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Exhibit 10.01
EXCLUSIVE LICENSE AGREEMENT
This Exclusive License Agreement is made and effective this 18th day of
September, 1997, by and between XXX X. XXXXXXXXX, of 0000 Xxxx 0000 Xxxxx,
Xxxx Xxxxxx Xxxx, Xxxx 00000, hereinafter referred to as "LICENSOR," and
POWERBALL INDUSTRIES, INC., a Utah Corporation of the State of Utah, having a
principal place of business at 0000 Xxxx 0000 Xxxxx, Xxxx Xxxx Xxxx, Xxxx 841
19, hereinafter referred to as "LICENSEE."
WHEREAS, LICENSOR is the inventor of a certain Hydrogen Generation System
and Fuel Pellet for a Hydrogen Generation System, and is owner of the entire
right, title and interest in and to said invention currently embodied in
United States Patent Application;
WHEREAS, LICENSEE desires to manufacture and sell both Hydrogen
Generation System and Fuel Pellet for a Hydrogen Generation System of the
invention;
WHEREAS, LICENSOR is willing to exclusively license to LICENSEE his
entire right, title and interest in and to his inventions, patents, reissues,
continuation or continuations in part thereof, and additional patent
applications therein in the United States and throughout the world for the
life of any patent issued thereon or a period of five (5) years, whichever is
longer, and will cooperate with LICENSEE in filing additional patent
applications, as LICENSEE may desire and pay for, covering improvements to
LICENSOR's invention.
NOW, THEREFORE, based upon the mutual covenants and promises set forth
herein, the parties hereto agree as follows:
DEFINITIONS
1. Patent rights means the above set out in U.S. Patent Applications for
a Hydrogen Generation System and Fuel Pellet for a Hydrogen Generation System
and all present and future patents and patent applications as are or later
filed relating to the LICENSOR's invention in the United States, and any and
all foreign countries, if any.
2. Effective date shall mean the date first set forth in the preamble to
this Agreement.
3. Net selling price shall mean the price received on a sale to an
unrelated third party of each unit of a Hydrogen Generation System or Fuel
Pellet for a Hydrogen Generation System less any trade discounts as are
usually allowed and actually given, cost of returns and taxes, if any.
4. Sold shall mean when a unit of the invention hereinafter referred to
as "unit and/or fuel pellet" is manufactured, shipped or first used
commercially and has been paid for.
5. Inventor A reference to inventor refers to LICENSOR, Xxx X. Xxxxxxxxx
6. Licensed subject matter means the LICENSOR's inventions and
improvements thereto as embodied in the subject U.S. Patent Applications for a
Hydrogen Generation System and a Fuel Pellet for a Hydrogen Generation System.
WITNESSETH
1. License Grant. LICENSOR hereby sells, grants, transfers and conveys
to LICENSEE an exclusive license to make, use and sell units of the licensed
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subject matter in the United States and throughout the world, including trade
secrets, know how, and the like. This license grant is limited to the
inventions and improvements thereto, and is for the United States and
throughout the world, and includes the right to sublicense others under the
terms and conditions of this Agreement, providing that such sublicensees agree
to be bound by all of the terms and conditions of this Agreement.
2. Royalties and Consideration LICENSEE, for and in consideration of the
granting of this Exclusive License Agreement, agrees to pay to LICENSOR, for
the term of this Agreement, a royalty of one (1) percent of the net selling
price for all wholesale or retail sales of "units and/or fuel pellets" of
LICENSOR's inventions, that include the improvements engineered thereto, and
products as are later developed as a result of LICENSOR's efforts, and as are
sold by LICENSEE or any sublicensee, in the United States and throughout the
world. Royalty payments to be paid quarterly, on or before the fifteenth (15)
day following the end of each calendar quarter. If such royalties are not paid
by the thirtieth (30) day from the last day of the previous calendar quarter,
the LICENSOR may terminate this Agreement as provided for in paragraph 8
below.
3. Minimum Production. LICENSEE agrees that from the date of this
Agreement it will, after a first year from the date of this Agreement for a
second year, produce and market "units" of the invention "fuel pellets" of the
invention each year for the term of this Agreement, and pay royalties thereon,
as set out in paragraph 2. Should this production schedule of sales of "units"
and/or "fuel pellets," coming under the subject U.S. Patent Applications, not
be produced in the second year or subsequent years, LICENSEE may keep this
license current by paying to LICENSOR as royalties for that year, an amount
equal to the royalties as would be paid on the number of "units" and/or pounds
of "fuel pellets," set out below, based upon the then net selling price of the
"units," with a minimum production of "units" and fuel pellets" being for a:
First year: no minimums;
Second year: LICENSEE shall have manufactured and sold at
least 50 "units" and/or 250,000 pounds of "fuel
pellets" by the end of the second year;
Third year: shall have manufactured and sold at least 50
"units" and/or 250,000 pounds of "fuel pellets,"
during a third year,
Fourth year: shall have manufactured and sold at least 150
"units" and/or 500,000 pounds of "fuel pellets,"
during a fourth year and
Fifth year and
for the
remainder
of this
Agreement: shall have manufactured and sold at least 250
"units" and/or 5,000,000 pounds of "fuel
pellets," during each year thereafter for the
term of this Agreement.
4. Time is of the Essence. LICENSEE agrees that time is of the essence in
commercially exploiting the technology licensed hereunder and accordingly
agrees to use their best efforts to develop for manufacture market ready
products embodying the rights licensed herein.
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5. Minimum Payments. The above minimum royalty payment amounts are due
and payable on the fifteenth (15) day of the month following the end of each
calendar year during the term of this Agreement. The greater of actual
royalties due or the minimum payment shall be paid. If any payment is not made
by the thirtieth (30) day of the month following the end of each calendar
year, the LICENSOR may terminate this Agreement as provided for in paragraph 8
below. Accordingly, if sales have been made during a calendar year and the
actual royalties due and paid on such sales is less than the required yearly
minimum, an appropriate amount must be added thereto to reach this minimum
amount to maintain this Exclusive License Agreement. Where royalties paid in
the previous four (4) quarters are greater that the minimum, no additional
amount is due.
6. Improvements. Subject to the terms and conditions of this Agreement,
and for so long as LICENSEE has fully performed all of its obligations and the
covenants set out hereunder, LICENSOR agrees that it will promptly make
available to LICENSEE all improvements, developments, discoveries and
inventions as LICENSOR shall acquire during the term of this Agreement and
relating to the licensed invention, and provided LICENSEE has paid for the
development of such improvements, then these improvements shall be included as
part of the licensed subject matter without additional payment. Should such
improvement result in the issue of an additional patent or patents, as set out
in paragraph 11 below, the term of this Agreement shall be extended to the end
of the life of such additional patent or patents, unless sooner terminated
hereunder.
7. Term. The term of the license herein granted shall commence on the
effective date of this Agreement and continue for the life of the last to
expire issued United States Patent concerning the licensed subject matter
including improvements as set out in paragraph 6 above as LICENSOR shall
acquire, or for the period of five (5) years from the effective date of this
Agreement, whichever is longer. As to foreign countries, this license shall
continue for such country where a patent has been granted for the life of the
last to expire patent issued in such country.
8. Termination This Agreement can be terminated by LICENSEE at any time
after the effective date hereof by LICENSEE notifying LICENSOR of such
termination in writing directed by registered mail to LICENSOR at the address
set out herein or other address supplied by LICENSOR to LICENSEE. Such
termination shall be effective thirty (30) days from the date received by
LICENSOR
LICENSOR, at its discretion, may terminate this Agreement should LICENSEE
fail to pay any required royalty when due as provided in paragraph 2 above, or
timely meet or pay any required minimum production set out in paragraph 3
above, or minimum payments as provided for in paragraph 5 hereinabove.
Termination shall be effective after notice is sent by LICENSOR to LICENSEE by
registered mail addressed to LICENSEE's address set out hereinbelow or to an
address as later supplied by LICENSEE to LICENSOR, LICENSEE to have thirty
(30) days after receipt of notice of termination to correct the cited default
by bringing all required payments current together with interest at a rate of
twelve (12) percent per annum from the date(s) that such payments were due on.
If default is not corrected within the thirty (30) day period, this license
shall be null and void without a requirement for further action by LICENSOR.
At the occurrence of a default by LICENSEE of the terms and conditions of this
Agreement other than the above set out failure to make minimum payments or pay
royalties, LICENSOR may, in its sole discretion, give notice of their
intention to terminate this Agreement if such default is not timely corrected.
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Which notice shall be sent by registered mail to LICENSEE's address set out
hereinbelow or other address as LICENSEE shall supply to LICENSOR. Such notice
shall recite the claimed default with reference to this Agreement. Upon
receipt of such notice, LICENSEE shall take prompt steps to correct the
default and shall timely inform LICENSOR of the steps taken. Should LICENSEE
fail to take appropriate measures to correct such default, LICENSOR, after
thirty (30) days, may notify LICENSEE of the termination of this Agreement,
which notice shall be sent by registered mail as set out above. LICENSEE shall
then have an additional thirty (30) day period to correct said default to
LICENSOR's satisfaction, or shall during this time period have taken steps to
correct said default to LICENSOR's satisfaction. At the end of this second
thirty (30) day period from receipt of the notice of termination, if LICENSEE
has not corrected the default or taken steps to correct said default to
LICENSOR's satisfaction, this Agreement is automatically terminated without a
requirement for further action by LICENSOR. Should LICENSEE correct the said
default within the second thirty (30) day period to LICENSOR's satisfaction,
or have taken steps that are satisfactory to LICENSOR that will correct such
default, then the notice of default and/or notice of termination will be
considered withdrawn.
9. LICENSEE's Obligations Upon Termination. LICENSEE agrees that, upon
termination, for any reason, all rights as they may have acquired under this
Agreement shall and do immediately cease. Accordingly, LICENSEE, upon
termination, will immediately cease any and all production and sale of "units"
and/or "fuel pellets" of the inventions and components thereof and will turn
over to LICENSOR or to his agent, at LICENSOR's request, all technical data,
materials, blueprints, plans, and like written materials, including computer
programs, as may be in their possession relating to the licensed subject
matter. LICENSEE shall further turn over to LICENSOR or to his agent, at
LICENSOR's request, all molds, dyes, jigs, tooling, and the like, as were used
in or relate to the manufacture of "units" and/or "fuel pellets" of the
inventions. LICENSEE, upon termination, will immediately cease and desist from
further manufacture and sale of "units" and/or "fuel pellets" of the
inventions, their components and the like. Upon termination LICENSEE shall
promptly notify LICENSOR of the number of "units" and/or "fuel pellets" on
hand of the inventions that have been produced and the number and state of
completion of "units" and/or "fuel pellets" of the inventions that are under
construction. "units" of the invention, LICENSEE shall have the right to
promptly complete said "units" of the invention as are classifiable as forty
percent or more completed at the date of their receipt of the notice of
termination and LICENSEE shall, for a reasonable period of time, not to exceed
one hundred eighty (180) days, have the right to sell these "units" and/or any
"fuel pellets" previously made at a fair market price in the normal course of
business, said sales to be governed by LICENSEE's pricing schedule in place at
the time of termination. "Units" and/or "fuel pellets" that have not been sold
within that one hundred eighty (180) day period, will be offered for purchase
to LICENSOR at the LICENSEE's cost of manufacture. Should LICENSOR determine
not to purchase said "units" and/or "fuel pellets," then LICENSEE shall have
an additional one hundred eighty (180) day period to sell said "units" and/or
"fuel pellets" at whatever price they can negotiate, except that LICENSOR
shall have a right of first refusal to buy all or part of said "units" and/or
"fuel pellets" at the offered price. such right to purchase must be accepted
by LICENSOR within ten (10) days of their receipt of a written notice from
LICENSEE. After the expiration of said ten (10) day period, provided LICENSOR
has not accepted the offer, LICENSEE may dispose of said "unit" or "units"
and/or "fuel pellets" to such other offeror.
As to LICENSEE's inventory of parts and supplies and "units" and/or "fuel
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pellets" that are less than forty (40) percent completed, LICENSEE and
LICENSOR shall negotiate in good faith for LICENSOR to purchase these
materials. Except that LICENSOR shall not purchase these materials for less
than ten (10) percent of LICENSEE's cost.
Upon termination, any leases, contracts, and agreements as LICENSEE may
have entered into or negotiated as relating to the manufacture and sale of
"units" and/or "fuel pellets" of the inventions, may be assumed by LICENSOR,
at LICENSOR's sole discretion. In such assumption, LICENSOR is hereby granted
the right and authority to negotiate directly with parties LICENSEE has
contracted with an effort to negotiate more favorable terms. However, should
terms less than what LICENSEE is obligated for be negotiated, such assumption
terms must then be approved by LICENSEE. It is understood, however, that
LICENSOR is not obligated to undertake or assume any liability of LICENSEE
under any contracts as LICENSEE has entered into and that LICENSOR will only
become liable for such agreements as they expressly, in writing, assume.
Termination of this Agreement shall not relieve LICENSEE of any burden or
obligation of payment for past royalties or past minimum payments to LICENSOR
and for payment of royalties on "units" and/or "fuel pellets" of the
inventions as have been manufactured or whereon manufacture is completed and
sold after termination of this Agreement. Accounting for such sales shall be
as provided for in paragraph 17 hereinbelow.
10. Confidentiality. LICENSEE agrees to maintain as confidential all of
the subject matter licensed hereunder, including trade secrets, and the like,
as may be disclosed by LICENSOR to LICENSEE, in conjunction with or subsequent
to the execution of this Agreement. LICENSEE shall maintain as proprietary and
confidential all information relating to design and improvements that are or
maybe the subject of United States and/or foreign patent applications.
LICENSEE will, within their manufacturing facility or the like, maintain close
controls on entry and movement of persons within such manufacturing facility
as are appropriate to maintain as confidential and as trade secrets the
activities conducted within such facility, including, but not limited,
requiring persons entering such facility to agree in writing to be bound by
the terms and conditions of an acceptable Confidential Disclosure Agreement.
Such Confidential Disclosure Agreement is to be approved by LICENSOR in
advance of use and shall be maintained after signing by LICENSEE for
LICENSOR's inspection.
11. Patent Applications. LICENSEE, by this Agreement, agrees to be
responsible for paying for the filing and prosecuting additional patent
applications, if any, utilizing patent counsel as selected by LICENSOR only,
covering the licensed subject matter of this Agreement in the United States
and foreign countries and improvements thereon as it elects, to allowance,
final judgement, refusal or abandonment. LICENSEE shall timely elect specific
countries as they determine to file patent applications in and shall notify
LICENSOR of such determination. LICENSOR, at its option and with the
cooperation of the inventors, shall then have the right to select any
additional foreign countries as LICENSOR elects to file patent applications
in. Should LICENSOR so elect, then, at the option of LICENSEE, any patent
rights granted in such additional foreign country shall and will become part
of the licensed subject matter of this Agreement, and are then considered as
having been licensed hereunder to LICENSEE.
Should this Agreement be terminated, as set out above, upon the request
of LICENSOR, LICENSEE will promptly execute appropriate documents for
transferring any title to LICENSOR as they may be acquired to issued patents
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and patent applications, and shall turn over to LICENSOR all materials
associated therewith and shall, at the request of LICENSOR, cooperate with the
LICENSOR in continuing the prosecution of such patent applications and will
take ail reasonable steps necessary to protect and preserve such patent rights
to the benefit of LICENSOR.
12. Trademarks. LICENSEE, whether with or without the input of LICENSOR,
may adopt a trademark or trademarks covering "units" and/or "fuel pellets" of
the inventions, for example "Power Ball TM." Upon termination, LICENSEE agrees
that such marks as have become identified with the subject matter of this
Agreement shall be conveyed by separate assignment to LICENSOR. Which
assignment shall include a conveyance of the rights as LICENSEE shall have
acquired in such xxxx or marks, as will expressly including the goodwill
associated therewith. This Trademark Assignment will be made without cost to
LICENSOR and shall be executed in conjunction with other assignments and
conveyances of the rights licensed as called for herein.
13. Patent Notice. LICENSEE acknowledges the importance of protecting
patent rights and accordingly agrees to attach a suitable name plate, located
in a prominent position, to each "unit" or to a, container housing "fuel
pellets" or the like, covered by this Agreement, which name plate, label, or
the like, shall indicate that the product has been manufactured under license
from LICENSOR and will set forth the U.S. and foreign Patent Numbers, and any
additional patent numbers, if any, both United States and foreign, and may
indicate that other patents are pending at the time of the manufacture, if
applicable, covering the licensed subject matter. This notice shall be in
conformity with requirements of United States statutes relating to the marking
of patented devices.
14. Infringement LICENSEE agrees to notify LICENSOR promptly of any claim
of, or threatened action or suit for infringement, of any patents belonging to
third parties, made or brought against LICENSEE by reason of LICENSEE's
exercise of rights granted hereunder. LICENSOR, upon notification, shall have
the right to take charge of the defense of such action, as LICENSOR
determines, including the hiring of attorneys of its own selection, or may
elect to indemnify or hold harmless LICENSEE, who shall defend any such action
through attorneys of LICENSEE's own selection. If any such action should be
instigated against LICENSOR and LICENSEE jointly, LICENSEE shall defend such
action on behalf of both parties through attorneys of its choosing providing
such attorney is acceptable to LICENSOR LICENSOR shall assist with such
defense and accordingly shall without charge make available to LICENSEE any
relevant records, information, samples, tests, reports, engineering data, and
the like, and shall at its own cost make all reasonable efforts to secure the
testimony of its employees and shall cooperate with such defense as requested
by LICENSEE. LICENS OR, however, shall have the right to participate in the
defense of any such action at its own expense through counsel of its own
choosing.
In the event LICENSEE shall determine that one or more of the patent
rights licensed hereunder are being infringed, LICENSEE shall not communicate
with such suspected infringer and shall provide LICENSOR with evidence as
LICENSEE may have acquired showing such infringement. If LICENSOR shall
determine that an infringement exists, LICENSOR may take action to suppress
the infringement to the extent of bringing suit against such infringer, if
necessary. LICENSOR, however, is under no obligation to bring such suit or to
prosecute more than one suit at a time involving a claim for infringement of
any of the patents licensed hereunder. In the event LICENSOR declines to bring
suit or to prosecute more than one suit at a time involving a claim for
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infringement of his patent or patents licensed hereunder, LICENSEE, with the
permission of LICENSOR, may bring such suit at its own expense. If LICENSEE
shall bring such suit and recover, then LICENSEE alone shall enjoy the benefit
of such recovery. Should LICENSEE and LICENSOR determine to jointly or
collectively bring action for infringement, then any recovery therefrom shall
be divided between LICENSOR and LICENSEE based on the financial contributions
of the respective parties, which contribution of LICENSOR may be provided by
his foregoing royalties as provided for herein
15. Patent Invalidity. It is agreed that if a judgemetn is entered by a
court of competent jurisdiction in any proceeding in which any claim or claims
of one or more of the patent or patents licensed under this Agreement is found
to be invalid for any reason, and should such judgement become final, such
rights to such invalidated claim or claims will cease to be part of the
subject matter licensed hereunder. However, the parties hereby acknowledge
that this Agreement is not founded on any single patent or claim or claims
thereof but is also to technology, know how and trade secrets, and therefore
the invalidity of a single claim, claims, patent or even several patents of
the licensed subject matter shall not alter or modify the terms and conditions
of this Agreement.
16. Assignment. This Agreement is personal to LICENSOR and may not be
assigned without written approval by LICENSEE except in the event of the death
of LICENSOR, the rights to payments provided for hereunder shall survive and
are inheritable by his estate to continue for as long as this Agreement is in
full force and effect. It is, however, assignable by LICENSEE to a successor
to its entire business or to a third party as approved by LICENSOR who will
not unreasonably withhold his approval, which third party will agree in
writing in advance of such assignment to be bound to the terms and conditions
of this Agreement. Assignment will, however, in no way relieve LICENSOR or
LICENSEE of their obligations under the provisions of this Agreement.
17. Reports, Records, and Payments. Before the thirtieth (30) day
following each quarterly period ending September 30, 1997, December 31, 1997,
and March 31, 1998, June 30, 1998, and so on, respectively, from the date of
the signing of this Agreement, all production minimums and sales, and related
royalties payable hereunder shall be reported to LICENSOR. LICENSEE shall
furnish to LICENSOR a statement, certified by an officer of LICENSEE, showing
all licensed "units" and/or "fuel pellets" manufactured and sold by LICENSEE
during such quarter. This report shall include details of all production and
sales and a computation of the royalties payable pursuant to paragraph 3
hereof. In that itemization, sales of all companies operating as sublicensees
of LICENSEE shall also be reported. This statement shall be submitted to
LICENSOR even if no sales have taken place during the applicable quarterly
period.
Concurrent with the conveyance of such royalty report, LICENSEE shall pay
to LICENSOR all royalties as are due and payable. All sums of money payable by
LICENSEE to LICENSOR under this Agreement shall be paid in United States
currency and to the LICENSOR directly, or to an account designed by LICENSOR.
Payment shall be made in accordance with the definition of net selling price
of "units" and/or "fuel pellets" of the inventions licensed hereunder, as set
out in the definitions portion of this Agreement. Where foreign currency is
received, such shall be converted into United States currency using the
foreign exchange rate as set for bank transfers in the United States for
payment abroad, less all expenses relating to the conversion and/or collection
thereof. The exchange rate shall be that which is in effect for the last
business day of a calendar quarter in which the sales were made.
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LICENSEE shall keep complete, true and accurate books of account
containing all particulars of their business activities as necessary for
demonstrating the accuracy of the report rendered to LICENSOR setting out the
amount to be paid to LICENSOR by way of royalties, as set forth above. Such
books of account and supporting data shall be open at any reasonable time for
a period of five (5) years following the end of a calendar year to which they
pertain for the inspection of LICENSOR, or his representatives, for the
purpose of verifying LICENSEE's royalty statements, or LICENSEE's compliance
with respect to other aspects of this Agreement.
18. Disclaimer of Liability. LICENSEE agrees to assume all financial and
service obligations for products manufactured and sold by it, and hereby
expressly absolves and holds harmless LICENSOR from all liability and/or
responsibility to LICENSEE and/or to others, including third parties, for any
failure in production, design, operation or otherwise, including fitness of
purpose and inherent defects, for products manufactured and sold by LICENSEE.
19. Non-waiver Provisions. Failure by LICENSOR or LICENSEE to enforce any
provision of this Agreement, or any right in respect hereto, or to exercise
any election herein shall in no way be considered to be a waiver of such
provision, right, or election nor in any way shall such effect the validity of
this Agreement. The exercise by LICENSOR or LICENSEE of any of their rights,
herein or any of their elections under the terms or conditions herein shall
also not preclude or prejudice LICENSOR or LICENSEE from exercising the same
or any other right as they may have under this Agreement irrespective or any
previous action or proceeding taking by LICENSOR or LICENSEE hereunder.
20. Termination/Bankrupcy Unless otherwise provided by law, LICENSOR
shall have the right to terminate this Agreement and any sublicense or
sublicenses granted hereunder upon the filing by LICENSEE of a petition in
bankruptcy or insolvency, or upon or after a declaration of bankruptcy or
insolvency, or upon or after the filing by LICENSEE of any petition or answer
seeking reorganization, readjustment or arrangement under any law relating to
bankruptcy or insolvency, as could involve the appointment of receiver for all
or any part of the property of LICENSEE, or upon or after the initiation by
LICENSEE of any proceedings for the liquidation or winding up of its business
or for the termination of its corporate charter; and upon the exercise of such
rights, any licenses or sublicenses granted shall automatically terminate
fifteen (15) days after notice in writing to that effect has been given by
LICENSOR to LICENSEE or to sublicensees
Should, however, a petition in bankruptcy or insolvency, or upon or after
a declaration of bankruptcy or insolvency, or upon or after the filing by
LICENSEE of any petition or answer seeking reorganization, readjustment or
arrangement under any law relating to bankruptcy or insolvency, as could
involve the appointment of receiver for all or any part of the property of
LICENSEE, or upon or after initiation by LICENSEE of any proceedings for the
liquidation or winding up of its business or for the termination of its
corporate charter, and a court block termination it is agreed that the
provisions of paragraphs 2 and 3 shall remain in force and effect and all
amounts due and payable thereunder shall accrue as a responsibility of a
subsequent taker, who acquires from such court the rights and responsibilities
under this Agreement.
21. Construction. This Agreement shall be governed by and construed in
accordance with the laws of the United States of America and the State of
Utah. This Agreement constitutes the entire agreement between the parties with
respect to the subject matter licensed hereunder, and shall supercede any
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previous communications, representations, understandings and agreements,
either oral or written, between the parties or any officer to representative
thereof with respect to the subject matter of this Agreement.
22. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto pertaining to the subject matter hereof, and
supercedes all prior agreements, understandings, negotiations and discussions,
whether oral or written, relating to the subject matter of this Agreement. No
supplement, modification, waiver or termination of this Agreement shall be
valid unless executed by the party to be bound thereby. No waiver of any of
the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provisions hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
23. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed to have been given (i) if
personally delivered, when so delivered, (ii) if mailed, one (1) week after
having been placed in the United States mail, registered or certified, postage
prepaid, addressed to the party to whom it is directed at the address set
forth below:
If to LICENSOR:
Xxx X. Xxxxxxxxx
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
With a copy to:
M. Xxxx Xxxxxxx, Esq.
000 Xxxx 000 Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 8411 1
If to LICENSEE:
Powerball Industries, Inc.
0000 Xxxx 0000 Xxxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
Either party may change the address to which such notices are to be
addressed by giving the other party notice in the manner herein set forth.
24. Third Parties. Nothing in this Agreement, expressed or implied, is
intended to confer upon any person other than LICENSOR or LICENSEE any rights
or remedies under or by reason of this Agreement.
25. Injunctive Relief. Each party hereby acknowledges and agrees that it
would be difficult to fully compensate the other party for damages resulting
from the breach or threatened breach of any provision of this Agreement and,
accordingly, that each party shall be entitled to temporary and injunctive
relief, including temporary restraining orders, preliminary injunctions and
permanent injunctions, to enforce such provisions without the necessity of
proving actual damages or being required to post any bond or undertaking in
connection with any such action. This provision with respect to injunctive
relief shall not diminish, however, the right of either party to any other
relief or to claim and recover damages.
26. Headings. Section and subsection headings are not to be considered
part of this Agreement and are included solely for convenience and reference
and in no way define, limit or describe the scope of this Agreement or the
intent of any provisions hereof.
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27. Attorneys' Fees. In the event any party takes legal action to enforce
any of the terms of this Agreement, the unsuccessful party to such action
shall pay the successful party's expenses (including, but not limited to,
attorneys' fees and costs) incurred in such action.
28. Arbitration. Any controversy arising out of or relating to this
Agreement or the transactions contemplated hereby shall be referred to
arbitration before the American Arbitration Association strictly in accordance
with the terms of this Agreement and the substantive law of the State of Utah.
The board of a arbitrators shall convene at a place mutually acceptable to the
parties in the State of Utah and, if the place of arbitration cannot be agreed
upon, arbitration shall be conducted in Salt Lake City, Utah. The parties
hereto agree to accept the decision of the board of arbitrators, and judgement
upon any award rendered hereunder may be entered in any court having
jurisdiction thereof. Neither party shall institute a proceeding hereunder
until that party has furnished to the other party, by registered mail, at
least thirty (30) days prior written notice of its intent to do so.
29. Force Majeure. Except for obligations of payment neither LICENSOR nor
LICENSEE shall be liable for non-performance caused by any circumstances
beyond their reasonable control, including, but not limited to, lightning,
earthquake, storm, strike, lockout or other industrial disturbance, shortage
of necessary labor, acts of enemies, sabotage, war, blockage, insurrection,
riot, epidemic, landslide, flood, fire, washout or the order of any court or
authority, which circumstance by the exercise of due diligence the party
invoking this paragraph 29 is unable to prevent or overcome; provided,
however, that (i) lack of financial capacity shall in no event be deemed to be
a cause beyond a party's control and (ii) no party shall be entitled to invoke
this paragraph 29 if the failure to observe or perform any of the covenants or
obligations herein imposed upon it was caused by such party failing to act in
a reasonable and prudent manner under the circumstances, or failing to remedy
the condition with reasonable diligence, or failing to give notice as soon as
possible after determining that an event of force majeure has occurred and
specifying those covenants or conditions such party will be unable to perform,
or was the result of a knowing or negligent breach by such party of any
applicable laws, regulations, agreements or contracts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day
and year first written above.
/S/XXX X. XXXXXXXXX/INVENTOR and LICENSOR
POWERBALL INDUSTIES, INC., LICENSEE
By: /S/Xxx X. Xxxxxxxxx
Its: President
