INTELLECTUAL PROPERTY LICENSING AND REVENUE
SHARING DISTRI BUTION AGREEMENT
This Intellectual Property Licensing Revenue Sharing Distribution Agreement
("Agreement") is entered into this 14th day of March, 2004, by and between ORBIT
BRANDS CORPORTATION f/k/a Orbit Xxxxxx.xxx, Corporation, Itrex Corporation
("Itrex") both located at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx, 00000, and Malibu Beach Beverage Group LLC, and ("Group"), whose
address is 000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, XX 00000.
RECITALS
1. Orbit and Itrex are in the business of developing, providing and operating
services, websites, computerized databases, marketing and communications
systems within the consumer products industry that provide third parties
remote access to on-line computerized information. Orbit and Itrex are also
in the Consumer Products industry.
2. Group maintains a business, which develops, manufactures and distributes
beverage product under the Malibu Beach Beverage name.
3. The parties desire to establish a relationship in which Orbit licenses
certain intellectual property, uses the sales / marketing and distribution
capabilities, utilizes product research and development capacity and use of
back office billing, administrative and production systems of Malibu Beach
Beverage Group LLC.
Group agrees to actively promote and market all ancillary products
("Products"), developed by Orbit. Currently contemplated products include
products ranging from flavored juice mixers, water, sports drinks, lip
balms, lotions and waxes and candles. Group shall provide all accounting,
general, administrative, production, logistics, sales and distribution
services to Orbit Brands for an agreed to fee basis to be separately
negotiated between the parties. Orbit will be responsible for the research
efforts needed to create the brand extension products at their expense.
Additionally, Orbit will indemnify Group to any and all claims which may
rise concerning brand extension products.
AGREEMENTS
4. Content Development and Distribution: Commencing upon the execution of this
Agreement, and continuing throughout the term, Group shall officially
endorse Orbit / Itrex as it's non-exclusive provider of content. For the
purposes of this agreement, "Content" shall mean text, database files,
images, video, audio and other related data, products, services,
advertisements, and promotions.
a. Home Page Promotion: Immediately following the execution of this
agreement, Group shall promote Orbit brand extension "products" on the
Internet home page of xxx.xxxxxxxxx.xxx. This home page promotion
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shall consist of an animated button (gif) image, text link or other
graphic representation to be mutually agreed upon by the parties. The
button shall contain a message mutually agreed upon by the parties and
shall remain a fixed presence on Group' s home page from the date of
implementation throughout the term of this agreement. Group will
establish a hyperlink from the Button to a page on Group's website
related to the message displayed on the Button.
b. Additional Beverage and Ancillary Related Product: Orbit shall have
the right to develop products promoting the Malibu Lifestyle, lip
balm, lotions, candles etc...which will be sold and distributed by
Group.
c. Use of Promotions for Media Coverage: Orbit / Itrex shall have the
right to make use of this agreement in Orbit / Itrex's website, media
and sales kits, trade advertising and/or otherwise mutually agreed to,
subject to Group's right to pre-approve any use of its logo, editorial
or trademarks in Orbit / Itrex's print materials, product packaging
and advertising. As soon as practicable, the parties shall issue a
joint press release approved by each party to the industry press,
announcing the substance of this agreement and Group's official
relationship for the value added development of products and delivery
of services with and on behalf of Orbit / Itrex.
d. xxx.xxxxxxxxx.xxx: Upon execution of this agreement, and continuing
throughout the term hereof, Group shall include a text link or other
graphic representation mutually agreed upon by the parties in the
Group website. The message set forth in such link shall inform the
user that all ancillary products by brand extension are provided by
Orbit / Itrex.
5. In consideration for the development, sales, distribution, and general
administrative duties undertaken by Group and the use of Group's logo,
trademarks and intellectual property pursuant to this agreement, Orbit /
Itrex hereby agrees to the following:
a. Within (30) days following the execution of this agreement, Orbit /
Itrex shall issue to Group $100,000 in cash and $290,000 in the form
of a convertible promissory note, shares in Orbit / Itrex common
stock, at .015 conversion per share. When so issued, the Orbit / Itrex
note and shares shall be considered fully paid and non-assessable, and
shall be represented by a certificate or certificates in genuine form,
duly endorsed in blank or accompanied by duly executed stock powers
endorsed in blank, with requisite stock transfer stamps if any,
attached. An additional $100,000 of cash will be paid as a remainder
of payment due from section 5a herein to Group.
b. In addition to the fees specified in Section 5(a) above, Orbit / Itrex
will pay Group on a monthly basis, fees related to development,
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promotions, sales expense, distribution expense, back office services
and logistics expense in proportion to the volume of said work being
performed. All work will be mutually agreed to prior to start and will
be completed as defined in a statement of work or work order.
Orbit/Itrex shall remit payment to Group for said fees and expenses
within 10(ten) days of invoicing from Group.
c. Orbit / Itrex agrees to pay Group a royalty on all gross revenue of
20% for all gross revenue recognized by Orbit / Itrex.
d. Commencing upon the execution of this Agreement, and continuing
throughout its term, Group shall endorse Orbit / Itrex on its website
and Group shall endorse Orbit / Itrex as its licensee for brand
extension product and promotional services.
6. Intellectual Property Ownership: Both parties understand and agree that,
notwithstanding any licenses or other rights granted elsewhere herein, any
and all rights associated with the Malibu brand, logo or trademarks and
related intellectual property provided by Group shall remain the sole
property of Group. All other related intellectual property associated with
Group is and shall remain the property of Group.
7. Term of the Agreement: This agreement shall become effective upon the date
set forth above and shall remain in effect for (10) ten years.
8. Confidential Information: Both parties acknowledge that they may come into
possession of the others Confidential Information, which is any information
not generally known in the trade or industry which was obtained from the
other party, or which was discovered or prepared during or as a result of
performance hereunder and which falls within the following general
categories: (i) information relating to trade secrets; (ii) information
relating to existing or contemplated products, services, technology,
designs, business processes and research or development; (iii) information
relating to business plans, sales, or marketing methods, methods of doing
business, customer lists, customer usages, and/or requirements, and
supplier information; (iv) information relating to proprietary software or
processes not know to the general public; and (v) any other confidential
information the parties may wish to protect by patent, copyright or by
keeping such information secret and confidential.
The parties agree to hold in the strictest confidence and to not divulge to
anyone, at any time during or after the termination of this agreement, any
of the other's Confidential Information, and not to use such information
for either parties' personal benefit, for the direct or indirect benefit of
any other person, firm, corporation, or entity without the prior written
consent of the other party.
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9. Limitation of Liability: With the exception of stipulations pursuant to
section 3. in no event shall either party or any of its directors,
officers, employees, agents, affiliates, successors or assigns be liable
for any lost profits or special or consequential damages sustained by
either party arising from this agreement, even if either party has been
advised or is otherwise aware of the possibility of such damages. Both
parties further disclaim any and all liability for the accuracy or
inaccuracy of any information transmitted online.
10.General Provisions:
a. Notices: Any notice of communication required under this agreement to
be made to either party shall be typewritten in English and shall be
considered delivered when personally delivered, delivered by
registered Mail with confirmed receipt (postage prepaid) or delivered
by overnight courier to the address of the party as set forth above.
b. Title and Captions: All section headings or captions in this agreement
are for convenience only. They shall not be deemed a part of this
agreement and in no way define, limit, extend or describe the scope or
intent of any of its provisions
c. No Assignment: Orbit / Itrex may not assign this agreement to any
third party without first obtaining the written consent of Group
therefore.
d. Bankruptcy: Either partie's insolvency, receivership, bankruptcy, or
assignment for the benefit of creditors will immediately terminate
this agreement without further notice.
e. No Partnership or Joint Venture: this agreement is not intended to ,
and shall not for any reason be deemed to create a partnership, Joint
Venture or similar relationship between the parties.
f. Invalid Provisions: If any provision or provisions of this agreement
are held to be invalid, and unenforceable, the remaining provisions
thereof shall continue to be valid and enforceable in writing
g. Entire Agreement: This agreement contains the entire agreement between
the parties with respect to the subject matter hereof, and no waiver,
alteration, or modification of any of its provisions hall be binding
unless agreed to and executed by both parties in writing.
h. Construction: This agreement shall be governed, construed and enforced
according to the laws of the State of Delaware.
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i. Force Majeure: Neither party shall be liable to the other by reason of
any failure to perform under this agreement if such failure arises out
of causes beyond the reasonable control and without the fault or
negligence of such party. Such causes may include, but are not limited
to, , acts of God or public enemies, acts of civil or military
authorities, fires, strikes, power outages, , riots or war.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
(The following page is the signature page)
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IN WITNESS WHEREOF, the parties do hereby enter into this agreement as of
the date first set forth above.
ORBIT BRANDS CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Chairman and CEO
ITREX INTERNATIONAL CORPORATION
By /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X Xxxxxxx
Chairman and CEO
MALIBU BEACH BEVERAGE GROUP LLC.
By /s/ Xxxxxxx Xxxxx
Xxxxxxx Xxxxx
President
