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EXHIBIT 10.10
THIS AGREEMENT is made the 1st day of July, 1996
BETWEEN:
(1) Duplex CSA Limited of Registered Office 00 Xxxxxxxxx Xxxxxx, Xx. Xxxxx,
Xxxxxxxxxxxxxx, XX00 0XX ("Duplex");and
(2) Radio Systems Corporation of 0000, Xxxxxxxx Xxxxx, Xxxxxxxxx, XX 00000
("Radio")
IT IS NOW AGREED AS FOLLOWS:
1. Definitions
In this agreement the following terms shall have the following meanings:
"the Intellectual Property" All copyright, design rights whether
registered or not, patents, whether
registered or not, trademarks and trade
names whether registered or not, know how,
confidential information and all such like
rights in the Product and the Trade Name and
the New Trade Name used in relation to the
Product and shall include the applications
for the Patents specified in Schedule 1 of
this Agreement.
"the Product" The product described in the Patent
specification attached at Schedule 2 of this
Agreement and known as "petfinder" and
including the Intellectual Property.
"the Territory" North America.
"Royalty" The payments to be made to Duplex by Radio
under this Agreement.
"the Trade Name" Pet Finder.
"the New Trade Name" Any trade name developed under clause 8.1 of
the Agreement.
"the Agreement Year" 1 July to 30 June in each year that the
Agreement is in force.
2. Background
2.1. Duplex is the sole owner of the Product.
2.2. Radio has requested a license to use the Product in order to
manufacture, market and sell the Product in the Territory.
2.3 Duplex has agreed to grant such a license to Radio on the terms set out
in this Agreement.
3. Grant
3.1 In consideration of the obligations undertaken by Radio under this
agreement Duplex grants to Radio an exclusive license do the following
acts:
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3.1.1. To manufacture, market and sell the Product in the Territory.
3.1.2. To use the Trade Name in connection with the manufacture,
marketing and sale of the Product.
4. Term and Quantity
4.1. This agreement shall commence on 1 July 1996 and shall extend for an
initial period of 5 years.
4.2. If by 30 June of each Agreement year Radio has failed to sell the
number of units of the Product specified in Schedule 3 of this
Agreement Duplex shall be entitled to terminate this Agreement by
giving 28 days written notice to Radio.
4.3. The numbers specified in Schedule 3 of this Agreement shall be agreed
between Duplex and Radio by July 31 in each Agreement Year, the agreed
figure to be inserted in the Schedule and signed by both parties.
5. Royalties
5.1. In consideration for the rights granted by Duplex to Radio, Radio shall
pay to Duplex a royalty of $0.60 on the selling price of each unit of
the Product sold by Radio.
5.2. Within 30 days of the expiration of each quarter Radio shall deliver a
statement to Duplex detailing all sales of the Products during the
quarter and showing the total Royalty payable to Duplex and at the same
time Radio shall deliver to Duplex a remittance for the full amount of
that Royalty.
5.3. Radio shall permit Duplex or its representatives from time to time to
examine Radio's books in so far as they relate to the sales of the
Products.
6. Quality
6.1. Radio shall manufacture the Products in line with specifications that
are provided by Duplex and at all times Radio shall ensure that the
Products are of the highest quality attainable within these
specifications.
6.2. Radio shall, before distribution of the Products send at its own
expense samples of the Products and their packaging to Duplex for its
approval and Radio shall not distribute the Products until it has
received written approval from Duplex of the samples.
6.3. Radio shall ensure that all other units of the Products including their
packaging correspond to the samples approved by Duplex under Clause
6.2.
6.4 Radio shall acquire Product Liability Insurance of not less than
$1,000,000 per claim in each case.
7. Intellectual Property
7.1. The Intellectual Property shall be protected as follows:
7.2. The packaging of every unit of the product shall bear the words "Patent
Pending Us No. 08/586,344".
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7.3. Every use of the Trade Name on the packaging of the Product or any
other use of the Trade Name shall include the trademark symbol - thus
"Pet Finder".
7.4. Radio shall not use the Trade Name or the New Trade Name as part of its
own name or the name of an entity associated with it without Duplex's
prior written consent.
7.5. Radio shall not at any time during the subsistence of this Agreement or
at any other time register or use any of the Intellectual Property in
its own name as proprietor.
7.6. Radio recognizes Duplex's right to the Intellectual Property and shall
not claim any right, title or interest in the Intellectual Property or
any part of it save as granted by this Agreement.
7.7. Radio shall call to Duplex's attention any use of the Intellectual
Property or any part thereof by any third party.
8. Trade name
8.1 It is agreed that Radio may develop a New Trade Name for the product.
If it is agreed between Radio and Duplex (such agreement to be recorded
in writing) that the New Trade Name shall be used in relation to the
Product, all provisions in this Agreement which refer to the Trade Name
shall apply to the New Trade Name.
8.2 Duplex shall have the right to use the New Trade Name in the UK and all
goodwill in the New Trade Name shall be held by Radio as bare trustee
for Duplex.
9. Sales at a Discount and Gifts
9.1 Radio shall not sell or otherwise dispose of any of the Products to any
person or persons at less than $0.60 per unit unless it has obtained
Duplex's written consent.
9.2 Notwithstanding Clause 9.1 Radio shall be entitled to provide a limited
number of samples to prospective customers free of charge.
10. Assignment and Sub licensing
10.1 Radio shall not assign the benefit of this Agreement or grant any Sub`s
without Duplex's prior written consent.
10.2 Duplex shall have the right to assign the benefit of this Agreement,
any goodwill in the Product and the Intellectual Property to any third
party.
11. Actions Against Third Parties
11.1 Radio and Duplex both have the right to take independent action against
third parties in respect of the Intellectual Property but before taking
any such action shall discuss with each other in good faith (such
discussions to be reduced to writing to avoid any later confusion):
11.1.1 whether to proceed with any action against the third party; and
11.1.2 how the cost and financial benefit of such proceedings should be
apportioned between Duplex and Radio; and
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11.1.3 how such actions should commercially be undertaken.
11.2 In the event that Radio and Duplex fail to agree the matters under
Clause 11.1 above then either party may, at its own cost, take action
as it considers fit and any financial benefit arising therefrom shall
belong to such party and in which event each party undertakes with the
other to cooperate in the production of materials and information.
12. Trademark
In the event that Duplex or Radio wish to obtain registration of the
Trade Name or the New Trade Name referred to at clause 8 above the
parties will discuss in good faith who shall bear the costs of such
registration.
13. Termination
13.1 The following breaches are fundamental breaches and will entitle Duplex
forthwith to give notice terminating this Agreement and thereupon this
Agreement shall absolutely terminate and cease to have effect but
without prejudice to the rights and remedies of Duplex in respect of
the breach or any antecedent breach by Radio of any of its obligations
under this agreement:
13.1.1 failure on Radio's part to pay Duplex under this Agreement for
21 days after payment is due
13.1.2 failure on Radio's part to perform any of its obligations
under this Agreement
13.1.3 the voluntary or compulsory liquidation of Radio or the
appointment of a receiver over its assets
13.2 On termination of this Agreement by expiration of time or otherwise
Radio will pay to Duplex the balance of any royalties due up to the
date of termination.
13.3 On termination of this agreement Radio shall discontinue all use of the
Intellectual Property and all remaining stocks of the Products may be
disposed of by Radio in compliance with the terms of this agreement but
not otherwise. Any Products in the course of manufacture at the date of
termination may be completed within 120 days and disposed of in
compliance with the terms of this Agreement but not otherwise.
14. General
14.1 This agreement constitutes the whole and only agreement between the
parties and supersedes and extinguishes any other agreement whether
written or oral
14.2 No waiver by Duplex of any of Radio's obligations under this agreement
shall be deemed to constitute a waiver of any subsequent obligation by
Radio nor shall any consent to any breach of Radio's obligations under
this Agreement constitute consent to any subsequent breach by Radio of
its obligations.
14.3 If at any time any provision of this agreement is or becomes illegal,
invalid or unenforceable in any respect, that shall not affect the
legality or validity or enforceability of any other provision of this
Agreement.
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14.4 Nothing in this agreement shall be deemed to constitute a partnership
between the parties and neither of the parties shall do or suffer to be
done anything whereby it may be represented as a partner of the other
party
14.0 Notices given under this Agreement must be given in writing to the
address of the parties at the following addresses or (in the case of
notices transmitted by facsimile) to the numbers set out below:
Duplex Address: X.X. Xxx 00
Xx. Xxxxx
Xxxxxxxxxxxxxx
XX00 XXX
XX
Fax: 00 00000 000000
Radio Address: 0000, Xxxxxxxx Xxxxx
Xxxxxxxxx
XX 00000
XXX
Fax: 00 000 000 0000
14.6 This Agreement shall be binding upon and inure to the benefit of Duplex
and its successors and assigns
14.7 This Agreement shall be governed by and construed in accordance with
the Laws of England and Wales and the parties submit to the non -
exclusive jurisdiction of the English Courts.
14.8 RSC will have the right to remedy any infractions within 90 days of
written notice by DCSA.
IN WITNESS WHEREOF this agreement has been executed the day and year first
before written
SIGNED BY XXXXXXX XXXXX )
for and on behalf of) )
Duplex CSA Limited )
SIGNED BY XXXXX XXXX )
for and on behalf of) ) /s/ Xxxxx Xxxx
Radio Systems Corporation )
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