Exhibit 10.22
MED ENCLOSURE, L.L.C
TECHNOLOGY LICENSE
(AGREEMENT # 00001)
This agreement ("Agreement"), effective as of , October 29, 2002 ("Effective
Date"), by and between Licensee Med Close Corp., a Nevada corporation, with its
principal place of business at 0000 00xx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
00000 ("LICENSEE"), and Med Enclosure, L.L.C, a Nevada limited liability
company, with an office at 0000 00xx Xxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx
34326("LICENSOR").
BACKGROUND
LICENSOR has rights and interests in existing LICENSED PATENTS; and
LICENSEE has represented to LICENSOR that LICENSEE is experienced in
the development of products similar to the technology which is the subject of
this Agreement; that, either by itself or through third parties, it has the
financial capacity and the strategic commitment to facilitate the production,
marketing and distribution of such technology; and furthermore, that it is
ready, willing and able to do so; and
LICENSEE desires to obtain a license to said LICENSED PATENTS in the
TERRITORY for the FIELD OF USE, and LICENSOR desires to grant such license, upon
the terms and conditions hereinafter set forth.
In consideration of the mutual covenants herein contained and intending
to be legally bound hereby, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 "AFFILIATES" shall mean any person or entity that controls, is controlled,
or is under common control with Licensee, directly or indirectly. For purposes
of this definition, "control" and its various inflected forms shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person or entity, whether
through ownership of voting securities by contract or otherwise.
1.2 "CHANGE OF CONTROL" shall mean the consummation of a reorganization, merger
or consolidation or sale or other disposition of substantially all of the assets
of LICENSEE or (b) the acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1933, as amended) of beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 50% of either (i) the then outstanding
commons securities of LICENSEE; or (ii) the combined voting power of the then
outstanding voting securities of LICENSEE entitled to vote generally in the
election of directors or persons serving in similar capacities as directors.
1.3 DEVELOPMENT AND MARKETING COSTS" shall mean the documented costs and
expenses of Licensee actually incurred in connection with achieving the
milestones set forth in subsections (a) through (e), inclusive, of Section 3.3.
hereof to the extent such costs and expenses have been approved by Licensor.
1.4 "FIELD OF USE" shall have the meaning ascribed to such term on APPENDIX B.
1.5 "LICENSED METHOD" shall mean any method, procedure, process or other subject
matter, the manufacture, use or sale of which is covered by any claim or claims
included within the LICENSED PATENTS.
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1.6 ". . .covered by . . ." means a LICENSED PRODUCT that, when made, used or
sold, or a LICENSED METHOD that, when practiced, would constitute, but for the
license granted to LICENSEE pursuant to this Agreement, an infringement of any
claim or claims included with LICENSED PATENTS.
1.7 "LICENSED PATENTS" shall mean patent rights to any subject matter claimed in
or covered by: (a) any pending or issued United States or foreign patent or any
patent application listed on APPENDIX A; (b) any continuing or divisional
applications thereof; and (iii) any patents issuing on continuing,
continuation-in-xxx or divisional applications, including reissues thereof.
1.8 "LICENSED PRODUCT(s)" shall mean any product, apparatus, kit or component
part, thereof, or any other matter the manufacture, use or sale of which is
covered by any claim or claims included within the LICENSED PATENTS.
1.9 "LICENSED METHOD" shall mean any method, procedure, process or other subject
matter, the manufacture, use or sale of which is covered by any claim or claims
included within the LICENSED PATENTS
1.10 "NET SALES" shall mean the gross sales price invoiced or received
(whichever occurs first) for (i) sales, leases, or other transfers of LICENSED
PRODUCTS or (ii) for services performed using the LICENSED PRODUCTS or the
LICENSED METHOD, in any case, received by LICENSEE, its AFFILIATES, or
sublicensees from any end user of the LICENSED PRODUCT or services performed
using the LICENSED PRODUCTS or the LICENSED METHOD, less (to the extent
appropriately documented) the following reasonable amounts:
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(a) credits and allowances for price adjustment, rejection, or
return of LICENSED PRODUCTS previously sold;
(b) rebates, quantity and cash discounts to purchasers allowed and
taken;
(c) amounts for third party transportation, insurance, handling or
shipping charges to purchasers;
(d) taxes, duties and other governmental charges levied on or
measured by the sale of LICENSED PRODUCTS or services
performed using and LICENSED METHOD, whether absorbed by
LICENSEE or paid by the purchaser so long as LICENSEE's price
is reduced thereby, but not franchise or income taxes of any
kind whatsoever; and
(e) DEVELOPMENT AND MARKETING COSTS.
NET SALES also includes the fair market value of any non-cash
consideration received by LICENSEE, AFFILIATE or sublicensee for the sale,
lease, or transfer of LICENSED PRODUCTS or services performed using LICENSED
PRODUCTS or the LICENSED METHOD. Transfer of a LICENSED PRODUCT or services
performed using any LICENSED METHOD within LICENSEE or between LICENSEE and an
AFFILIATE or sublicensee for sale by the transferee shall not be considered a
NET SALE for purposes of ascertaining royalty charges (except to the extent any
of the LICENSEE, such Affiliates or such sublicensees, is the end user of such
products or services).
1.11 "TERRITORY" shall mean world-wide.
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ARTICLE II
LICENSE GRANT AND RETAINED RIGHTS
2.1 Subject to the terms and conditions set forth herein, LICENSOR hereby grants
to LICENSEE a license solely in the FIELD OF USE under LICENSED PATENTS to make,
have made, use and sell any LICENSED PRODUCT and to practice any LICENSED METHOD
solely in the FIELD OF USE throughout the TERRITORY. Such license shall be
exclusive within the Territory in the FIELD OF USE.
2.2 LICENSOR retains the right to use all aspects of the LICENSED PATENTS (i)
outside of the FIELD OF USE, and (ii) within and without the FIELD OF USE
provided any such use within the FIELD OF USE is outside of the TERRITORY.
2.3 Licensee hereby agrees to grant to Licensor, free of payment of any royalty,
a nonexclusive license in and to any patent, for the life of that patent, to
manufacture, use, and sell any and all improvements or inventions in and to the
LICENSED PRODUCTS or the LICENSED METHODS, filed, obtained or acquired by
LICENSEE or under which it will have the right to grant such license.
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ARTICLE III
DUE DILIGENCE
3.1 LICENSEE, upon execution of this Agreement, shall diligently proceed with
the development, manufacture and sale of LICENSED PRODUCTS and/or services
performed using any LICENSED METHOD in the FIELD OF USE and shall earnestly and
diligently endeavor to market the same within a reasonable time after execution
of this Agreement and in quantities sufficient to meet market demands.
3.2 LICENSEE shall make best efforts to obtain all necessary governmental
approvals for the manufacture, use, marketing and sale of LICENSED PRODUCTS
and/or services performed using any LICENSED METHOD , including without
limitation all such necessary approvals from the U.S. Food and Drug
Administration (" FDA") .
3.3 As evidence of LICENSEE's best efforts, LICENSEE shall achieve at least the
following performance milestones within the designated time periods following
the Effective Date:
(a) [describe preclinical milestone] within two years from the
Effective Date;
(b) commence clinical trials [Phase I, II, etc., as appropriate]
in regard to at least one LICENSED PRODUCT and/or services
performed using any LICENSED METHOD within the FIELD OF USE
within three years from the Effective Date;
(c) submit a 510K or Pre-Market Approval ("PMA" ) application for
non-cardiology closing devices covering LICENSED PRODUCT
and/or services performed using and LICENSED METHOD within the
FIELD OF USE to FDA within five years from the Effective Date;
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(d) commence commercial sales of a LICENSED PRODUCT within the
FIELD OF USE within six years from the EffectiveDate;
(e) reasonably fill the market demand for LICENSED PRODUCTS within
the FIELD OF USE following commencement of commercial sales.
If LICENSEE has failed to meet any of the above provisions, then
LICENSOR may immediately at LICENSOR's option either (i) terminate this
Agreement upon written notice to LICENSEE, or (ii) terminate the exclusive
element of the license granted in Article II, in which case such license would
be non-exclusive. This right, if exercised by LICENSOR, supersedes the rights
granted in Article II.
3.4 Notwithstanding the foregoing, LICENSEE may extend the due date of any given
performance milestone for a period of two years upon payment of $100,000 for the
first year and $50,000 for each subsequent year up to a maximum of three years.
Such payments shall be paid upon the due date of each performance milestone, and
for any subsequent years, upon each anniversary of such performance milestone.
ARTICLE IV
PAYMENTS
4.1 LUMP-SUM LICENSE PAYMENT. In partial consideration for the license granted
hereunder and upon execution of this Agreement, LICENSEE agrees to pay to
LICENSOR the sum of XXX XXXXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS (US $100,000)
(the "LUMP-SUM LICENSE PAYMENT")..
4.2 ROYALTY. In partial consideration for the license granted hereunder,
LICENSEE shall pay to LICENSOR royalties of four percent ( 4%) on NET SALES of
LICENSED PRODUCTS or services performed using any LICENSED PRODUCT or LICENSED
METHOD from the date of first commercial sale of such LICENSED PRODUCTS or
services performed using such LICENSED PRODUCT or LICENSED METHOD.
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4.3 SUBLICENSING. In partial consideration for the license granted hereunder,
LICENSEE shall pay the following amounts:
(a) With respect to sublicenses granted under this Agreement,
LICENSEE shall pay to LICENSOR four percent (4%) of all fees
and lump sum payments, including but not limited to technology
access fees and license issue fees.
(b) From any royalties received from its sublicensee, LICENSEE
shall pay LICENSOR such amounts equivalent to the sum LICENSOR
would otherwise have received in royalties if LICENSED
PRODUCTS were sold by LICENSEE directly.
(c) On sales between LICENSEE and its AFFILIATES or sublicensees
for resale, the royalty shall be paid on the NET SALES of the
AFFILIATE or sublicensee.
4.4 COMBINATION PRODUCT. In the event that a LICENSED PRODUCT or a service using
any LICENSED PRODUCT or any LICENSED METHOD under this Agreement is sold in a
combination package or kit containing other active products, then NET SALES for
purposes of determining royalty payments with respect thereto, shall be
calculated using the following methods below, but in no event shall the
royalties payable to LICENSOR be reduced to less than fifty percent (50%) of
that provided for in Sections 4.2 and 4.3 hereof:
(a) By multiplying the net selling price of that combination
package or kit by the fraction A/A+B, where A is the gross
selling price, during the royalty-paying period in question,
of the LICENSED PRODUCT or service using the LICENSED PRODUCT
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or the LICENSED METHOD sold separately, and B is the gross
selling price during the royalty period in question, of the
other active agents sold separately; or
(b) In the event that no such separate sales are made of the
LICENSED PRODUCT or service using the LICENSED PRODUCT or the
LICENSED METHOD or any of the other active agents in such
combination package or kit during the royalty-paying period in
question, NET SALES for the purposes of determining royalty
payments, shall be calculated by dividing the net selling
price of the combination package by the number of functions
performed by the combination package where such package
contains active agents other than those licensed under this
Agreement.
4.5 Payment of royalties specified in Section 4.3 shall be made by LICENSEE to
LICENSOR within forty-five (45) days after March 31, June 30, September 30 and
December 31 each year during the term of this Agreement. If no royalties are
due, LICENSEE shall so report. The last such payment shall be made within
forty-five (45) days after termination of this Agreement.
4.6 LICENSEE shall pay the patent maintenance fees as required by Article VI.
4.7 All payments to be made under this Article IV shall be paid by check or wire
transfer in United States Dollars in Sarasota, Florida, or at such other place
and in such other way as LICENSOR may reasonably designate (as to payments due
to each such person or entity), without deduction of exchange, collection or
other charges. Such payments shall be deemed received when funds are credited to
LICENSOR's bank account. Conversion of foreign currency to U.S. dollars shall be
made at the conversion rate existing in the United States (as reported in the
New York Times or the Wall Street Journal) on the last working day of each
royalty period.
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4.8 In the event that any payment due hereunder is not made when due, the
payment shall accrue interest beginning on the first day following the due date
as herein specified, calculated at the rate of 18% per annum (or if such rate
exceeds the maximum rate of default interest permitted by law, then such at such
maximum rate of interest). LICENSOR shall not be precluded from exercising any
other rights it may have as a consequence of the lateness of any payment.
ARTICLE V
REPORTS AND RECORDS
5.1 PROGRESS REPORT
(a) Prior to signing this Agreement, LICENSEE has provided to
LICENSOR a written research and development plan under which
LICENSEE intends to bring the subject matter of the licenses
granted hereunder into commercial use upon execution of this
Agreement. Such plan includes projections of sales and
proposed marketing efforts.
(b) No later than ninety (90) days after December 31 of each
calendar year, LICENSEE shall provide to LICENSOR a written
annual progress report describing progress on research and
development, regulatory approvals, manufacturing,
sublicensing, marketing and sales during the most recent
twelve (12) month period ending December 31 and plans for the
forthcoming year. If multiple technologies are covered by the
license granted hereunder, the progress report shall provide
the information set forth above for each technology. LICENSEE
shall also provide any reasonable additional data LICENSOR
requires to evaluate LICENSEE's performance.
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5.2 ACCOUNTING
(a) LICENSEE shall keep, and shall cause its AFFILIATES and
sublicensees to keep full and accurate books of account in
accordance with generally accepted accounting principles and
containing sufficient detail to enable LICENSOR to determine
the royalty and other amounts payable to LICENSOR, XXXXXXX AND
CTM under this Agreement. Said books of account shall be kept
at LICENSEE's principal place of business or the principal
place of business of the appropriate division of LICENSEE to
which this Agreement relates. The provision of this Article
5.2 shall survive termination of the Agreement.
(b) Said books and the supporting data shall be available for
inspection by a. certified public accountant during regular
business hours for at least five (5) years following the end
of the calendar year to which they pertain. Such inspection is
to be made by LICENSOR, at the expense of LICENSOR, except in
the event that the results of the audit reveal a discrepancy
in LICENSEE's favor of five percent (5%) or more, then the
audit fees shall be paid by LICENSEE.
5.3 ROYALTY REPORT
(a) After first commercial sale, within forty-five (45) days after
the end of each calendar quarter, LICENSEE shall deliver to
LICENSOR a written report. These reports shall include at
least the following information:
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(i) Quantity of each LICENSED PRODUCT sold (by country)
by LICENSEE, its AFFILIATES and sublicensees;
(ii) Total NET SALES for each LICENSED PRODUCT and service
using the LICENSED PRODUCT or the LICENSED METHOD (by
country) detailing any applicable deductions as
provided in paragraph 1.8;
(iii) Names and addresses of all sublicensees of LICENSEE;
and
(iv) Total royalties payable to LICENSOR.
ARTICLE VI
PATENT FILING AND MAINTENANCE
LICENSOR and LICENSEE shall cooperate fully in the preparation, filing,
prosecution and maintenance of LICENSED PATENTS for the benefit of LICENSOR and
of all patents and patent applications licensed to LICENSEE hereunder. LICENSEE
shall fully reimburse LICENSOR for all patent renewal and maintenance fees with
respect to the LICENSED PATENTS within the TERRITORY. Each party shall provide
to the other prompt notice as to all matters which come to its attention and
which may affect the preparation, filing, prosecution or maintenance of any such
patent applications or patents.
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ARTICLE VII
INFRINGEMENT
7.1 LICENSEE and LICENSOR shall each inform the other promptly in writing of any
alleged infringement by a third party of LICENSED PATENTS in the TERRITORY and
FIELD OF USE.
7.2 In the event that a declaratory judgment action alleging invalidity of any
of the LICENSED PATENTS shall be brought against LICENSEE or LICENSOR, LICENSOR,
at its sole option, shall have the right to intervene and take over the sole
defense of the action at its own expense.
ARTICLE VIII
WARRANTIES AND INDEMNIFICATION
8.1 NO WARRANTIES ON PATENT VALIDITY. LICENSOR does not represent or warrant as
to the validity of the LICENSED PATENTS licensed hereunder and makes no
representations or warranties whatsoever with regard to the scope of such
LICENSED PATENTS or that such LICENSED PATENTS may be exploited by LICENSEE, an
AFFILIATE, or sublicensee without infringing other patents.
8.2 LICENSOR EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED OR EXPRESS WARRANTIES AND
MAKES NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OF THE LICENSED PATENTS OR INFORMATION, IF ANY, SUPPLIED BY
LICENSOR WITH RESPECT TO ANY LICENSED METHODS OR LICENSED PRODUCTS CONTEMPLATED
BY THIS AGREEMENT.
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8.3 INDEMNIFICATION AND INSURANCE.
(a) LICENSEE shall indemnify, defend and hold harmless each of
LICENSOR, XXXXXXX and CTM and each of their current or former
directors, governing board members, trustees, officers,
medical and professional staff, employees, sand agents and
their respective successors, heirs and assigns (collectively,
the "Indemnitees"), against any claim, liability, cost,
damage, deficiency, loss, expense, or obligation of any kind
or nature (including without limitation, reasonable attorneys'
fees and other costs and expenses of litigation) based upon,
arising out of, or otherwise relating to this Agreement,
including without limitation any cause of action relating to
product liability concerning any product, process, or service
made, used or sold pursuant to any right or license granted
under this Agreement.
(b) LICENSEE shall, at its own expense, provide attorneys
reasonably acceptable to LICENSOR to defend against any
actions brought or filed against any Indemnitee (and to
represent Indemnitee) hereunder with respect to the subject of
indemnity contained herein, whether or not such actions are
rightfully brought.
(c) Beginning at the time any product, process or service
developed in connection with this Agreement is being
commercially distributed or sold (other than for the purpose
of obtaining regulatory approvals) by LICENSEE or by a
sublicensee, AFFILIATE or agent of LICENSEE, LICENSEE shall,
at its sole cost and expense, procure and maintain commercial
general liability insurance in amounts not less than
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$2,000,000 per incident and $2,000,000 annual aggregate and
naming the Indemnitees as additional insureds. During clinical
trials of any such product, process or service, LICENSEE
shall, at its sole cost and expense, procure and maintain
commercial general liability insurance in such equal or lesser
amount as LICENSOR shall require, naming the Indemnitees as
additional insureds. Such commercial general liability
insurance shall provide (i) product liability coverage and
(ii) broad form contractual liability coverage for LICENSEE's
indemnification under this Agreement. If LICENSEE elects to
self-insure all or part of the limits described above
(including deductibles or retentions which are in excess of
$250,000 annual aggregate) such self-insurance program must be
acceptable to LICENSOR in its sole discretion. 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.
(d) LICENSEE shall provide LICENSOR with written evidence of such
insurance upon request of LICENSOR. LICENSEE shall provide
LICENSOR with written notice at least fifteen (15) days prior
to the cancellation, non-renewal or material change in such
insurance; if LICENSEE does not obtain replacement insurance
providing comparable coverage within such fifteen (15) day
period, LICENSOR shall have the right to terminate this
Agreement effective at the end of such fifteen (15) day period
without notice or any additional waiting periods.
(e) LICENSEE shall maintain such commercial general liability
insurance beyond the expiration or termination of this
Agreement during (i) the period that any product, process, or
service, relating to, or developed pursuant to, this Agreement
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is being commercially distributed or sold by LICENSEE or by a
sublicensee, AFFILIATE or agent of LICENSEE and (ii) a
reasonable period after the period referred to in (e)(i) above
which in no event shall be less than fifteen (15) years.
(f) This Article VIII shall survive expiration or termination of
this Agreement.
ARTICLE IX
COMPLIANCE WITH LAWS
LICENSEE shall comply with all applicable laws and regulations. In
particular, it is understood and acknowledged that the transfer of certain
commodities and technical data is subject to United States laws and regulations
controlling the export of such commodities and technical data, including FDA
statutes and regulations and Export Administration Regulations of the United
States Department of Commerce including the Export Administration Act of 1979
(50 App. U.S.C. ss.2401 et. seq.). These laws and regulations, among other
things, prohibit or require a license for the export of certain types of
technical data to certain specified countries. LICENSEE hereby agrees and gives
written assurance that it will comply with all United States laws and
regulations, and any applicable similar laws and regulations of any other
country, controlling the export of commodities and technical data, that it will
be solely responsible for any violation of such by LICENSEE and/or its
AFFILIATES. LICENSEE will defend and hold LICENSOR harmless in the event of any
legal action of any nature occasioned by such violation, whether by LICENSEE,
AFFILIATES or sublicensees.
ARTICLE X
NON-USE OF NAME
LICENSEE represents that it will not use the name or names or
trademarks of any Indemnitee, nor any adaptation of any of the foregoing, in any
advertising, promotional, or sales literature without obtaining in each case,
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prior written consent from LICENSOR and from the individual staff member,
employee, or student if such individual's name is used; other than in accordance
with the license agreement appended hereto as Appendix C. Notwithstanding the
above, LICENSEE may state that it is licensed by LICENSOR under one or more
patents and/or applications comprising the LICENSED PATENTS, and LICENSEE may
comply with disclosure requirements of all applicable laws relating to its
business, including United States and state securities laws. In addition,
LICENSEE may refer to publications by employees of LICENSOR in the scientific
literature.
ARTICLE XI
ASSIGNMENT
Without the prior written approval of LICENSOR, which approval shall
not be unreasonably withheld or delayed, neither (i) the license granted
pursuant to this Agreement, or (ii) any of LICENSEE's rights or obligations
under this Agreement, shall be transferred or otherwise assigned in whole or in
part by LICENSEE. Without the prior written approval of LICENSEE, which approval
shall not be unreasonably withheld or delayed, the LICENSOR shall not transfer
or otherwise assign in whole or in part, any of its obligations under this
Agreement. This Agreement shall be binding upon the successors, legal
representatives and assignees of LICENSOR and LICENSEE.
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ARTICLE XII
TERM AND TERMINATION
12.1 This Agreement, unless extended or terminated as provided herein, shall
remain in effect until the last patent or patent application in LICENSED PATENTS
has expired or been abandoned.
12.2 In the event LICENSEE fails to make payments due hereunder, LICENSOR shall
have the right to terminate this Agreement upon thirty (30) days written notice,
unless LICENSEE makes such payments plus interest within the thirty (30) day
notice period. If payments are not made, LICENSOR may immediately terminate this
Agreement.
12.3 In the event that LICENSEE shall default in the performance of any
obligations under this Agreement (other than as provided in Section 12.2 and
Article VIII which shall take precedence over any other default), and if the
default has not been remedied to LICENSOR's reasonable satisfaction within sixty
(60) days after the date of notice in writing of such default, LICENSOR may
terminate this Agreement by written notice.
12.4 LICENSOR shall have the right to terminate this entire Agreement
immediately upon giving LICENSEE written notice of such termination in the event
that LICENSEE becomes insolvent, makes an assignment for the benefit of
creditors, or shall have a petition in bankruptcy filed for or against it, or
any other dissolution or liquidation event of LICENSEE.
12.5 Any sublicenses granted by LICENSEE shall provide that upon termination of
this Agreement, the sublicense shall terminate or be assigned to LICENSOR, at
the option of LICENSOR.
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12.6 LICENSEE shall have the right to terminate this Agreement by giving six (6)
months advance written notice to LICENSOR and paying a termination fee of
$100,000.
12.7 LICENSEE shall provide LICENSOR with written notice of the occurrence of a
CHANGE OF CONTROL. LICENSOR shall have the right to terminate this Agreement
upon a CHANGE OF CONTROL.
12.8 Upon termination of this Agreement for any reason, nothing herein shall be
construed to release either party from any obligation that matured prior to the
effective date of such termination.
12.9 Sections 2.3, 5.2, 7.1, 7.2, 8.1, 8.2, 8.3, Articles XI and X of this
Agreement, and any and all obligations with respect to accrued by unpaid
payments under this Agreement, shall survive termination.
ARTICLE XIII
CONFIDENTIAL INFORMATION
13.1 LICENSEE agrees that all information which of a confidential nature which
LICENSEE derives from LICENSOR under the provisions of this Agreement or in
connection therewith, whether contained in blue prints, drawings, written
reports, letters or memoranda, or notes by employees, or acquired by employees
of LICENSEE from observations of machines, devices, processes or activities of
LICENSOR, or otherwise, shall be used solely in connection with the business of
LICENSEE as such relates to the development and marketing of LICENSED PRODUCTS
and/or LICENSED METHODS. LICENSEE agree that it will use all reasonable efforts
to prevent the use of all or part or any such information in any other
connection or the transmission thereof to third parties unless and until it has
first obtained the written consent of LICENSOR specifically authorizing such use
or transmission.
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13.2 LICENSEE covenants and agree that in the event of any unauthorized
disclosure and/or use of such information, it will promptly furnish all
information relative thereto and all evidence bearing thereon, in its possession
or available to it, to LICENSOR and will cooperate with LICENSOR in
investigating the same, and will, on request of LICENSOR, assist and participate
with LICENSOR in all reasonable ways in preparing for, bringing and prosecuting
appropriate legal action to enjoin such unauthorized disclosure and/or use and
to obtain full legal redress therefore, and will join LICENSOR as a party to any
such litigation, if LICENSOR so desires.
13.3 LICENSEE agree that it will use its best efforts to have all employees,
agents, and other representatives of LICENSEE and its AFFILIATES to whom
confidential information is imparted adhere to the restrictions set forth in
this Article XIII.
ARTICLE XIV
MISCELLANEOUS
14.1 The interpretation and application of the provisions of this Agreement
shall be governed by the laws of the State of Nevada. Except as otherwise
expressly provided in this Agreement, nothing contained in or pursuant to this
Agreement shall be construed as:
(a) granting any license or inferring any right by implication,
estoppel or otherwise, under any trade secrets, technical information, patent
application or patent;
(b) granting any sublicensing right; or
(c) imposing any obligation to carry out or forego any action in regard
to filing or prosecution of any patent application, the obtaining of any patent,
the maintaining of any patent in force, or the initiation or prosecution or any
interference or other contest of priority of invention;
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14.2 LICENSEE agrees:
(a) to utilize appropriate patent marking on such LICENSED
PRODUCTS and with respect to services using the LICENSED
PRODUCT or the LICENSED METHOD; and
(b) to register or record this Agreement as is required by law or
regulation in any country where the license is in effect.
14.3 Should a court of competent jurisdiction hold any provision of this
Agreement to be invalid, illegal, or unenforceable, and such holding is not
reversed on appeal, it shall be considered severed from this Agreement. All
other provisions, rights and obligations shall continue without regard to the
severed provision, provided that the remaining provisions of this Agreement are
in accordance with the intention of the parties.
14.4 This Agreement constitutes the entire understanding between the parties and
neither party shall be obligated by any condition or representation other than
those expressly stated herein or as may be subsequently agreed to by the parties
hereto in writing.
14.5 This Agreement includes the attached APPENDICES.
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In WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written:
LICENSEE LICENSOR
By: /S/ Xxx X. Xxxxxxx By: /S/ Xxx X. Xxxxxxx
--------------------- ---------------------
Name: Xxx X. Xxxxxxx Name: Xxx X. Xxxxxxx
Title: President & CEO Title: President & Managing Member
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APPENDIX A
LICENSED PATENTS
U.S. Xxx. No. 55941897
U.S. Xxx. No. 5486195; and
U.S. Xxx. No 5,725,551
A-1
APPENDIX B
FIELD OF USE
All FIELDS OF USE, except for and specifically excluding any applications,
devices or methods designed to seal arterial puncture sites following
angiography, angioplasty and/or other cardiac procedures.
B-1
APPENDIX C
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MED ENCLOSURE, LLC
INTELLECTUAL PROPERTY LICENSE AGREEMENT
This AGREEMENT is by and between , Med Enclosure, L.L.C a Nevada
limited liability company, with an office at 0000 00xx Xxxxxx Xxxxxx Xxxx,
Xxxxxxxx, Xxxxxxx 00000 ("MED ENCLOSURE"), and Licensee Med Close Corp., a
Nevada corporation, with its principal place of business at 0000 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxx 34326("LICENSEE), and is effective on October 29,
2002.
RECITALS:
A. Med Enclosure and Licensee have entered into that certain Technology License
dated of even date herewith to which this Agreement is appended (the "TECHNOLOGY
LICENSE"), pursuant to which among other things, Med Enclosure has licensed the
Licensed Patents to Licensee in the Field of Use in connection with the Licensed
Products and Licensed Methods. All capitalized terms not otherwise defined
herein shall have the meanings ascribed to them by the Technology License.
B. Med Enclosure is the owner of certain trademarks and service marks, including
the name and xxxx "Licensee" in connection with various medical devices and
medical procedures, along with the applications for registration relating
thereto.
C. The aforesaid intellectual property, including the name and xxxx "Licensee"
is of significant value to Med Enclosure.
D. Med Enclosure desires to license the xxxx "Licensee" to Licensee under the
terms set forth below.
E. Licensee wishes to use and sublicense the xxxx "Licensee" in connection with
the sale, marketing, and distribution of the Licensed Products and Licensed
Methods in the Field of Use.
F. Med Enclosure desires to protect the integrity of the name and xxxx
"Licensee" and to preserve its rights therein .
G. Licensee and Med Enclosure agree that certain restrictions on Licensee's use
of the xxxx is necessary to ensure that the xxxx is not diluted or subject to
disrepute in the course of Licensee's use and sublicensing of the xxxx and that
the rights of Med Enclosure and its ownership of the xxxx are preserved .
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NOW, THEREFORE, in consideration of the foregoing Recitals, the mutual
promises contained in this Agreement, ten dollars ($10.00), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the following
meanings:
a. "BOOKS AND RECORDS" shall mean such books and records required to fully and
accurately disclose the nature and details of all activities undertaken under
this Agreement, including, but not limited to, sales records, books of account,
records in which accurate entries shall be made reflecting all transactions
within the scope of this Agreement.
b. "BUSINESS DAY" shall mean Monday through Friday, exclusive of U.S. federal
holidays.
c. "EFFECTIVE DATE" shall be the date first set forth above, or if blank, the
latest date upon which a Party executes this Agreement.
d. "GOODS" shall mean the Licensed Products in the Field of Use and may be
modified as provided in Section 10 below.
e. "INITIAL TERM" shall have the meaning set forth in Section 4 below.
f. "LICENSE TERM" shall mean the period set forth in Section 4 below.
g. "MARKS" shall mean the trademarks and service marks, listed on Schedule I, as
it may be amended by the Parties from time to time.
h. "PARTY" and "Parties" shall refer to Med Enclosure and Licensee either
individually or collectively, as the context requires.
i. "ROYALTIES" will have the meaning set forth in Section 5 below.
j. "TECHNOLOGY LICENSE" shall have the meaning set forth in Recital A.
k. "SERVICES" shall mean the Licensed Methods in the Field of Use as may be
modified in accordance with Section 10 below.
l. "TERRITORY" shall mean world-wide.
2. GRANT.
During the License Term, Med Enclosure grants to Licensee, subject to
the terms and conditions of this Agreement, the exclusive limited right to use
and sublicense the use of the Marks in association with the Goods and Services
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in connection with the sale, marketing, and distribution of the Goods and
Services to the general public and retail trade in the Territory for the
purposes contemplated under the Services Agreement. All use of the Marks by
Licensee in the Territory during the License Term under this Agreement shall
inure to the benefit of Med Enclosure.
3. TERRITORY.
a. TERRITORIAL LIMITS OF LICENSEE RIGHTS. The rights granted to Licensee
hereunder extend only to the Territory. Licensee knows or has reason to believe
intends or is likely to resell such Goods or Services beyond the scope of the
Grant set forth in Section 2 above without the prior consent of Med Enclosure.
b. TERRITORIAL LIMITS OF MED ENCLOSURE RIGHTS. All rights to the use and
ownership of the Marks beyond the scope of the Grant are hereby retained
exclusively by Med Enclosure.
4. LICENSE TERM.
The "LICENSE TERM" means the period during which Med Enclosure is
authorizing Licensee and its sublicensees to use the Marks in the Territory. The
License Term begins on the effective date of the Technology License and
terminates on termination of the Technology License, unless earlier terminated
pursuant to Section 13 below ("INITIAL TERM"). Thereafter, this Agreement will
automatically renew for periods of 60 days, unless either Party provides the
other with 30-days' written notice of non-renewal. The "LICENSE TERM" therefore
shall include the Initial Term and any renewals thereof.
5. ROYALTIES.
Licensee will pay the Royalties identified on Schedule II, in
accordance with the terms contained thereon ("ROYALTIES").
6. QUALITY AND APPROVAL.
a. PURPOSE AND QUALITY CONTROL. The Parties recognize and acknowledge that the
distribution of Goods or the offering of Services of inferior quality under the
Marks may damage the business reputation of Med Enclosure and the Marks
themselves. Accordingly, in order to maintain the quality reputation of the
Marks, all Goods and Services and promotional or packaging material relating to
the Goods and Services to be sold under the Marks must be supplied by Nextel in
accordance with the Services Agreement or Nextel's approved suppliers or, have
Med Enclosure's approval, which approval will not be unreasonably withheld.
Approval shall be deemed withheld, unless Med Enclosure approves of a proposed
use of the Marks within ten business (10) days of receipt of a sample or
description of the proposed use. The Parties shall cause to appear on all
materials bearing the Marks such legends, markings, and notices as may
reasonably be required to put the public on notice of the claim of rights in the
Marks, as described more fully below in SECTION 14.
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b. QUALITY MAINTENANCE. Licensee shall not sell, market, distribute, or use for
any purpose any Goods or Services or promotional or packaging material relating
to the Goods or Services that are damaged, defective, or seconds, or not
otherwise meeting the quality standards set forth in this Agreement. This
limitation shall not be applied to prevent the sale of Goods of otherwise
sufficient quality, where those Goods or other material are refurbished. If any
such Goods or Services or promotional or packaging material relating to any
Goods or Services are damaged, defective, seconds, or otherwise fail to meet the
quality standards reflected in this Agreement, then Licensee shall take whatever
action is reasonably necessary to cease all further distribution of such
materials until the failure is corrected.
7. RIGHTS IN THE INTELLECTUAL PROPERTY.
a. Under no circumstance may any of the Marks be used by Licensee in a manner
that may be likely to cause doubt or confusion in the mind of the public as to
Med Enclosure's ownership of the Marks.
b. Licensee agrees to assist Med Enclosure in the procurement of maximum
protection for and maintenance of Med Enclosure's rights, and without limitation
in connection therewith, Licensee agrees to execute and deliver to Med Enclosure
in such form as Med Enclosure may reasonably request all instruments necessary
to effectuate copyright, trademark, or other protection or to record Licensee as
a registered user of any trademarks, copyrights, or other proprietary rights or
to cancel such registration. All such assistance will be at Med Enclosure's sole
expense.
8. INFRINGEMENT OF INTELLECTUAL PROPERTY.
a. NOTICE OF INFRINGEMENT. If either Party learns of any infringement of the
Marks or of the existence, use, or promotion of any xxxx or design similar to
the Marks anywhere, such Party shall promptly notify the other.
b. MED ENCLOSURE'S AUTHORITY. Med Enclosure has the right to decide, in
consultation with Licensee, what legal proceedings or other action, if any,
shall be taken, by whom, how such proceedings or other action shall be
conducted, and in whose name such proceedings or other action shall be
performed. All costs shall be paid by Med Enclosure, and all sums recovered in
such proceedings, whether by judgment, settlement, or otherwise, shall be
retained by Med Enclosure, except that any award and receipt of any sums for
actual damages sustained by Licensee shall be first applied toward reimbursing
Med Enclosure for all costs, including attorneys fees, it incurred in pursuit of
such proceedings, including cost of collection; and thereafter all sums
remaining from such award shall be shared equally by the Parties.
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9. COOPERATION.
Licensee agrees to cooperate with Med Enclosure in the prosecution of any
trademark, copyright, or other application that Med Enclosure may desire to file
or in the conduct of any litigation relating to the Marks. Licensee shall supply
to Med Enclosure such samples, containers, labels, sales information, Books and
Records, and similar material and, upon request, shall procure evidence, give
testimony, and cooperate with Med Enclosure as may reasonably be required in
connection with any such application or litigation.
10. SCOPE OF AGREEMENT.
This Agreement applies to all uses of the Marks in the Territory. Schedule I may
be modified by consent of the Parties. If the Parties do not agree on the
amendment to a schedule, Med Enclosure may then decide on the amendment in its
sole discretion.
11. COMPLIANCE WITH GOVERNMENT STANDARDS.
Licensee represents and warrants that its marketing, sales, and distribution of
the Goods and Services, or such activities of its sublicensees, shall meet or
exceed all federal, state, and local laws, ordinances, standards, regulations,
and guidelines pertaining to such products, services, or activities, including,
but not limited to, those pertaining to product safety, quality, labeling,
privacy, disclosure, and propriety. To the extent such activities are permitted
under this Agreement, Licensee, for itself and its sublicensees, agrees that
they will not package, market, sell, or distribute any Goods or Services or
cause or permit any Goods or Services to be packaged, marketed, sold, or
distributed in violation of any such federal, state, or local law, ordinance,
standard, regulation, or guideline.
12. INTELLECTUAL PROPERTY NOTICES.
The permitted uses of any of the Marks under this Agreement shall, in every
instance be combined with one of the following notices: (i)"Reg. U.S. Xxx. & TM.
Off."; (ii) "(R)"; (iii) "Registered in U.S. Patent and Trademark Office"; (iv)
"Trademark of Med Enclosure, Inc."; (v) "Service Xxxx of Med Enclosure, LLC.";
(vi) "TM"; (vii) "SM"; or (viii) such other similar language as shall protect
and give proper notice of Med Enclosure's rights in the Marks. Med Enclosure may
require the use of any one or more of these legends by giving notice thereof to
Licensee.
13. TERMINATION.
a. If a Party materially defaults in the performance of any provision of this
Agreement, and such default is not cured within thirty (30) days after receiving
notice of such default from the non-defaulting Party, the non-defaulting Party
shall be entitled to terminate this Agreement effective immediately upon
delivery of final written notice to the defaulting Party.
C-5
b. The Parties hereby agree that in the event that a Party, its successors, or
assigns shall be the subject of any voluntary or involuntary bankruptcy
proceeding at any time from and after the date hereof, then and in that event
only, the Party that is not the subject of such proceedings may terminate this
Agreement immediately upon written notice.
c. This Agreement may be terminated immediately upon written notice if the
Services Agreement expires or is terminated.
14. POST-TERMINATION AND EXPIRATION RIGHTS AND OBLIGATIONS
a. If this Agreement is terminated for material default, as described in Section
13(a) above, where Licensee is the defaulting party, Licensee and Licensee's
receivers, representatives, trustees, agents, administrators, successors, or
permitted assigns shall have no right after the effective date of termination to
sell, ship, market, or distribute Goods or Services bearing the Marks or to use
any promotional or packaging material relating to such Goods and Services;
except that Licensee may exhaust inventory on hand of Goods or fulfill Services
ordered prior to termination for a period of 90 days thereafter, so long as such
activity is not the subject of the default resulting in termination, and so long
as the activity will not harm the goodwill and reputation of Med Enclosure in
its marks, as such may be determined by Med Enclosure in its sole discretion.
b. After expiration of the term of this Agreement, upon notice of non-renewal,
Licensee may sell, ship, market, and distribute Goods that are on hand or in the
process of delivery at the date of expiration or offer Services for a period of
ninety (90) days after the date of expiration, as the case may be. At Med
Enclosure's discretion, any Goods not sold, shipped, and distributed by Licensee
within this ninety (90) day period must be destroyed or repossessed and
forwarded to Med Enclosure so that the Marks are no longer present in whole or
in part on the Goods or on their promotional or packaging material held by
Licensee. Upon Med Enclosure's request, Licensee shall provide evidence
satisfactory to Med Enclosure of such destruction or repossession and forwarding
of remaining Goods or promotional or packaging material. All use of the Marks in
connection with the offering of Services must cease at the end of this 90-day
period.
c. After the expiration or termination of this Agreement and except as provided
in Section 14(b), all rights granted to Licensee under this Agreement shall
forthwith revert to Med Enclosure, and Licensee shall refrain from further use
of the Marks or any further reference to the Marks, either directly or
indirectly, or from use of any marks or designs similar to the Marks in
connection with the sale, marketing, or distribution of Licensee's products and
services, and Licensee shall immediately change its corporate name and any names
in which it does business in such manner as it ceases to use the name "Med
Close" or any other name that is similar to the Xxxx.
C-6
15. IRREPARABLE HARM AND EQUITABLE RELIEF.
Licensee acknowledges that any breach or threatened breach by Licensee or one of
its sublicensees of any of the covenants in this Agreement relating to the Marks
will result in immediate and irreparable damage to Med Enclosure. Licensee
acknowledges and admits that there is no adequate remedy at law, and Med
Enclosure agrees that in the event of such breach or threatened breach, Med
Enclosure shall be entitled to preliminary and permanent injunctive relief and
such other relief as any court of competent jurisdiction may deem just and
proper.
16. INDEMNITY.
Licensee agrees to indemnify, hold harmless, and defend Med Enclosure and any
Med Enclosure licensee or sublicensee with legal counsel acceptable to Med
Enclosure or any such licensee or sublicensee from and against all demands,
claims, injuries, losses, damages, actions, suits, causes of action,
proceedings, judgments, liabilities, and expenses, including attorneys' fees,
court costs, and other legal expenses, arising out of or connected with the acts
or omissions of Licensee and/or its sublicensees. Med Enclosure or any Med
Enclosure licensee or sublicensee shall give to Licensee notice of any such
claim or suit as soon as possible and afford Licensee the opportunity to defend
the claim at its own expense through counsel of its own choice. Licensee shall
not voluntarily settle any such claim or suit in a manner that might in any way
adversely affect or be in derogation of any rights of Med Enclosure or any Med
Enclosure licensee or sublicensee in and to the Marks or constitute any
admission in respect thereof. Nothing herein shall preclude Med Enclosure or any
sublicensee from participating in any manner through counsel of its own choosing
at its own expense and no approval by Med Enclosure of any action by Licensee
shall affect any right of Med Enclosure to indemnification hereunder. Med
Enclosure agrees to cooperate to the extent necessary to reduce or eliminate the
indemnified liability.
17. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL,
PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, ARISING FROM OR
RELATED TO A BREACH OF THIS AGREEMENT, USE OF THE MARKS OR OTHER INTELLECTUAL
PROPERTY, INCLUDING SUCH DAMAGES, WITHOUT LIMITATION, AS DAMAGES FOR LOSS OF
REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, AND CLAIMS
AGAINST Med Enclosure BY ANY THIRD PERSON, EVEN IF BOOST MOBILE HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES; (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR
ANY DELAY OR FAILURE BY EITHER PARTY TO PERFORM ITS OBLIGATIONS UNDER THIS
AGREEMENT DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL; OR (C) CLAIMS MADE A
SUBJECT OF A LEGAL PROCEEDING AGAINST EITHER PARTY MORE THAN TWO YEARS AFTER
C-7
ANY SUCH CAUSE OF ACTION FIRST AROSE. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY, OR OTHERWISE,
BOTH PARTIES' LIABILITY TO ONE ANOTHER SHALL BE LIMITED TO DIRECT DAMAGES.
18. NOTICES.
Any notice or other communication required or permitted to be given
hereunder will be in writing, and will be delivered to the Parties at the
addresses set forth below (or to such other addresses as the Parties may specify
by due notice to the other). Notices or other communications will be effective
when received at the recipient's location (or when delivered to that location if
receipt is refused). Notices or other communications given by facsimile
transmission will be presumed received at the time indicated in the recipient's
automatic acknowledgment. Notices or other communications given by Federal
Express or other recognized overnight courier service will be presumed received
on the third Business Day after they are sent. Notices or other communications
given by certified mail, return receipt requested, postage prepaid, will be
presumed received on the fifth Business Day after they are mailed.
If to Licensee, to:
Med Close Corp
0000 00xx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000
Attention: President
With a copy to:
XXXXXXXXXXX XXXXX & XXXXXXXX LLP
--------------------------------
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Med Enclosure, to:
Med Enclosure, L.L.C.
0000 00xx Xxxxxx Xxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000
Attention: President
C-8
19. ASSIGNMENT, TRANSFER, SUBLICENSE, AND DELEGATION.
Licensee may assign, transfer, or sublicense any of its rights under this
Agreement or delegate any of its rights or obligations under this Agreement,
consistent with the business purposes for which this Agreement and the Services
Agreement has been executed, upon Med Enclosure's prior written approval, which
approval will not be unreasonably withheld or delayed. This Agreement will be
binding upon and inure to the benefit of the Parties and their respective
successors and assigns.
20. COSTS AND EXPENSES.
Each Party shall bear and pay all costs and expenses arising in connection with
its performance under this Agreement.
21. RELATIONSHIP.
The relationship of Med Enclosure and Licensee shall be that of independent
contractors toward one another.
22. SEVERABILITY.
If any provision of this Agreement shall be determined to be illegal and
unenforceable by any court, government, or other authority of competent
jurisdiction, the remaining provisions shall be severable and enforceable in
accordance with their terms so long as this Agreement without such terms or
provisions does not fail of its essential purpose or purposes. The Parties will
negotiate in good faith to replace any such illegal or unenforceable provision
or provisions with suitable substitute provisions to maintain the economic
purposes and intentions of this Agreement.
23. SCHEDULES AND EXHIBITS.
All references to "Schedule" or "Schedules" herein shall mean Schedules I and II
attached to this Agreement, which Schedules, wherever referred to herein and as
amended, are hereby incorporated into this Agreement as though fully set forth
herein.
24. SURVIVAL.
Med Enclosure's and Licensee's obligations and agreements under Sections 3, 6,
7, 9, 11, 14, 15, 16, 17, and all other provisions of this Agreement that by
their terms reasonably may be interpreted to survive the termination or
expiration of this Agreement shall survive the termination or expiration of this
Agreement.
C-9
25. MISCELLANEOUS.
a. CAPTIONS. The captions for each Section have been inserted for the sake of
convenience and shall not be deemed to be binding upon the Parties for the
purpose of interpretation of this Agreement.
b. SCOPE AND AMENDMENT OF AGREEMENT. This Agreement forms the entire agreement
between the Parties with respect to the subject matter of this Agreement,
supersedes any and all prior and contemporaneous negotiations, understandings,
or agreements in regard to such subject matter, and is intended as a final
expression of their Agreement. With the exception of the modifications provided
for in Section 10, this Agreement may be amended or modified only by written
instrument expressly referring to this Agreement, setting forth such amendment,
and signed by Med Enclosure.
c. GOVERNING LAW. This Agreement will be deemed to have been executed in the
State of Nevada and will be construed and interpreted according to the laws of
that state without regard to its conflicts of law principles or rules.
d. DISPUTES. All disputes arising out of or related to this Agreement or the
subject matter hereof shall be determined in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Such arbitration
shall take place in the Sarasota, Florida metropolitan area, and the award
rendered by the arbitrators shall be final and binding on the Parties, and
judgment may be entered in any court of competent jurisdiction upon such award.
Nothing in this Section shall prevent either Party from applying to a court of
competent jurisdiction for equitable or injunctive relief, or for enforcement of
any arbitration award. The prevailing Party will be entitled to an award of its
respective costs and disbursements, including attorneys' fees.
e. WAIVER. The failure of either Party to insist in any one or more instances
upon the performance of any term, obligation, or condition of this Agreement or
to exercise any right or privilege herein shall not be construed as thereafter
waiving such term, obligation, or condition, or relinquishing such right or
privilege, and the acknowledged waiver or relinquishment by a Party of any
default or right shall not constitute waiver of any other default or right. No
waiver shall be deemed to have been made unless expressed in writing and
executed by the Party against whom the waiver is asserted.
f. TIME OF THE ESSENCE. Time is of the essence with respect to the obligations
to be performed under this Agreement.
g. RIGHTS CUMULATIVE. Except as expressly provided in this Agreement, and to the
extent permitted by law, any remedies described in this Agreement are cumulative
and not alternative to any other remedies available at law or in equity.
C-10
h. FORCE MAJEURE. If the performance of this Agreement is interfered with by any
circumstance beyond the reasonable control of the Party affected, including
without limitation governmental authority to grant any consent, approval,
waiver, or authorization, or any delay on the part of any governmental authority
in granting any consent, approval, waiver, or authorization, manufacturer, or
equipment vendor delays or deficiencies including ability to process correctly
calendar date-related data, delays in repair or maintenance of sites due to
restricted access by third parties, delays or barriers to construction or
coverage resulting from local zoning restrictions or frequency coordination
issues with incumbent wireless users, acts of God, such as fire, flood,
earthquake, or other natural cause, terrorist events, riots, insurrections, war
or national emergency, or strikes, boycotts, lockouts or other labor
difficulties, the Party affected by the force majeure is excused on a day-by-day
basis to the extent of the interference; provided that such Party shall use its
best commercially reasonable efforts to avoid or remove the causes of such
nonperformance.
i. NO CONSTRUCTION AGAINST DRAFTER. The Parties agree that any principle of
construction or rule of law that provides that an agreement shall be construed
against the drafter of the agreement in the event of any inconsistency or
ambiguity in such agreement shall not apply to the terms and conditions of this
Agreement.
j. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original and all of which together shall
constitute one instrument.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their authorized representatives on the dates indicated below.
MED ENCLOSURE, L.L.C
By: /S/ XXX X. XXXXXXX
----------------------
Name: Xxx X. Xxxxxxx
Title: President & Managing Member
MED CLOSE CORP.
By: /S/ XXX X. XXXXXXx
---------------------
Name: Xxx X. Xxxxxxx
Title: President & CEO
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SCHEDULE I
"MEDCLOSE"
SCHEDULE II
ROYALTIES
MED ENCLOSURE - MED CLOSE LICENSE AGREEMENT
Licensee shall pay Med Enclosure the sum of $1,000 (U.S.) at the time
of signing this Agreement.
