AGREEMENT
THIS AGREEMENT ("AGREEMENT") is made and entered into this day of
June, 1998, by, between and among, A2000 USA, INC. , 000 Xxxx 00xx Xxxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000, as a licensor ("LICENSOR"); XXXXXX XXXXXX, 000
Xxxx 00xx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and XXXX XXXXXX, 000 Xxxx 00xx
Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, (hereinafter "INVESTORS")and INTERACTIVE
MARKETING TECHNOLOGY, INC., 00 Xxxxxxxxx Xxxx, Xxxxx Xxxx, Xxx Xxxxxx 00000,
as licensee ("LICENSEE"), when referred to collectively all parties listed
herein should be referred to as "Party" or "Parties" with regard to the
following:
RECITALS
A. LICENSOR represents that it is the sole owner of U.S. Patent
Applications number 08/757/315, 08/757/317 and 08/784/398 for pending patents
entitled "Sure Shot" (the "APPLICATIONS") and the Trademarks and Copyrights as
also set forth in Schedule "A" attached hereto the APPLICATIONS, Trademarks
and Copyrights are sometimes hereinafter collectively referred to hereinafter
as the "PROPERTIES").
B. LICENSOR is sole manufacturer of the product or products produced
from the "Properties" and sold primarily for persona, family or household
purposes, hereinafter "CONSUMER PRODUCT" and sold or used for any other use,
hereinafter "INDUSTRIAL PRODUCT" collectively referred to as "PRODUCT".
C. LICENSEE is a newly formed corporation which was created to, among
other things, secure the assignment and license in, to and for the PROPERTIES
and to exploit the PROPERTIES world wide through the manufacture and/or
production, advertising, marketing, sale and/or distribution of the CONSUMER
PRODUCT.
D. LICENSOR desires to assign, sell and license the PROPERTIES to
LICENSEE and LICENSEE desires to obtain the PROPERTIES from LICENSOR.
E. LICENSOR and LICENSEE now mutually desire for LICENSOR to sell,
assign, grant, transfer and convey to LICENSEE the exclusive rights and to the
PROPERTIES, in perpetuity, on the terms and conditions set forth before.
NOW, THEREFORE, in consideration for the mutual promises, covenants and
conditions herein contained, and for such other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties hereto agree as follows:
1. Recitals. The Recitals stated above the incorporated herein
by this reference as if set forth in full at this point.
2. Assignment and Transfer. LICENSOR hereby assigns, transfers
and licenses to LICENSEE the PROPERTIES, together with any and all patents,
copyrights or trademarks issued or to be issued in foreign countries that
correspond, in whole or in part, to the PROPERTIES, as well as any other
patents belonging to LICENSOR and INVENTORS individually (collectively
referred to with LICENSOR as the "INVESTORS"), original inventor and owner of
the PROPERTIES issued, pending or to be issued to the INVENTORS that are
necessary to or beneficial with respect to the production of the inventions
described and claimed in the PROPERTIES. To facilitate recording of this
worldwide assignment and perpetual license, LICENSOR shall execute the
assignment herewith annexes as Schedule "B".
3. Grant of Rights. Subject to the terms and conditions of this
AGREEMENT, LICENSOR hereby grants to LICENSEE the following rights
(collectively, the "License Rights"):
3.1 The exclusive right to manufacture and/or produce,
advertise, promote, market, sell and otherwise distribute the CONSUMER PRODUCT
worldwide by such means and media as LICENSEE may determine, including,
without limitation, via (i) airings of an infomercial on broadcast, cable,
satellite and all other forms of television transmission now existing or
hereafter developed; (ii) television shopping programs such as those aired by
QVC and Home Shopping Network; (iii) radio; (IV) print media; (v) direct-mail
solicitation, (VI) package inserts, (VII) inbound and outbound telemarketing,
(VIII) credit card syndication, (IX) catalogs, (X) wholesale and retail
channels; and (IX) computer transmissions such as commercial on-line services
and the Internet.
3.2 In connection with the exercise of its rights hereunder,
the exclusive, worldwide right to practice any and all patents and use any and
all trademarks, trade names, copyrights, trade secrets, proprietary
information, technical knowhow and other intellectual property rights which
LICENSOR may own or control with respect to the CONSUMER PRODUCTS, including,
without limitation those specifically identified on Schedule "A".
3.3 Rights to apply for, register, maintain, deregister or
otherwise terminate and take all other action (or fail to act) with respect to
trademarks, service marks, copyrights, patents and other forms of protection
of the Property and License Rights. The rights granted herein shall be
exercised with the consent of LICENSOR which consent shall not be unreasonably
withheld.
3.4 Rights to protect from Property and License Rights from
past, present and future infringements by unauthorized parties, including,
without limitation, rights to institute, prosecute, settle and otherwise
conduct such actions and proceedings concerning such infringements as LICENSEE
may elect in its discretion, and to enjoin, recover damages and obtain all
other permitted relief for such infringements.
3.5 Upon LICENSEE'S sale of Two Hundred Fifty Thousand
(250,000) units of CONSUMER PRODUCT, all rights conferred upon LICENSEE for
CONSUMER PRODUCT by this AGREEMENT shall be granted to LICENSEE as to
INDUSTRIAL PRODUCT as well. Upon the conferring of such rights, this
AGREEMENT shall be amended to insert PRODUCT wherever CONSUMER PRODUCT or
INDUSTRIAL PRODUCT appears herein.
3.6 Upon the conferring of the additional rights to LICENSEE
pursuant to 3.5 above, LICENSOR shall be paid a royalty per unit of PRODUCT
sold as set forth in Schedule C and in accordance with paragraph 7 of this
AGREEMENT.
3.7 The worldwide rights (rights conferred upon LICENSEE by
this AGREEMENT outside of the United States) shall be for a one (1) year
period. The one (1) year period shall begin sixty days (60) from the first
airing of the informercial aired by LICENSEE as part of the test marketing to
be conducted pursuant to this AGREEMENT and terminate one (1) year from that
date. The continuation of the worldwide rights conferred by this AGREEMENT
shall be contingent upon the sale by LICENSEE of One Hundred Thousand
(100,000) units of CONSUMER PRODUCT during that period. After that first year
period, the grant of worldwide rights to LICENSEE by this AGREEMENT shall
continue for additional one (1) year terms contingent upon the sale of Fifty
Thousand (50,000) units of CONSUMER PRODUCT or PRODUCT if applicable beginning
with the date of termination of the first one (1) year period and continuing
for additional one (1) year periods for the duration of this AGREEMENT.
4. Term. Subject to provisions for prior termination set
forth hereinbelow, this AGREEMENT shall commence on the date first above
written and shall continue until terminated pursuant to its terms.
5. Warranties. As of the date of this AGREEMENT, LICENSOR and
INVENTORS represent and warrant as follows:
5.1 They are the sole and uncontroverted owner of all
interests in and rights to the PROPERTIES.
]
5.2 None of them has entered into any prior contract,
arrangement or AGREEMENT relating to the PROPERTIES, except that INVENTORS
entered into agreements necessary to transfer all rights and interest in and
to the PROPERTIES to LICENSOR, so that LICENSOR could enter into this
AGREEMENT.
5.3 The validity of the APPLICATIONS have not been called
into question by and third party or parties.
5.4 They are not aware of any reason, not made of record
in the United States Patent and Trademark Office with respect to the
applications for and prosecution of the PROPERTIES, or the basis of which the
validity of the APPLICATIONS could reasonably be questioned or that the patent
applied for will not be issued.
5.5 They are not aware of any patents, trademarks or
copyrights held by third parties that would prevent the practice of the
inventions described or claimed in the PROPERTIES nor are they aware of any
assertions by third parties that such third party or parties hold rights to
the PROPERTIES.
5.6 No claims, actions, or suits of any nature, including
accounts payable or liens, related to or effectuating the PROPERTIES or
PRODUCT exist or are pending or threatened.
5.7 The INDUSTRIAL PRODUCT produced by LICENSORS by and
under this AGREEMENT shall be of high standard, consistent with and conforming
to the specifications, designs and cost as approved by LICENSEE and set forth
on Schedule "B-D".
5.8 LICENSOR and CREATORS have ceased all promotion and
sales of CONSUMER PRODUCT of whatever kind and nature. LICENSOR and INVESTORS
further agree that they will not promote or sell the CONSUMER PRODUCT during
the term of this AGREEMENT.
6. Testmarketing. LICENSEE shall conduct testmarketing of
the PRODUCTS as a cost and as set forth in Schedule "E" attached hereto.
6.1 If LICENSEE, in its sole discretion, determine that
testmarketing has been successful, the LICENSEE shall, as promptly as
practical, notify LICENSOR of its decision to proceed pursuant to this
AGREEMENT. If LICENSEE, in its sole discretion determines that testmarketing
has been unsuccessful, the LICENSEE may at its sole option, within thirty (30)
days following the conclusion of testmarketing, terminate the AGREEMENT upon
written notice to the Licensor in accordance with this AGREEMENT.
7. Consideration and Costs.
7.1 In consideration of the rights conferred by this
AGREEMENT, LICENSEE shall pay LICENSOR the sum of Twenty Thousand and No/100
Dollars ($20,000.00) within fifteen (15) days of execution of this AGREEMENT
by all the parties hereto. LICENSEE shall pay LICENSOR the additional sum of
Thirty Thousand and No/100 Dollars ($30,000.00) simultaneously with its
notification to LICENSOR of its decision to proceed as set forth in paragraph
6.1 herein. LICENSEE will receive a credit from LICENSOR for the monies paid
pursuant to this sub-paragraph against license/royalty fees to be paid by
LICENSEE pursuant to paragraph 7.2 below.
7.2 LICENSEE shall pay to LICENSOR a license/royalty fee
as set forth in Schedule C per unit of CONSUMER PRODUCT sold by LICENSEE
pursuant to this AGREEMENT. Payment shall be made within thirty (30) days
after sale. LICENSEE shall not be responsible to pay any license/royalty fee
on any unit of CONSUMER PRODUCT returned to LICENSEE. LICENSEE shall receive
a credit from LICENSOR on all returned units against future royalty licensee
fees due under this AGREEMENT.
7.3 LICENSOR shall pay to LICENSEE a royalty fee as "set
forth" in Schedule C of this AGREEMENT for each and every unit of INDUSTRIAL
PRODUCT sold by LICENSOR until LICENSOR confers the rights to INDUSTRIAL
PRODUCT to LICENSEE pursuant to this AGREEMENT.
7.4 LICENSEE shall be responsible for all costs of
production and sale of CONSUMER PRODUCT. LICENSOR shall be responsible for
all costs for the manufacture and sale of INDUSTRIAL PRODUCT. LICENSOR'S
obligations herein shall cease upon the conferring of rights to INDUSTRIAL
PRODUCT to LICENSEE pursuant to this AGREEMENT>
8. Payments, Accountings and Audits.
8.1 LICENSEE shall provide LICENSOR quarterly statements
regarding LICENSEE's sale of "CONSUMER PRODUCT". LICENSOR shall provide
LICENSEE quarterly statements regarding LICENSOR'S sale of INDUSTRIAL PRODUCT.
Such calendar quarterly statements which are to be provided within thirty (30)
days of the end of each calendar quarter. The statements shall set forth an
explanation of the funds received and spent, together with appropriate back up
documentation and an accounting of any funds due LICENSOR and LICENSEE, and a
check for any funds due LICENSOR and/or LICENSEE.
8.2 There shall be no minimum guaranteed payments.
9. Document Turnover. Upon execution of this AGREEMENT,
LICENSOR shall turnover to LICENSEE all drawings, plans, specifications,
designs and any rights to use individual's names, initials, voice, signature,
photographs, likeness with regard to the PRODUCTS, all accounts, records,
leads, contacts, and the like, regarding LICENSOR'S exploitation or attempted
exploitation of the PROPERTIES or PRODUCT in order that LICENSEE may
manufacture, produce, exploit, or attempt to exploit the PROPERTIES and/or
CONSUMER PRODUCT.
10. LICENSOR'S Manufacture of PRODUCT. In their
manufacture of PRODUCT, LICENSOR and LICENSEE agree to be bound by the
specifications set forth in Schedule "D" attached hereto.
11. Breach, Cure and Termination.
11.1 LICENSOR'S Right to Terminate Upon Notice. This
AGREEMENT may be terminated upon thirty (30) days written notice by LICENSOR
to LICENSEE in the following events, provided that during the thirty (30) day
period, LICENSEE fails to cure the breach.
(i) LICENSEE manufactures and/or products,
advertises, promotes, markets, sells, or otherwise distributes any of
LICENSOR'S PRODUCTS not covered by this AGREEMENT;
(ii) LICENSEE becomes subject to any voluntary or
involuntary order of any governmental agency or court involving the recall of
any of the CONSUMER PRODUCTS and/or INDUSTRIAL PRODUCTS;
(iii) LICENSEE Takes any action in connection with
the manufacture and/or production, advertising, promotion, marketing, selling
or other distribution of CONSUMER PRODUCTS or INDUSTRIAL PRODUCTS which
damages or reflects adversely upon the LICENSOR or the PROPERTIES
(iv) LICENSEE breaches any of the provisions of this
AGREEMENT relating to the requirement that the CONSUMER PRODUCTS or PRODUCTS
if applicable conform to the specifications set forth in Schedule D;
(v) LICENSEE fails to make timely payment of
royalty/license fees when due;
(vi) As to worldwide rights of LICENSEE, fails to
satisfy contingencies or make minimum sales requirements set forth in
Paragraph 3.7;
(vii) LICENSEE arranges for the manufacture and/or
production of CONSUMER PRODUCTS and/or INDUSTRIAL PRODUCTS by third parties
not approved in writing by LICENSOR, or assigns, transfers, sublicenses or
otherwise encumbers this AGREEMENT or any of its rights hereunder without the
consent of LICENSOR which consent shall not be unreasonably withheld;
(viii) LICENSEE fails to maintain liability insurance
as required by the provisions of this AGREEMENT.
(ix) LICENSEE fails to make shipment of CONSUMER
PRODUCTS and/or INDUSTRIAL PRODUCTS in amounts necessary to fulfill all
orders;
(x) LICENSEE fails to commence sale, shipment, and
distribution of any CONSUMER PRODUCTS or INDUSTRIAL PRODUCTS in accordance
with the terms of this AGREEMENT;
(xi) LICENSEE fails to sell, ship, and distribute on
a timely basis CONSUMER PRODUCTS and/ or INDUSTRIAL PRODUCTS for any three
consecutive month period;
(xii) LICENSEE fails to make timely submission to the
account statements when due;
(xiii) A petition in bankruptcy, whether voluntary or
involuntary, is filed against LICENSEE or LICENSEE is adjudicated a bankrupt
or insolvent, or makes an assignment for the benefit of creditors, or an
arrangement pursuant to any bankruptcy law, or if the LICENSEE discontinues
its business or if a receiver is appointed for the LICENSEE or LICENSEE'S
business and such receiver is not discharged within thirty (30) days of such
appointment;
(xiv) LICENSEE commits a breach of any material
provision of this AGREEMENT not specified in Paragraph 11.1 above.
As to sub-paragraphs ii, iii, iv, viii, x, xiii and xiv "cure" shall
be defined as reasonable, timely and bona fide steps by the LICENSEE to begin
to cure the breach within the thirty (30) day cure period.
LICENSEE agrees that during the period necessary to cure a breach of
the provision of this AGREEMENT regarding insurance, it will cease to
manufacture CONSUMER PRODUCTS and/or PRODUCT until the breach is cured.
LICENSOR agrees that during that same period all provisions of this AGREEMENT
which mandate production and/or sale of CONSUMER PRODUCT and/or PRODUCT shall
be tolled.
11.2 LICENSEE'S Right to Terminate Upon Notice. This
AGREEMENT may be terminated upon thirty (30) days written notice by LICENSEE
to LICENSOR in the following events, provided that during the thirty (30) day
period, LICENSOR fails to cure the breach.
(i) LICENSOR becomes subject to any voluntary or
involuntary order of any governmental agency or court involving the recall of
any of the INDUSTRIAL PRODUCTS;
(ii) LICENSOR takes any action in connection with the
manufacture and/or production, advertising, promotion, marketing, selling or
other distribution of INDUSTRIAL PRODUCTS which damages or reflects adversely
upon the LICENSEE or the PROPERTIES;
(iii) LICENSOR breaches any of the provisions of this
AGREEMENT relating to the requirement that INDUSTRIAL PRODUCTS conform to the
specifications set forth in Schedule D;
(iv) LICENSOR fails to make timely payment of
royalty/license fees when due;
(v) LICENSOR arranges for the manufacture and/or
production of INDUSTRIAL PRODUCTS by third parties not approved in writing by
LICENSEE, or assigns, transfers sublicenses or otherwise encumbers this
AGREEMENT or any of its rights hereunder without the consent of LICENSEE which
consent shall not be unreasonably withheld;
(vi) LICENSOR fails to maintain liability insurance
as required by the provisions of this AGREEMENT.
(vii) LICENSOR fails to make shipment of INDUSTRIAL
PRODUCTS in amounts necessary to fulfill all orders;
(viii) LICENSOR fails to commence sale, shipment, and
distribution of INDUSTRIAL PRODUCTS in accordance with the terms of this
AGREEMENT;
(ix) LICENSOR fails to sell, ship, and distribute on
a timely basis INDUSTRIAL PRODUCTS for any three consecutive month period;
(x) LICENSOR fails to make timely submission of the
account statements when due;
(xi) A petition in bankruptcy, whether voluntary or
involuntary, is filed against LICENSOR or LICENSOR is adjudicated a bankrupt
or insolvent, or makes an assignment for the benefit of creditors, or an
arrangement pursuant to any bankruptcy law, or if the LICENSOR discontinues
its business or if a receiver is appointed for the LICENSOR or LICENSOR'S
business and such receiver is not discharged within thirty (30) days of such
appointment;
(xii) LICENSOR commits a breach of any material
provision of this AGREEMENT not specified in Paragraph 11.2 above.
As to sub-paragraphs i, ii, iii, vi, ix, xiii and xiii "cure" shall
be defined as reasonable, timely and bona fide steps by the LICENSEE to begin
to cure the breed within the thirty day cure period.
LICENSOR agrees that during the period necessary to cure a breach of
the provision of this AGREEMENT regarding insurance, it will cease to
manufacture INDUSTRIAL PRODUCT and/or PRODUCT until the breach is cured.
LICENSEE agrees that during that same period all provisions of this AGREEMENT
which mandate production and/or sale of INDUSTRIAL PRODUCT and/or PRODUCT
shall be tolled.
11.3 Additional LICENSEE Termination Rights. LICENSEE
shall have the right to immediately terminate this AGREEMENT by giving written
notice to the LICENSOR if the LICENSOR does any of the following:
(i) LICENSEE offers for sale, sells, advertises,
promotes, ships, distributes and/or uses in any way the PROPERTIES or CONSUMER
PRODUCT;
(ii) LICENSEE Breaches any of the representations or
warranties provided in this AGREEMENT; or,
(iii) LICENSOR or INVENTORS fails to provide LICENSEE
with all the information, records, accounts and other information regarding
their prior efforts to market, sell, distribute, manufacture or otherwise
exploit the PROPERTIES;
(iv) Three (3) or more times during a twelve (12)
month period, fails to make timely payment of the royalty fee when due;
(v) Fails to make timely submission of accounting
statements when due.
Upon termination by LICENSEE, as stated herein LICENSOR shall be
liable to LICENSEE for all actual, reasonable and consequential damages
suffered by LICENSEE from such breach and termination in addition to any other
remedies afforded in by-laws or pursuant to this AGREEMENT.
12. Force Majeure. In the event that there is default or
delay in performance of the terms of this AGREEMENT and if such default or
delay is caused by fire, flood, labor dispute, strike, war, governmental
restrictions or other event beyond the reasonable control of the respective
parties, then the time of such performance shall be extended for the period of
such force majeure.
13. Post Termination and Expiration Rights and Obligations.
13.1 Upon termination of this AGREEMENT, notwithstanding
anything to be contrary herein, all royalty/license fees shall become
immediately due and payable.
13.2 After termination the LICENSEE may sell CONSUMER
PRODUCTS and/or INDUSTRIAL PRODUCTS which are on hand or in the process of
manufacture at the time notice of termination is received upon the expiration
of the Term of this AGREEMENT for a period not to exceed sixty (60) days after
termination provided that:
(i) such PRODUCTS conform to the Specifications;
(ii) the royalty/license fees with respect to such
sixty (60) day period are paid on the fifth (5th) day of the month following
such sixty (60) day period; and
(iii) appropriate statements regarding details of the
sales are furnished to LICENSOR for the sixty (60) day period promptly
together with the royalty/license fees payment required by (ii) above; and
(iv) within twenty (20) days of such termination or
expiration, LICENSEE delivers to LICENSOR the details of the quantity of
CONSUMER PRODUCTS and/or INDUSTRIAL PRODUCTS in inventory or in the process of
manufacture.
13.3 At the end of the aforesaid sixty day period LICENSOR
will purchase at LICENSEE's sole option any or all of the following material
which LICENSEE has on hand at the time of termination at a price equal to the
cost thereof to LICENSEE:
(i) all inventory of PRODUCTS;
(ii) any amount of work in progress inventory, or
components used in the manufacture of the PRODUCTS, or promotional packaging
materials; and
(iii) any promotional and packaging materials.
13.4 After termination of this AGREEMENT, the PROPERTIES
and all LICENSE RIGHTS granted to the LICENSEE shall forthwith revert to the
LICENSOR and the LICENSEE shall refrain from further use of the PROPERTIES.
13.5 The LICENSEE acknowledges that its failure to cease
the manufacture, offering for sale, sale, advertising, promotion, shipment,
and distribution of the PRODUCTS or use in any way of the PROPERTIES at the
termination or expiration of this AGREEMENT will result in immediate and
irreparable damage to the LICENSOR and to the rights of any subsequent
licensee of the LICENSOR. The LICENSEE acknowledges and admits that there is
no adequate remedy at law for failure to cease such activities and the
LICENSEE agrees that in the event of such failure, the LICENSOR shall be
entitled to equitable relief by way of injunctive relief and such other relief
as a court of competent jurisdiction may deem just and proper.
14. Indemnification. LICENSOR shall indemnify, defend and
hold harmless LICENSEE, its affiliated companies and their respective
officers, directors, shareholders, employees, licensees, agents, successors
and assigns from and against any and all liabilities and expenses whatsoever,
including without limitation, claims, damages, judgements, awards,
settlements, investigations, costs and attorneys fees and disbursements which
any of them may incur or become obligated to pay arising out of or resulting
from (i) the manufacture of the PRODUCT, including, without limitation, any
product liability claims; (ii) The infringement of the proprietary rights of
any third party with respect to any of the PRODUCTS or any of LICENSOR'S
Properties in the course of the exercise by LICENSEE of the rights granted to
it under this AGREEMENT; or (iii) The breach by LICENSOR of any of its
representations, warranties, covenants, obligations, agreements or duties
under this AGREEMENT.
LICENSEE shall indemnify, defend and hold harmless LICENSOR, its
affiliated companies and their respective officers, directors, shareholders,
employees, licensees, agents, successors and assigns from and against any and
all liabilities and expenses whatsoever, including, without limitation,
claims, damages, judgements, awards, settlements, investigations, costs and
attorneys fees and disbursements which any of them may incur or become
obligated to pay arising out of or resulting from (i) the manufacture of the
PRODUCT, including, without limitation, any product liability claims.
15. INSURANCE. For as long as either PARTY continues to
manufacture the PRODUCT, that PARTY shall maintain, at its own expense, a
blanket liability insurance coverage, including, but not limited to, coverage
for advertising, manufacture, design and product liability for the PRODUCTS
manufactured in an amount not less than $2,000,000.00 per occurrence. The
only party to this AGREEMENT, shall be named as an additional insured on such
policy. All such insurance shall be placed with one or more carriers which
are rated "A" or better by A.M. Best rating service. Each PARTY shall deliver
to the other party evidence of (i) the procurement of such insurance in form
reasonably acceptable to the other party within fifteen (15) days of such
procurement and (ii) maintenance of such insurance in form reasonably
acceptable to the other party at such times as are requested by that party.
Each PARTY shall be provided no less than thirty (30) days prior written
notice from the other party or its insurer of cancellation of such policy.
16. Noncomeptition. The INVENTORS or LICENSOR, its
directors officers, principals and agents shall not be involved, directly or
indirectly, in the ownership, management or operation of any enterprise or
provide services to any enterprise that competes with LICENSEE'S exploitation
of the PROPERTIES of CONSUMER PRODUCT during the term of this AGREEMENT.
During the term of this AGREEMENT, LICENSEE will not be interested
in the manufacturing, sales or distribution of the PRODUCTS, except pursuant
to this AGREEMENT, or in the manufacturing, sale or distribution of any
product similar to the PRODUCTS. For a period of one year following
termination of this AGREEMENT, LICENSEE will not be interested in the
manufacturing, sale or distribution of any product similar to the PRODUCTS
covered herein.
17. Injunction. Each party acknowledges that (i) a breach
by either party of its obligations contained herein will result in irreparable
and continuing damage to other party for which there will be no adequate
remedy at law. Accordingly, in the event of any such breach, the LICENSEE
shall be entitled to injunctive relief and/or an order for specific
performance, with respect to such beach. The beaching party shall not oppose
such relief on the grounds that there is an adequate remedy at law, and such
right shall be cumulative and in addition to any other remedies at law or in
equity (including monetary damages) which the LICENSEE may have upon any such
breach.
18. Consents and Approvals. Whatever approval or consent
of either party is required pursuant to this AGREEMENT such approval shall not
be unreasonably withheld. In addition it specifically agreed that the
withholding of such consents and approvals shall be based solely on
commercially reasonable criteria. It is further agreed that should the party
whose consent or approval is required not respond within ten (10) business
days of the receipt of the request for approval or consent; such approval or
consent shall be deemed given.
19. Independent Contractor. No arty nor any of its
officers, employees, agents or representatives is an employee or agent of any
other party for any purpose whatsoever. Rather, each party is and shall at
all times remain an independent contractor with respect to the other party.
Except as expressly provided in this AGREEMENT, LICENSEE may not in any way
control the manner in which LICENSOR manufactures the PRODUCT. Except as
expressly provided in this AGREEMENT, LICENSOR may not in any way control the
manner in which LICENSEE exercises the rights granted under this AGREEMENT.
20. Further Actions. The parties agree to execute such
additional documents and to perform all such other and further acts as may be
necessary or desirable to carry out the purposes and intents of this
AGREEMENT.
21. Notices. Any communication to be given to any party to
this AGREEMENT shall be in writing and deemed delivered when it is mailed by
first class airmail, postage prepaid, certified, return receipt requested, and
addressed to the party at its address set forth below; or , two (2) days after
such is sent via an overnight delivery service (such as Federal Express or DHL
Delivery), deliver charges, prepaid, and addressed to the party at its address
set forth below:
If to LICENSOR or Inventors:
A2000 USA, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
If to LICENSEE:
INTERACTIVE MARKETING TECHNOLOGY, INC.
c/o Xxxxx Xxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxxx, Xxx Xxxxxx 00000
With a copy to:
PIRO, ZINNA, XXXXXXX & PARIS, P.C.
c/o Xxxxxx Xxxxxxx, Xx., Esq.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
22. Arbitration. Any dispute relating to this AGREEMENT
shall be resolved by arbitration to be administered by the American
Arbitration Association in
23. No Waiver. The failure of either party to enforce any
provision of this AGREEMENT or to terminate this AGREEMENT for breach of any
covenant or condition herein shall not operate thereafter as a waiver of that
provision or any other provision of this AGREEMENT.
24. Severability. Any provision of this AGREEMENT which in
any way contravenes or is unenforceable under any law of any nation or a state
in which this AGREEMENT is effective shall be deemed separable and not a party
of this AGREEMENT and to the extent void; however, all remaining provisions of
this AGREEMENT shall be valid and in full force and effect.
25. Sole Understanding. This AGREEMENT sets forth the
entire AGREEMENT and understanding between the parties as to the subject
matter described herein, and supersedes all prior discussions, correspondence,
negotiations and agreements between them relating hereto.
26. Construction. This AGREEMENT shall not be construed
against the party preparing it, and shall be construed without regard to the
identity of the person who drafted it or the party who caused it to be drafted
and shall be construed as if all parties had jointly prepared this AGREEMENT
and it shall be deemed their joint work product, and each and every provision
of this AGREEMENT shall be construed as though all of the parties hereto
participated equally in the drafting hereof; and any uncertainty or ambiguity
shall not be interpreted against any one party. As a result of the foregoing,
any rule of construction that a document is to be construed against the
drafting party shall not be applicable.
27. Governing Law. This AGREEMENT shall be governed in all
respects, including validity, interpretation, effect and enforcement, by the
laws of the State of New Jersey and applicable Federal Laws.
28. Counterparts. This AGREEMENT may be executed in
counterparts, each of which, when so executed and delivered, shall be an
original; however, such counterparts together shall constitute but one and the
same AGREEMENT.
29. Headings. The headings used herein are for convenience
of reference only and do not constitute a party of this AGREEMENT and shall
not be deemed to limit or effect any of the provisions hereof.
30. Survival. The provisions of Sections 5, 14, 15, 16, 17
and 20 shall survive the termination of this AGREEMENT.
31. Inurement. This AGREEMENT shall inure to the benefit
of, and be binding upon the parties hereto, their heirs, executors,
transferees, legal representatives and successors.
32. Consecutive Pages. This AGREEMENT contains fourteen
(14) consecutively number pages, including all the signature pages, each page
of which has been read and reviewed by all the parties hereto.
IN WITNESS WHEREOF, the parties have caused this AGREEMENT to be
executed, effective as of the day and year first written above.
LICENSOR:
A2000 USA, INC.
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxx
________________ By: ________________________________
Secretary President
LICENSEE:
INTERACTIVE MARKETING TECHNOLOGY, INC.
/s/ Xxxxx Xxx
_________________ By:___________________________________
Secretary President
Read, acknowledged, understood and agreed to individually by
/s/ Xxxxxx Xxxxxx
__________________________________
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxx
__________________________________
Xxxx Xxxxxx
