees can only
relate to the Territories and must contain terms and conditions, which
are approved (in writing) by the Licensor. Without limiting the
Licensor's discretion under this Clause the terms of any sub-license
must be consistent with this agreement and the sub-license shall be
nonassignable and shall include the terms of this License so far as
they are applicable to a sub-licence, but excluding the right of the
sub-licensee to grant sub-licenses.
17.3 The Licensee shall be responsible to the Licensor for the enforcement
of the terms of the sub-license and for inspecting the accounts and
records kept by the sub-licensee. The Licensee shall, at the request of
the Licensor, appoint a qualified person jointly with the Licensor to
inspect the records of the sub-licensee on behalf of both, and the
Licensor shall be entitled to a full report in respect of those records
and in respect of the sub-license generally.
17.4 Subject to Clause 11.6 (c) the Licensee shall be responsible to the
Licensor in respect of any sales by the sub-licensee for royalties as
though those sales were sales by the Licensee and such sales shall be
treated as contributing to achieving the levels of sales of Product
referred to in Clause 11.
17.5 The Licensee shall be responsible for the observance by the
sub-licensee of the terms of the sub-license.
17.6 The Licensor retains the right to assign its rights under this
agreement. The Licensee acknowledges that if the Head License is
terminated by CSIRO, then CSIRO may, at its option, assume or assign
the rights and responsibilities of the Licensor under this Agreement.
18. CONFIDENTIALITY
--------------------------
18.1 The Licensee must at all times:
(a) keep the Confidential Information confidential consistent
with clauses 15.1,15.2, of the Head Licence extracts
detailed in annexure B and the licensee agrees to be bound
by paragraph 15.1 and 15.2 of the Head License as if the
references in that paragraph to a party were a reference
to the Licensee;
(b) not disclose or otherwise place any of it at the disposal
of any third party;
(c) only use the Confidential Information in the performance
of its obligations under this Agreement; and
(d) ensure that its servants and agents observe the same
limitations.
19. INDEPENDENT CONTRACTOR
----------------------------------
19.1 The Licensee is an independent contractor and must not, except as
expressly authorised by this Agreement in respect of or on behalf of
the Licensor or any of its services or the Product:
(a) hold itself out to be an agent, employee, partner, joint
venturer or otherwise associated with the Licensor;
(b) have, or hold itself out as having, the authority to
pledge the credit of the Licensor;
(c) accept orders, otherwise contractually bind or enter into
any agreement or arrangement in the name of or otherwise
on account of the Licensor; or
(d) make, in the name of the Licensor or CSIRO, any
representation, warranty or statement, express or implied,
and whether oral or in writing, in relation to the
Product.
20. LICENSOR'S LICENCE
-----------------------------
20.1 The Licensor's right to appoint a Licensee and to manufacture or sell
the Product is based on the Head Licence and relevant extracts are
attached to this agreement (Annexure B).
20.2 The Licensee must perform its obligations under this Agreement in a
manner, which does not and is not likely to result in a breach by the
Licensor of the Licensor's obligations under the Head Licence.
20.3 The Licensee must not do any act inconsistent with CSIRO's rights in
the Patent.
20.4 If CSIRO's consent is required in relation to any matter in relation to
this Agreement, the Licensee must pay the costs of obtaining that
consent unless the consent is in relation to subject matter that is a
representation or warranty made by Licensor to Licensee.
20.5 The Licensor will perform all its obligations under the Head Licence to
the extent that it is legally obliged to do so and to the extent that
the Licensee is not obliged to perform them under this Agreement. The
Licensor further undertakes to perform all actions necessary to
maintain its rights under the Head Licence that could adversely affect
the Licensee if not maintained.
20.6 If the Head Licence ends, this Agreement automatically ends at the same
time, unless CSIRO has terminated the Head Licence and elected to
assume the rights and obligations of the Licensor under this Agreement.
21. INDEMNITY
---------------
21.1 Subject to the provisions of this Agreement, the Licensee will at all
times indemnify and hold harmless and defend the Licensor and its
officers, employees and agents (in this sub clause referred to as
"those indemnified") from and against any loss (including reasonable
legal costs and expenses) or liability reasonably incurred or suffered
by any of those indemnified where such loss or liability was caused by
any wilful, unlawful or negligent act or omission of the Licensee,
its employees, agents or sub-contractors in connection with this
Agreement.
21.2 Those indemnified will not settle any claim or demand without obtaining
the prior consent of the Licensee.
21.3 The Licensee's liability under Clause 22.1 to indemnify those
indemnified will be reduced proportionally to the extent that any act
or omission of those indemnified contributed to the loss.
21.4 Subject to the provisions of this Agreement, the Licensor will at all
times indemnify and hold harmless and defend the Licensee and its
officers, employees and agents (in this sub clause referred to as
"those indemnified") from and against any loss (including reasonable
legal costs and expenses) or liability reasonably incurred or suffered
by any of those indemnified where such loss or liability was caused by
any wilful, unlawful or negligent act or omission of the Licensor,
its employees, agents or sub-contractors in connection with this
Agreement.
21.5 The Licensor further indemnifies the Licensee against loss or liability
caused by inaccuracy of any detail regarding the representations and
warranties made by Licensor of the ability of the Product to remove
Phosphorus from water as detailed in Annexure C.
21.6 The Licensor further indemnifies the Licensee against loss or liability
resulting from claims, including but not limited to Patent and
Trademark infringement, against the Licensee regarding Intellectual
Property of the Licensor but the Licensor shall not be required to
indemnify the Licensee as provided in Clause 21.6 unless the Licensee:
(a) notifies the Licensor in writing as soon as practicable of
any infringement, suspected infringement or alleged
infringement;
(b) gives the Licensor the option to conduct the defence of
such a claim, including negotiations for settlement or
compromise prior to the institution of legal proceedings;
(c) provides the Licensor with reasonable assistance in
conducting the defence of such a claim; and
(d) authorises the Licensor to procure for the Licensee the
authority to continue the use and possession of the
infringing Product.
21.7 The Licensor shall not indemnify the Licensee to the extent that an
infringement, suspected infringement or alleged infringement arises
from:
(a) use of the Product in combination by any means and in any
form with other goods not specifically approved by the
Licensor;
(b) use of the Product in a manner or for a purpose not
reasonably contemplated or not authorised by the Licensor;
(c) modification or alteration of the Product without the
prior written consent of the Licensor.
21.8 In the event that proceedings are brought or threatened by a third
party against the Licensee alleging that the Licensee's use of the
Product constitutes an infringement of intellectual property rights,
the Licensor must at its own expense conduct the defence of such
proceedings. The Licensee shall provide all necessary co-operation,
information and assistance to the Licensor in the conduct of the
defence of such proceedings.
22. LIABILITY
--------------------
22.1 Limitation Except as expressly provided to the contrary in this
Agreement, all terms, conditions, warranties, undertakings, inducements
or representations whether expressed or implied, statutory or otherwise
relating in any way to the Product, or the Licensor and CSIRO are
excluded. Without limiting the generality of the foregoing, the
Licensor and CSIRO shall not be under any liability to the Licensee in
respect of any loss or damage (including consequential loss or damage
and economic loss or damage) howsoever caused which may be suffered or
incurred or which may arise directly or indirectly out of a failure or
omission on the part of the Licensor.
22.2 Statutory Liability The Licensor will only be liable under a term,
condition, or warranty implied by statute, if any provision in this
Agreement excluding or modifying the application or exercise of, or
liability under such term, condition or warranty is prohibited by
statute. However to the extent permitted by law, the liability the
Licensor for any breach of such a term, conditions or warranty shall be
limited at the option of the Licensor to:
(a) Supplying the Product again; or
(b) Paying the cost of supplying the Product again.
23. INSURANCE
--------------
23.1 The Licensee must affect and keep public liability, personal injury,
property damage and product liability and other insurances in such
amount or amounts and on such basis as shall be reasonable or as may
from time to time be required by the Licensor to cover all claims,
demands, actions, costs, damages, judgments, penalties, expenses and
liabilities of any kind whatsoever or arising directly or indirectly
out of the sale and License of the Product and the utilisation or use
of the Product by the public.
24. INTELLECTUAL PROPERTY
---------------------------
24.1 The parties acknowledge that this Agreement does not transfer to any
party any Intellectual Property Rights in the Product or Patent.
24.2 The benefit of any Intellectual Property created, authored, discovered,
conceived or designed by the Licensee or any sub Licensee during the
course of this Agreement will pass to the Licensor and the Licensee
assigns the benefit of that Intellectual Property and the rights
attaching to it to the Licensor. The Licensee further agrees to execute
any or all instruments or documents deemed necessary by the Licensor to
transfer such rights, title or interest to the Licensor. It is agreed
that such transfers will be solely at the Licensors' cost.
24.3 Licensee may not take any action to challenge the validity of any
Intellectual Property Rights licensed under this agreement.
24.4 The Licensee must advise the Licensor immediately on becoming aware of:
(a) any suspected or actual infringement by any person of the
Intellectual Property Rights in the Product or Patent or
relating to them; and
(b) any person claiming that the Product or the Patent
infringes the rights of any person.
24.5 The Licensee may not institute or defend proceedings relating to the
product or the patent unless it first obtains written consent from the
Licensor and from the licensor under the Head License. Nothing shall
prevent the Licensee from defending itself.
24.6 The Licensee shall comply fully with the obligations imposed upon the
Licensor as licensee under the Head License so far as those obligations
relate to the protection of CSIRO's rights in the Technology (as that
term is defined in the Head License) and the use of the Technology.
24.7 The Licensee acknowledges and agrees that there have been no
representations or warranties made on behalf of CSIRO.
24.8 The Licensee must obtain the written consent of the Licensor before it
uses the Licensor's name or the Licensor's trademark or logo;
24.9 The Licensee must obtain the written consent of the Licensor and CSIRO
before it:
(a) uses the names Commonwealth Scientific and Industrial
Research Organization or CSIRO or its staff or any
trademark or logo of CSIRO; or
(b) makes a public statement about this agreement or any
related matter.
25. EVENTS OF DEFAULT
-----------------------
25.1 The Licensee is in default of an essential term of this Agreement and
an Event of Default will occur if:
(a) Failure to Pay Money. Any amount of the Initial Period
Royalty is not paid within 14 days of it being payable
under the terms of this agreement or when any other money
payable by the Licensee to the Licensor is not paid within
sixty days of it falling due:
(b) Unauthorised Transfers. The Licensee is proven to
knowingly have failed to comply with Clause 18;
(c) Continuing Breach. The Licensee fails to observe or
perform any of the essential terms in this Agreement and
the failure continues for a period of fifteen days after
the Licensor gives its notice to the Licensee (other than
covered by (a) and (b) of this Clause);
(d) Winding Up. The Licensee is a company and is wound up or
dissolved (other than for the purpose of amalgamation or
reconstruction) entered into a scheme of arrangement with
its creditors, or has a controller, controlling manager,
administrator, liquidator, provisional liquidator,
receiver, receiver and manager or official manager
appointed or ceases or threatens to cease to carry on a
business.
25.2 The Licensor is in default of an essential term of this Agreement and
an Event of Default will occur if the Licensor:
(a) fails to provide the evidence of Federal EPA approval as
defined in paragraph 14.1
(b) fails to complete Licensor obligations under the agreement
between Licensor and CSIRO to maintain the Head License
until the end of the term.
26. BREACH
-----------------
26.1 Should there be an Event of Default by Licensee then the Licensee must
rectify such Event of Default within 30 days after written notice. If
such Event of Default is not rectified within 30 days then Licensor may
upon giving not less than thirty (30) days prior written notice to the
Licensee terminate this Agreement whereupon all unpaid moneys owing by
the Licensee to the Licensor at the time termination becomes effective
will immediately become due and payable. It is agreed that in the event
of such termination the limit of liability of Licensee is the amount of
License Fee, Advance Royalty and Further Term Royalty due at the date
of termination.
26.2 Should there be an event of Default by the Licensor then the Licensor
must rectify such Event of Default within 30 days. If such Event of
Default is not rectified within 30 days then as detailed in paragraph
25.2 then Licensee may upon giving not less than thirty (30) days prior
written notice to the Licensor terminate this Agreement whereupon all
unpaid Initial and Further Royalty Amounts owing by the Licensee to the
Licensor will immediately cease to be payable and Licensee will be free
to protect its business position by way of negotiation directly with
CSIRO for rights equivalent to those previously held prior to the Event
of Default by Licensor.
Upon notice of termination being given by the Licensor the Licensee
must:
(a) immediately deliver to the Licensor or to the Licensor's
direction any Confidential Information;
(b) cease manufacture or sale of the Product and return to the
Licensor all Confidential Information;
(c) if requested by Licensor confirm by letter signed by a
director of the Licensee that it has complied with all of
its obligations under this Clause.
26.3 Notwithstanding paragraphs 26.1 and 26.2 the Licensor will allow the
Agreement to continue to apply as if the Agreement had not been
terminated for a period of up to 12 months to the extent necessary to
allow the Licensee to complete all contracts already entered into for
the sale of Product and to sell inventory of Product held at the time
of termination. During this period, the Licensee must continue to
fulfil its obligations towards the Licensor under this Agreement and
the Licensor is free to negotiate the appointment of a replacement
licensee.
26.4 When an unrectified Event of Default occurs by Licensee and after
notice of termination being given by the Licensor to the Licensee,
Licensor is free to negotiate directly with any sub Licensee in the
Territories to enable continued sales of Product through the License
network created by Licensee during the term of this Agreement.
26.5 Any act or omission which if it were an act or omission of the Licensee
would be a breach of this Agreement by the Licensee shall be deemed to
be such an act or omission for which the Licensee is responsible if
done or omitted by any body corporate or unincorporate (whether
constituted at the date of this Agreement or not) which is controlled
wholly or mainly or directly or indirectly in any manner by the
Licensee or by any person or persons who controls or control or by any
such body which itself controls wholly or mainly or directly or
indirectly in any manner the Licensee or which is controlled wholly or
mainly or directly or indirectly by a person or persons and/or body or
bodies corporate and/or unincorporate who or which controls or control
wholly or mainly or directly or indirectly the Licensee by any firm or
unincorporated body of which the Agent is a partner or member.
26.6 It is further agreed that in the event of the Licensor's failure to
deliver the evidence of Federal EPA approval as defined in paragraph
14.1 within nine months from the commencement date then Licensor will
repay upon demand the License Fee.
27. ADMINISTRATIVE PROVISIONS
-------------------------------
27.1 Notices
(a) Any notice, approval, request, demand or other
communication (notice) to be given for the purposes of
this Agreement must be in writing and must be:
(i) served personally; or
(ii) sent by registered post to the address of the
party specified in this Agreement (or such other
address as that party notifies in writing); or
(iii) sent by facsimile transmission to:
For the Licensor:+ 61 7 3868 2827
For the Licensee + 1 845 638 4767
or in either case such other facsimile number as that
party notifies in writing.
(b) A notice given:
(i) Personally will be served on delivery;
(ii) by post will be served seven days after posting;
(iii) by facsimile transmission will be served on
receipt of a transmission report by the machine
from which the facsimile was sent indicating that
the facsimile had been sent in its entirety to the
facsimile number specified in this Agreement or
such other number as may have been notified by
the receiving party. If the facsimile has not
been completely transmitted by 5:00 pm determined
by reference of the time of day at the recipient's
address) it will be deemed to have been served on
the next day.
27.2 Stamp Duty
(a) The Licensee must pay all stamp duty on or arising in
connection with this Agreement and any other related
documentation.
(b) Each party must bear its own legal and other costs and
expenses arising directly or indirectly with respect to
the preparation, execution, completion and performance of
this Agreement or any related documentation.
27.3 Governing Law
The venue for any action shall be in the Supreme Court of the State of
New York County of Rockland or any lower court of competent
jurisdiction located in the County of Rockland or if filed in United
States Federal Court then the venue for any Federal action shall be in
the Federal Court in White Plains State of New York without regard to
principals of conflicts of Law.
27.4 Waiver
The failure or omission of a party at any time to:
(a) enforce or require the strict observance of or
compliance with any provision of this Agreement;
or
(b) exercise any election or discretion under this
Agreement, will not operate as a waiver of them or
the rights of a party, whether express or implied,
arising under this Agreement.
27.5 Further Assurance
Each party must sign, execute and complete all additional documents
which may be necessary to effect, perfect, or complete the provisions
of this Agreement and the transactions to which it relates.
27.6 Severability
If any part of this Agreement is or becomes illegal, invalid or
unenforceable in any relevant jurisdiction, the legality, validity or
enforceability of the remainder of the Agreement will not be affected
and this Agreement will be read as if the part had been deleted in that
jurisdiction only.
27.7 Entire Understanding
(a) This Agreement contains the entire understanding
and agreement between the parties or any parties
of the same names or address included in this
agreement, as to the subject matter of this
Agreement.
(b) All previous negotiations, understandings,
representations, warranties, memoranda or
commitments in relation to, or in any way
affecting, the subject matter of this Agreement
are merged in and superseded by this Agreement
including but not limited to the previously
proposed License Agreementdated June 30th 2001 and
all such matters will be of no force or effect and
no party will be liable to any other party in
respect of those matters. However the parties do
agree that the Territory 1 License Fee of $150,000
has been paid to Licensor in July 2001 in advance
of signing this agreement, and is to be
transferred and considered a valid payment under
the terms of this agreement.
(c) No oral explanation or information provided by
any party to another will affect the meaning or
interpretation of this Agreement or constitute
any collateral agreement, warranty or
understanding between any of the parties.
27.8 Merger
The obligations contained in this Agreement will continue until
satisfied in full.
27.9 Execution by Counterparts
This Agreement may consist of one or more counterpart copies and all
counterparts will, when taken together, constitute the one document.
EXECUTED as an agreement. SIGNED on behalf of INTEGRATED )
MINERAL TECHNOLOGY LIMITED in accordance with section 127 of )
the Corporations Law in the presence of: )
)
)
)
---------------------------------- )
Signature of Director )
) --------------------------------
) Signature of Director/Secretary
---------------------------------- )
)
)
Name of Director - please print )
) ---------------------------------
Name of Director/Secretary - please print
SIGNED on behalf of PUREZZA GROUP INC. in accordance with
its constitution in the presence of:
----------------------------------
Signature of Officer
--------------------------------
Signature of Officer
----------------------------------
Name of Officer - please print Name of Officer - please print
ANNEXRE A
CURRENT TERMS AND CONDITIONS OF SALE OF PHOSLOCK TO END USERS
1. Minimum Terms Sale of the Product referred to on the face of this
Agreement is subject to the following minimum terms and conditions. Any
inconsistent terms in the Buyer's order or confirmation will not be binding on
the Seller.
2. Variation or Terms These terms and conditions may not be varied or added to
or this Agreement terminated except in writing. No variation, addition,
termination or waiver of any term or condition shall be binding on the Seller
unless in writing signed by the Seller's duly authorised representative.
3. Intellectual Property The parties acknowledge that no intellectual property
rights are transferred, assigned, or licensed by way of this Agreement.
4. Delays and Shortages The Seller and Integrated Mineral Technology Limited
("IMT") will not be responsible for delays in delivery or failure to deliver due
to causes beyond their control including but not limited to acts of God, war,
mobilisation, civil commotion, riots, embargoes, orders or regulations of
governments of any relevant jurisdiction, fires, floods, strikes, lockouts or
other labour difficulties, shortages of or inability to obtain shipping space or
transportation, or shortages of or unavailability of the Product.
5. Variations in Product The Seller and IMT will not be liable for normal minor
variations in tolerances, dimensions, weight or quality of the Product.
6. Acceptance of Product The Buyer is required to give written notice to the
Seller of any patent defect or other claim ascertainable upon reasonable
inspection of the Product within 14 days after receipt of the Product. The
Seller and IMT or its nominated representative must be given reasonable
opportunity to inspect the Product where any such notice is given.
Failure to so inform the Seller will be conclusive:
(a) that the Seller has satisfactorily performed; and
(b) that the Buyer has accepted the Product.
7. Limitation of Liability
(c) Specifications The Seller and IMT will not be liable for any
error, omission or inaccuracy in drawings or specifications
provided to the Buyer.
(d) Limitation Except as expressly provided to the contrary in this
Agreement, all terms, conditions, warranties, undertakings,
inducements or representations whether expressed or implied,
statutory or otherwise relating in any way to the Product, the
Seller, IMT or Commonwealth Scientific and Industrial Research
Organisation ("CSIRO") are excluded. Without limiting the
generality of the foregoing, the Seller, IMT and CSIRO will not be
under any liability to the Buyer in respect of any loss or damage
(including consequential loss or damage and economic loss or
damage) howsoever caused which may be suffered or incurred or
which may arise directly or indirectly out of use of the Product
or a failure or omission on the part of the Licensor, IMT or
CSIRO.
(e) Statutory Liability The Seller or IMT will only be liable under a
term, condition, or warranty implied by statute, if any provision
in this Agreement excluding or modifying the application or
exercise of, or liability under such term, condition or warranty
is prohibited by statute. However to the extent permitted by law,
the liability the Licensor for any breach of such a term,
conditions or warranty shall be limited at the option of the
Seller or IMT as the case may be to:
Supplying the Product again or Paying the cost of supplying the Product again.
8. Limited Warranty The Product is warranted to be free from manufacturing
defects only.
ANNEXURE B
The pages of Annexure B contain the headings as follows:
1 TECHNOLOGY LICENCE
2 CSIRO, Terms of Technology Licence (8 of 13)
ANNEXURE C
The pages of Annexure B contain the headings as follows:
1 PCT "Attachment A"
2 Claims -00-
0 -00-
0 -00-
5 -18-
6 -19-
