LICENSE AGREEMENT
Exhibit
10.1
This
Agreement (the "Agreement") dated as of February,24, 2010 ("Effective Date") is
made by and between Globotek Holdings, Inc., a Nevada corporation having a
business address at 00, Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx region,
Russia.("Globotek") and Energy Network Limited (XXX) ("Licensee") having a
business address of 1st Floor, Arbory House, 41 Arbory Street, Castletown, Isle
of Man, British Isles, 1M9 ILL. Globotek is presently reporting to the
Securities and Exchange Commission ("SEC") under the company name Caribbean
Villa Catering Corp. with its formal legal name change in progress.
WHEREAS,
Globotek and its affiliates represent a group of enterprises that have developed
a unique and patented technology specializing in the treatment of Associated
Petroleum Gas ("APG") via a modular processing plant (the "Globotek APG System"
or 'the Intellectual Property" or "Licensed Property"), which is set forth in
Attachment 1. The Globotek APG System can be used in operations in the Russian
Federation as well as other parts of the world.
WHEREAS,
Licensee desires to (i) license such Intellectual Property to use in sales and
marketing of various packaging products in the Territory (as defined
herein).
NOW,
THEREFORE, in consideration of the covenants and premises set forth herein, the
parties hereby agree as follows_
I.
EFFECTIVE DATE
This
Agreement is effective February,24, 2010 ("Effective Date"). 2. DEFINITIONS
As used
in this Agreement, the following terms have the meanings indicated:
2.1 "Affiliate" means any business
entity more than 50% owned by Licensee, any business entity which owns more than
50% of Licensee, or any business entity that is more than 50% owned by a
business entity that owns more than 50% of Licensee.
2.2 "Licensed Field" means solving
APG flaring problem by utilization via processing with output to be the
following products: Natural gasoline (stable or unstable) and/or LPG and/or Dry
natural gas and/or Electricity at the territory of Nigeria
2.3 "Licensed Product" means any
product Sold by Licensee comprising Licensed Subject Matter pursuant to this
Agreement. The primary product sold under this Agreement will be the Globotek
APG System.
2.4 "Licensed Subject Matter"
means the exclusive marketing and sales rights at Licensed
Field.
2.5 "Licensed Territory"
means Nigeria. , and other
territories added by mutual written agreement and listed at time to time on
schedule
A.
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2.6 "Net Sales" means the gross
revenues received by Licensee from the Sale of Licensed Products less sales
and/or use taxes actually paid, import and/or export duties actually paid,
outbound transportation prepaid or allowed, and amounts allowed or credited due
to returns (not to exceed the original billing or invoice amount).
2.7 "Sale, Sell or Sold" means the
transfer or disposition of a Licensed Product for value to a party other than
Licensee.
2.8 "Technology Rights" means
Globotek's rights in technical information, know-how, processes, procedures,
compositions, devices, methods, fottnulas, protocols, techniques, software,
designs, drawings or data created Globotek before the Effective Date relating to
the Licensed Subject Matter.
3. WARRANTY:
SUPERIOR-RIGHTS
3.1
Except for the rights, if any, of the Government of the United States, Nigeria
or Russia, Globotek represents and warrants its belief that (i) it is the owner
of the entire right, title, and interest in and to Licensed Subject Matter, (ii)
it has the sole right to grant licenses thereunder, and (iii) it has not
knowingly granted licenses thereunder to any other entity that would restrict
rights granted to Licensee except as stated herein.
3.2
Licensee understands and acknowledges that Globotek, by this Agreement, makes no
representation as to the operability or fitness for any use, safety, efficacy,
ability to obtain regulatory approval, and/or breadth of the Licensed Subject
Matter.
3.3
Licensee understands and acknowledges that Globotek, by this Agreement, makes no
representation as to the ability to obtain regulatory approval for the Licensed
Subject Matter for purposes outside the scope of its current regulatory
approval, but will make best efforts to work with Licensee if additional
regulatory approvals are required.
3.4
Licensee, by execution hereof, acknowledges, covenants and agrees that it has
not been induced in any way by Globotek, or its employees to enter into this
Agreement, and further warrants and represents that it has conducted sufficient
due diligence with respect to all items and issues pertaining to this Article 3
and all other matters pertaining to this Agreement.
4. LICENSE
4.1
Globotek hereby grants to Licensee an exclusive license under Licensed Subject
Matter to sell Licensed Products within the Licensed Territory for use within
Licensed Field. Exclusivity in the Licensed Territory shall be forfeited by
Licensee if one Globotek APG System (referred to throughout as a "Unit") is not
sold within the 9 months from the Effective Date, and a unit for each
consequetive 9 month period thereafter within in each country of the Licensed
Territory. This grant is also subject to the payment by Licensee to Globotek of
all consideration as provided herein, and is further subject to rights retained
by Globotek to:
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a.
Publish the general scientific findings from research related to Licensed
Subject Matter subject to the terms of Section 10, Confidential
Information; and
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b.
Use Licensed Subject Matter for research, teaching and other
educationally-related purposes.
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4.2
Licensee may extend the license granted herein to any Affiliate if the Affiliate
consents to be bound by this Agreement to the same extent as
Licensee.
4.3
Licensee may grant sublicenses consistent with this Agreement if Licensee is
responsible for the operations of its sublicensees relevant to this Agreement as
if the operations were carried out by Licensee, including the payment of
royalties whether or not paid to Licensee by a sublicensee. The granting of a
sublicense must be approved by Globotek in advance. Licensee must deliver to
Globotek a true and correct copy of each sublicense granted by Licensee, and any
modification or termination thereof, within 30 days after execution,
modification, or termination. When this Agreement is terminated, all existing
sublicenses granted by Licensee must be assigned to Globotek.
5.
PAYMENTS AND REPORTS
5.1 In
consideration of rights granted by Globotek to Licensee under this Agreement,
Licensee will pay Globotek a running royalty as described in Schedule A for each
country in Licensed Teritory. Any royalty payments shall be deferred for three
years for each Unit purchased. Royalty payments will then be due 30 days after
each quarter of a calendar year.
5.2
During the Term of this Agreement and for 1 year thereafter, Licensee agrees to
keep complete and accurate records of its and its sublicensees' Sales and Net
Sales of Licensed Products under the license granted in this Agreement in sufficient
detail to enable the royalties payable hereunder to be determined. Licensee
agrees to permit Globotek or its representatives, at Globotek's expense, to
periodically examine its books, ledgers, and records during regular business
hours for the purpose of and to the extent necessary to verify any report
required under this Agreement. If there are any discrepancies discovered by
Licensee or Globotek, such under or overpayment will be reconciled
immediately.
5.3
Within 60 days after December 31, beginning immediately after the Effective
Date, Licensee must deliver to Globotek a true and accurate written report, even
if no payments are due Globotek, giving the particulars of the business
conducted by Licensee and its sublicensee(s), if any exist, during the preceding
calendar year under this Agreement as are pertinent to calculating payments
hereunder. This report will include at least:
a. the
quantities of Licensed Subject Matter that it has produced;
b. the total
Sales;
c. the
calculation of royalties thereon; and
d. the
total royalties computed and due Globotek.
5.4 All
amounts payable here by Licensee must be paid by electronic transfer in Euros or
United States Dollar funds as directed by Globotek.
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6.
TERM AND TERMINATION
6.1 The
term of this Agreement is from the Effective Date for a period of ten (10) years
("Licenced Period"), provided that one Unit is sold within the first 9 months.
If after nine months, there has not been a sale of a single Unit, the
exclusivity in the Territory will cease for the remainder of the Licenced
Period. Thereafter for every following year, if there has not been a sale of a
single Unit within the first nine months of that year, the exclusivity in the
Territory will cease for the remainder of the Licensed Period.
6.2 The
following definitions apply to Article 6: (i) "Commercialize" means having Sales
of Licensed Products in such jurisdiction; and (ii) "Active attempts to
commercialize" means having Sales of Licensed Products or an effective, ongoing
and active research, development, marketing or sales program as appropriate,
directed toward obtaining regulatory approval or Sales of Licensed Products in
any jurisdiction, and plans acceptable to Globotek, in its sole discretion, to
commercialize licensed product in the jurisdiction(s) that Globotek intends to
terminate.
6.3 This
Agreement will earlier terminate:
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a.
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automatically
if Licensee becomes bankrupt or insolvent and/or if the business of
Licensee is placed in the hands of a receiver, assignee, or trustee,
whether by voluntary act of Licensee or otherwise;
or
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b.
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upon
90 days written notice from Globotek, once a breach has occurred unless,
before the end of the 90 day period, Licensee has cured the default or
breach and so notifies Globotek, stating the manner of the cure;
or
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c.
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effective
180 days of such written agreement between the parties. 6.4 If this
Agreement is terminated for any
cause:
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a.
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nothing
herein will be construed to release either party of any obligation matured
prior to the effective date of the
termination;
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b.
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after
the effective date of the termination, Licensee may sell all Licensed
Products and parts thereof it has on hand at the date of termination;
and
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c.
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Licensee
will be bound by the provisions of Articles 7 (Indemnification), 8 (Use of
Globotek and Component's Name), and 9 (Confidential Information) of this
Agreement.
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7. ASSIGNMENT
Except in
connection with the sale of substantially all of Licensee's assets to a third
party, this Agreement may not be assigned by Licensee without the prior written
consent of Globotek, which will not be unreasonably withheld.
8.
INDEMNIFICATION AND INSURANCE
8.1
Licensee agrees to hold harmless and indemnify Globotek, officers, employees and
agents from and against any claims, demands, or causes of action whatsoever,
including without limitation those
arising
on account of any injury or death of persons or damage to property caused by, or
arising out of, or resulting from, the exercise or practice of the license
granted hereunder by Licensee, its Affiliates or their officers, employees,
agents or representatives, this indemnity specifically excludes acts of
negligence or malicious intent.
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8.2 In no
event shall Globotek be liable for any indirect, special. consequential or
punitive damages or for injury to persons or property arising out of or in
connection with this Agreement or its subject matter, regardless of whether
Globotek knows or should know of the possibility of such damages.
8.3
Insurance
Beginning
at the time when any Licensed Subject Matter is being distributed or sold
(including for the purpose of obtaining regulatory approvals) by Licensee or by
a sublicensee, Licensee shall in consultation with its insurance advisors, seek
to determine what levels of additional risk Globotek may incur through the
implementation of this agreement and thereby determine what level of commercial
general liability insurance is appropriate to maintain. Should it be determined
that additional insurance, to that maintained in the general course of
Licensee's business.
be procured, and such limits be available to the Licensee at reasonable
commercial rates, from a suitable insurance provider, then such additional
limits will be procured and maintained by the Licensee at its sole cost and
expense. 1 this case,
Licensee shall use reasonable efforts to have the Globotek, APG System,
Globotek, its officers, employees and agents named as additional insureds, and
that such commercial general liability insurance shall provide (i) product
liability coverage; (ii) broad fotm contractual liability coverage for
Licensee's indemnification under this Agreement; and (iii)
coverage
for litigation costs. The minimum amounts of insurance coverage required shall
not be construed to create a limit of Licensee's liability with respect to its
indemnification under this Agreement. Should such additional insurance be
procured, the Licensee shall maintain such additional commercial general
liability insurance beyond the expiration or termination of this Agreement
during (i) the period that any Licensed Subject Matter developed pursuant to
this Agreement is being commercial distributed or sold by Licensee or by a
sublicensee or agent of Licensee; and (ii) the five (5) year period immediately
after such period.
9. USE
OF GLOBOTEK AND COMPONENT'S NAME
Licensee
may not use the name of Globotek without express written consent.
10. CONFIDENTIAL
INFORMATION AND PUBLICATION
10.1
Globotek and Licensee each agree that all information contained in documents
marked "confidential" and forwarded to one by the other (i) be received in
strict confidence, (ii) be used only for the purposes of this Agreement, and
(iii) not be disclosed by the recipient party, its agents or employees without
the prior written consent of the other party, except to the extent that the
recipient party can establish competent written proof that such
information:
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a.
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was
in the public domain at the time of
disclosure;
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b.
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later
became part of the public domain through no act or omission of the
recipient party, it's employees, agents, successors or
assigns;
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c.
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was
lawfully disclosed to the recipient party by a third party having the
right to disclose it;
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d.
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was
already known by the recipient party at the time of
disclosure;
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e.
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was
independently developed by the recipient;
or
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f.
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is
required by law or regulation to be
disclosed.
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10.2 Each
party's obligation of confidence hereunder shall be fulfilled by using at least
the same degree of care with the other party's confidential information as it
uses to protect its own confidential information_ This obligation shall exist
while this Agreement is in force and for a period of 3 years
thereafter.
11. ALTERNATE
DISPUTE RESOLUTION
Any
dispute or controversy arising out of or relating to this Agreement, its
construction or its actual or alleged breach will be decided by mediation. If
the mediation does not result in a resolution of such dispute or controversy, it
will be finally decided by an appropriate method of alternate dispute
resolution, including without limitation, arbitration, conducted in the United
Kingdom. The arbitration panel will include members knowledgeable in the
evaluation of APG processing technology. Judgment upon the award rendered may be
entered in the highest court or forum having jurisdiction. The provisions of
this Article 10 will not apply to any dispute or controversy as to which any
treaty or law prohibits such arbitration. The decision of the arbitration must
be sanctioned by a court of law having jurisdiction to be binding upon and
enforceable by the parties.
12. GENERAL
12.1 This
Agreement constitutes the entire and only agreement between the parties for
Licensed Subject Matter and all other prior negotiations, representations,
agreements, and understandings are superseded hereby. No agreements altering or
supplementing the terms hereof may be made except by a written document signed
by both parties.
12.2 This
Agreement has been reviewed and was approved by Russian counsel, Xx. Xxxxx
Xxxxxxx, on behalf of Globotek, and indicated that it is in accordance with the
Laws of the Russian Federation.
12.3 Any
notice required by this Agreement must be given by prepaid, first class,
certified mail, return receipt requested, addressed to:
GLOBOTEK
Office
address: 00, Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx xxxxxx, Xxxxxx
Attention:
Xxxxxxxxx Xxxxxxxxx
For mail:
X.X.X.0000, Xxxxxxxxx, 000000 Xxxxxx
Tel/fax.x0
000 0000000 (multiline)
e-mail:
xxxxxxxxx@xxxxxxxx.xx
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or in the
case of Licensee to:
Energy
Network Limited (IOM)
1st
Floor, Arbory House, 41 Arbory
Street,
Castletown, Isle of Man, British Isles, IM9 1 LL.
AIIENTION:
Xxxxxx Xxxxxxx Xxxxxx
PHONE:
x00 (0) 000 000 0000
FAX: x00
(0) 000 000 0000
or other
addresses as may be given from time to time under the terms of this notice
provision,
12.3
Licensee must comply with all applicable laws and regulations in connection with
its activities pursuant to this Agreement.
12.4 This
Agreement will be construed and enforced in accordance with the laws of the
United Kingdom.
12.5
Failure of either party to enforce a right under this Agreement will not act as
a waiver of that right or the ability to later assert that right relative to the
particular situation involved.
12.6
Headings are included herein for convenience only and shall not be used to
construe this Agreement.
12.7 If
any part of this Agreement is for any reason found to be unenforceable, all
other parts nevertheless remain enforceable.
13.
OBLIGATIONS AND REPRESENTATIONS AND WARRANTIES
13.1
GLOBOTEK hereby represents and warrants to Licensee that (a) GLOBOTEK has full
legal right, power and authority to execute, deliver and perform its obligations
under this Agreement and (b) this Agreement constitutes a valid and binding
agreement of GLOBOTEK, enforceable against GLOBOTEK in accordance with its
terms.
13.2
Licensee hereby represents and warrants to GLOBOI EK that (a) Licensee has full
legal right, power and authority to execute, deliver and perform its obligations
under this Agreement and (b) this Agreement constitutes a valid and binding
agreement of Licensee, enforceable against Licensee in accordance with its
terms.
13.3 The
representations and warranties contained herein shall survive the execution,
delivery and performance of this Agreement by the parties, notwithstanding any
investigation at any time made by or on behalf of any party or
parties.
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14. WARRANTY
AND DISCLAIMER OF WARRANTIES
14.1 Each
party represents and warrants that it will not assume any contractual obligation
that prevents such party from performing its obligations or conflicts with the
rights and licenses granted in this Agreement.
14.2 THE
FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABLITIY AND FITNESS FOR ANY PARTICULAR PURPOSE, EVEN IF HARVEST HAS BEEN
MADE AWARE OF SUCH PURPOSE, AND THE WARRANTY AGAINST INFRINGEMENT OF PATENTS OR
OTHER INTELLECTUAL PROPERTY RIGHTS.
15. GENERAL
15.1 Each
party is an independent contractor. Neither party is, nor will claim to be, a
legal representative, partner, franchisee, agent or employee of the other.
Neither party will assume or create obligations for the other. Each party is
responsible for the direction and compensation of its employees.
15.2 Any
notice required or permitted to be made by either party to this Agreement must
be in writing and will be properly delivered when personally delivered or upon
confirmation of receipt of a certified mailing to the other party at its address
as set forth in the beginning of this Agreement.
15.3
Nothing contained herein shall be construed as granting or conferring by
implication, estoppel or otherwise any license or right under any patent,
trademark, copyright or other intellectual property right.
15.4
Neither party has any right or license to use in advertising, publicity,
promotion, marketing, or other similar activity, any name, trade name,
trademark, or other designation including any abbreviation, contraction or
simulation of the other without the prior written permission of the other
party.
15.5 The
headings of this Agreement are for reference only. They will not affect the
meaning or interpretation of this Agreement.
15.6 This
Agreement may be signed in one or more counterparts, each of which will be
considered an original, but all of which together form one and the same
instrument.
15.7 For
a change to this Agreement to be valid, both parties must sign it. No approval,
consent or waiver will be enforceable unless signed by the granting party.
Failure to insist on strict performance or to exercise a right for a breach when
entitled does not prevent a party from doing so later for that breach or a
future one.
15.8 No
waiver of any breach of this Agreement shall constitute a waiver of any prior,
concurrent or subsequent breach of the same or any other provision
hereof.
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15.9 If
any provision or portion of a provision of this Agreement is held invalid or
unenforceable, the remainder of the Agreement shall not be affected, and the
remaining terms will continue in effect and be binding on the parties, provided
that such holding of invalidity or unenforceability does not materially affect
the essence of the Agreement.
15.10
Neither Party shall be liable to the other for non-compliance with any provision
of this Agreement if the non-compliance resulted directly from any cause beyond
the reasonable control of the Party.
15.11
This Agreement must be construed and enforced according to the laws of the
United Kingdom without regard to those laws relating to conflict of laws. All
disputes arising hereunder or with respect hereto shall be brought and
maintained in the federal courts of the United Kingdom and each party agrees to
be subject to the jurisdiction of such courts for such purpose.
IN
WITNESS WHEREOF, parties hereto have caused their duly authorized
representatives to execute this Agreement
| GLOBOTEK HOLDINGS, INC. | LICENSEE - Ene Network Limited (IOM) | |||
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/s/
Xxxxxxx
Xxxxx
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/s/ Xxxxxx Xxxxxxx
Xxxxxx
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Name:
Xxxxxxx
Xxxxx
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Name:
Xxxxxx
Xxxxxxx Xxxxxx
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Title:
CEO
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Title:
Director
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| Date: 24 February 2010 | Date: 24 February 2010 |
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ATTACHMENT
1
DESCRIPTION
OF THE LICENCED PROPERTY
See
attached certificates and documents supporting Globotek's ownership of the
Licensed Property.
SCHEDULE
A
LICENCED
TERITORY
Countries:
Nigeria
ROYALTY
PAYMENTS
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Countries: Nigeria - 10%
of Net Sales for Licensed Products.
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