EXHIBIT 10.22
LICENSE AGREEMENT
This Agreement is made as of the 5th day of February 1998, by and between
COMMODORE SEPARATION TECHNOLOGIES, INC., a corporation organized and existing
under the laws of the State of Delaware ("Commodore"), and Maryland
Environmental Service, an agency and instrumentality of the State of Maryland
("MES").
RECITALS:
WHEREAS, Commodore owns certain Proprietary technology related to a
supported liquid membrane device and process which uses a liquid membrane
support, diluent mixtures, membrane temperature gradients, carrier solutions,
and other proprietary processes for which Commodore has filed one or more
patent applications with the United States Patent and Trademark Office, which
are described on Schedule A hereto which is incorporated by reference herein;
Commodore also owns proprietary know-how and other proprietary information
related to its supported liquid membrane device and process; (all of the
foregoing proprietary technology, know-how and information is hereinafter
referred to as Commodore's "Supported Liquid Membrane Technology");
Commodore's Supported Liquid Membrane Technology has the ability to process
wastewater and separate and/or remove from the wastewater metals such as
chromium; and
WHEREAS, Commodore has developed proprietary equipment ("Proprietary
Equipment") which incorporates and actuates the Supported Liquid Membrane
Technology for processing wastewater and for separating and removing chromium;
Commodore has also developed certain computer software, including source code
and object code (the "Software") which operates and controls the Supported
Liquid Membrane Technology and the Proprietary Equipment in combination with
other non-proprietary equipment. The Proprietary Equipment and the Software
are also described on Schedule A hereto and, together with the Supported
Liquid Membrane Technology, are hereinafter collectively referred to as
"Intellectual Property");
WHEREAS, MES operates leachate treatment facilities ("Leachate Treatment
Facilities") at the Dundalk Marine Terminal at the Port of Baltimore, Maryland
("Dundalk Marine Terminal") at which it must, inter alia, remove chromium from
leachate before discharging the leachate;
WHEREAS, pursuant to an Equipment Lease of even date herewith between the
parties hereto (the "Equipment Lease") MES has agreed to lease certain
equipment (the "Equipment") and by this Agreement, MES has agreed to license
the Intellectual Property described on Schedule A hereto from Commodore under
the terms and conditions of this Agreement for the purpose of separating and
removing chromium from the leachate generated by MES at the Dundalk Marine
Terminal Leachate Treatment Facilities; Commodore is willing to (i) lease the
Equipment to MES pursuant to the Equipment Lease (subject to certain
non-disclosure and other provisions) and (ii) license its Intellectual
Property with a right to use it with the Equipment to MES, all in accord with
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and for and in consideration of the terms and conditions
hereinafter set forth, and intending to be legally bound, the parties hereto
agree as follows:
ARTICLE I
1.1 Recitals. The foregoing recitals are incorporated herein as if set
forth at length.
ARTICLE II
License of Intellectual Property
2.1 License. Subject to the terms and conditions of this Agreement,
Commodore hereby licenses to MES (sometimes hereinafter referred to as the
"Licensee"), and MES hereby licenses from Commodore, for "Use" exclusively at
the Dundalk Marine, Terminal Leachate Treatment Facilities, the right and
license to Use the Intellectual Property. For purposes of this Agreement, "Use"
shall mean and include the right to use, but not to sublicense, the Intellectual
Property hereby licensed together with the Equipment leased by Commodore to MES
by an Equipment Lease of even date herewith, solely for the purpose of
separating and removing chromium from the leachate generated by the Dundalk
Marine Terminal Leachate Treatment Facilities; MES shall not use or commercially
exploit the Intellectual Property for any other purpose without the express
written consent of Commodore which consent Commodore may withhold for any reason
or for no reason.
2.2 Improvements and Modifications. Commodore also hereby licenses to
MES, solely for the purposes stated in Section 2.1 hereof, all improvements or
modifications to the Intellectual Property described on Schedule A hereto
developed by Commodore (if any) and, for purposes of this Agreement,
"Intellectual Property" shall include all improvements and modifications thereto
developed by Commodore. Provided, that if any such improvements or modifications
include Proprietary or non-proprietary equipment or hardware, MES shall
exclusively bear the cost of same. Commodore shall sell such equipment or
hardware to MES on terms no less favorable that it sells it to other third
parties. Provided, that nothing in this Agreement shall be construed to obligate
MES to license such improvements or modifications, to pay for the cost of same,
if it does not desire to license such improvements or modifications.
2.3 (a) Infringement. MES shall promptly notify Commodore of any
alleged infringement of the Intellectual Property described in Article II hereof
of which MES becomes aware.
(b) Commodore, as the owner of such Intellectual Property,
shall have the exclusive right, but shall not be obligated, to commence suit
for any such infringement of such intellectual property, and MES agrees that
Commodore, with the prior approval of the Attorney General of the State of
Maryland, may cause MES to join it as a plaintiff to any such suit. The cost of
any such infringement action commenced by Commodore, including all out-of-pocket
expenses incurred by MES as a result of its participation in such action, shall
be borne by Commodore and Commodore shall promptly reimburse MES its
out-of-pocket costs upon demand by MES, but in no event later than thirty (30)
days following such demand by MES. Any recovery or damages awarded in such
action shall be applied, first to reimbursement of MES out-of-pocket litigation
costs and fees, and second, to the reimbursement of Commodore litigation
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costs and fees, and the balance of such recovery or damages, if any, shall be
retained by Commodore.
(c) If within two (2) months after notice by MES to Commodore,
Commodore has been unsuccessful in persuading the alleged infringer to desist
and has not brought an infringement action, or if Commodore notifies MES at any
time of its intention not to bring suit against the alleged infringer, or to
discontinue any suit commenced against an infringer, MES shall have the right,
but shall not be obligated, to commence suit for such infringement, or to
continue to prosecute the existing suite as the case may be, and MES may, in
such suit, use the name of Commodore as a party plaintiff and/or may cause
Commodore to join it as a party to such suit and/or MES may substitute itself as
the party plaintiff/successor to Commodore, as the case may be. The cost
of any such infringement action commenced and/or continued by MES shall be borne
by MES. Any recovery or damages awarded in such action shall be applied, first,
to the reimbursement of MES litigation costs and fees, and the balance of such
recovery or damages, if any, shall be retained by MES.
ARTICLE III
Royalty Payments/Consideration
3.1 Royalty. For the Intellectual Property licensed pursuant to this
Agreement, MES shall pay to Commodore and Commodore agrees to accept a royalty
of Ten ($10.00) Dollars.
ARTICLE IV
Indemnification
4.1 Obligation of MES to Indemnify. Provided that Commodore is not in
default of its obligations under this Agreement, MES shall indemnify and hold
harmless Commodore and its predecessors, successors and assigns and their
respective agents, servants, employees, officers, directors, and members
(collectively, the "Indemnitees"), from and against any and all losses,
liabilities, damages or deficiencies (including interest, penalties and
reasonable attorneys' fees) arising out of or due to any breach of any of the
representations, warranties, covenants or undertakings (whether or not so
captioned) of MES contained in this Agreement or in any document, certificate or
schedule annexed hereto or delivered to Commodore pursuant to this Agreement or
contained in the Equipment Lease of even date herewith between the parties
hereto. (This indemnification undertaking does not extend to or cover actions or
claims arising in tort and which are not from a breach of this Agreement.)
4.2 Obligation of Commodore to Indemnify. Provided that MES is not in
default of its obligations under this Agreement, Commodore shall indemnify and
hold harmless MES and its successors and assigns and its respective agents,
servants, employees, officers, directors and shareholders (collectively, the
"Indemnitees"), from and against any and all losses, liabilities, damages or
deficiencies (including interest, penalties and reasonable attorneys' fees)
arising out of or due to any breach of any of the representations, warranties,
covenants or undertakings (whether or not so captioned) of Commodore contained
in this Agreement or in any document,
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certificate or schedule annexed hereto or delivered to MES pursuant to this
Agreement or contained in the Equipment Lease of even date herewith between the
parties hereto. (This indemnification undertaking does not extend to or cover
actions or claims arising in tort and which are not from a breach of this
Agreement.)
4.3 Notice to Indemnifying Party. Promptly after the receipt by the party
("Indemnitee") hereto of formal notice of any claim or the commencement of any
action or proceeding giving rise to a right to indemnity, such Indemnitee
shall, if a claim with respect thereto is to be made against any party or
parties, as the case may be, obligated to provide indemnification
("Indemnifying Party") pursuant to Article IV hereof, give such indemnifying
Party written notice of such claim or the commencement of such action or
proceeding. Such notice shall be a condition precedent to any liability of the
Indemnifying Party under the indemnification agreements contained herein. In
any event, the Indemnitee, the Indemnifying Party and their counsel shall
cooperate in the compromise of, or defense against, any such asserted
liability and both the Indemnitee and the Indemnifying Party shall have the
right to participate in the defense of such asserted liability and neither may
settle or compromise any claim over the objection of the other.
4.4 Setoff. With respect to any indemnity claim made by an Indemnitee,
in the event that such Indemnitee suffers any loss, liability, damages or
deficiencies (including interest, penalties and reasonable attorneys' fees)
arising out of or due to any breach of any of the representations, warranties or
covenants or undertakings (whether or not so captioned) of the other (i.e., the
Indemnitor) contained in this Agreement or in any document, certificate or
schedule annexed hereto, and provided said Indemnitee gives notice to the other
in accordance with Section 4.3 of this Agreement, then said Indemnitee shall be
entitled to withhold payment of and/or set-off any monies or in-kind payment to
the extent of such indemnifiable loss which it owes or may hereafter become
liable to pay to said other party under this Agreement.
ARTICLE V
MES Covenants
MES hereby covenants and agrees that:
5.1 Work Product. For a period beginning with MES's first exposure to
Commodore's Intellectual Property or beginning on the effective date hereof,
whichever first occurs, and expiring ten (10) years from the expiration of this
Agreement (i) Commodore shall have and, except as hereinafter provided,
exclusively own the sole proprietary interest in any Work Product of MES or its
employees (as hereinafter defined) or any Other Confidential Information as
hereinafter defined relating to Commodore's Intellectual Property or Proprietary
Information (as hereinafter defined), and (ii) except as hereinafter provided,
MES hereby expressly, irrevocably and perpetually transfers and assigns
exclusively to Commodore or its designee, all rights to, title and interest in,
any such MES Work Product. For purposes of this Agreement, the term "Work
Product" means and refers to any and all ideas, inventions, know-how,
copyrights, patents, trade secrets, improvements, modifications, sketches,
models and all documents thereto, any other work product and/or intellectual
property developed by MES either solely or jointly with others, where said MES's
Work Product relates to the intellectual Property hereby licensed or Commodore's
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Proprietary Information, or where said Work Product is developed wholly
or partly with the use of Commodore's time, material, personnel, facilities,
Intellectual Property or Proprietary Information and MES further agrees,
immediately upon discovery, to disclose any and all such Work Product to
Commodore without delay. MES shall, from time to time as requested by
Commodore; take all appropriate steps to establish or document Commodore's
ownership in and place Commodore in possession of such Work Product, including
but not limited to, the execution of appropriate copyright and/or patent
applications or assignments, and MES agrees not to disclose any knowledge of
the existence and contents of such Work Product herein unless and until
released in writing by Commodore from such obligations. All such MES's Work
Product shall automatically be and become Proprietary Information of
Commodore. For purposes of this Agreement, "Other Confidential Information"
means and refers to drawings, blueprints, other reproductions, models,
patterns, samples, devices or parts thereof, data, data sheets, data books,
reports, client lists, any information provided by Commodore, or any other
object or document developed for Commodore's Intellectual Property or
Proprietary Information. All such information, in addition to MES's Work
Product, shall be confidential. Provided, however, that with respect to MES'
Work Product which would be considered a "public record" within the meaning of
Section 10-617(d) of the State Government Article of the Annotated Code of
Maryland (the "Maryland Code") or which would be considered a record which
must be archived pursuant to subtitle V of the Maryland Code, then MES may own
the documentary material embodying such Work Product but (i) the intangible
Work Product referred to or contained within that documentary material shall
nonetheless be considered "Commercial Information" within the meaning of
Section 10-617(d) of the Maryland Code and (ii) Commodore shall nonetheless
own the intangible Work Product referred to or contained within that
documentary material.
5.2 Non-Disclosure.
(a) It shall hold in strict confidence all of Commodore's Intellectual
Property, Other Confidential Information, and other Proprietary Information,
including MES Work Product, and all Other Confidential Information, and any
information, either written or oral, originated by or peculiarly within the
knowledge of Commodore and MES agrees it will disclose any of the foregoing
within its own organization only to its employees or authorized contractors who
are (i) directly assigned to work within the scope of this Agreement, (ii) have
a bona fide need to know and use such Intellectual Property, Other Confidential
Information and (iii) have executed an agreement with MES prohibiting the
unauthorized use, duplication and disclosure of all such information in
accordance with this Agreement. Without limiting the generality of the
foregoing, MES will exercise no less care to safeguard such Information acquired
from Commodore than MES exercises in safeguarding its own competitive sensitive
or proprietary information.
(b) It will not disclose, duplicate or use any such information
acquired from Commodore, in whole or in part, for any purposes other than those
expressly permitted herein. MES agrees that it will not disclose any such
information to any third party, commercially exploit in any manner whatsoever,
or use same for its benefit or the benefit of any third party without the
express written consent of Commodore. MES shall not perform or permit others to
perform decompilation, disassembly or reverse engineering of any items of such
Information disclosed hereunder. Violation of the terms of this Paragraph shall
be cause for appropriate injunctive relief to stop such unauthorized disclosure,
in addition to any other available legal or equitable remedy.
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The foregoing restrictions on MES's disclosure and use of such information
acquired from Commodore shall not apply to information;
(i) known to MES prior to receipt from Commodore;
(ii) which is in public knowledge, or becomes so, without breach of
MES's obligations hereunder or the breach of MES's agents,
servants, employees of contractors;
(iii) rightfully acquired by MES prior to the time of disclosure
hereunder from a third party without restriction on disclosure or
use;
(iv) disclosed by Commodore to an unaffiliated third party without
restriction on disclosure or use,
(v) independently developed by MES without resort to Information
provided by Commodore, or;
(vi) as to which MES has received express written consent from an
authorized officer of Commodore to disclose or use.
(vii) except as otherwise provided, required to be disclosed by law,
subpoena or court order. Provided, that should MES receive a
demand for disclosure of any of Commodore's Intellectual
Property, Other Confidential Information or other Proprietary
Information, or should MES receive a subpoena or court order to
produce same, it shall immediately notify Commodore of said
demand, subpoena or court order to afford Commodore the earliest
opportunity to interpose any objection to such demand, subpoena
or court order.
In the case of any of events (i), (ii), (iii), (iv), (v), (vi) or (vii)
above, the removal of restrictions shall be effective only from and after the
date of occurrence of the applicable event and shall only apply to the portion
of Information which falls within the scope of such events.
(c) It waives its right to argue that Commodore's Intellectual Property
is not proprietary or confidential "Commercial Information" within the meaning
of Section 10-617(d) of the State Government Article of the Annotated Code of
Maryland or that it falls within any exception to non-disclosure allowed in
subparagraph (b) of this Paragraph 7.3.
5.3 Remedies. The parties agree to the reasonableness of the
restrictions in this Article and otherwise contained in this Agreement and
acknowledge that they have been negotiated at arms-lengths for fair and adequate
consideration, that they are of the essence of Commodore's willingness to enter
into this Agreement with MES and MES agrees that such restrictions shall be
legally enforceable and shall not be challenged by MES in any court proceeding.
MES agrees that Commodore's remedies at law for a breach of such restrictions
will be inadequate and that, in connection with any such breach, Commodore will
be entitled, in addition to any other available
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remedies, to temporary and permanent injunctive relief without the necessity of
proving actual damage or immediate or irreparable harm. Notwithstanding the
foregoing, if any court shall determine such restrictions to be unreasonable,
the parties agree to the reformation of such restrictions by the court to limits
which it finds to be reasonable and that MES will not assert that such
restrictions should be elimimted in their entirety by such court or that this
Agreement shall be nullified in its entirety.
5.4 Applicable Laws. MES agrees to operate the Equipment and to carry
on its business involving the Intellectual Property in accordance with all
applicable laws, rules, regulations, orders or other requirements. Without in
any way limiting the generality of the foregoing, and except as set forth in
Section 8.2 of the Equipment Lease, MES, at its sole cost and expense, hereby
covenants and agrees to properly dispose of (i) all chromium (including total
chromium) contained in the strip solution which cannot be resold or recycled
(ii) all chromium (including total chromium) contaminated sludge generated by
the CST System (iii) all other hazardous substances contained in or mixed with
the wastewater such as leachate or the strip solution and (iv) all components of
the Equipment contaminated with any hazardous or toxic substances which are
discarded during the term of this Agreement or, at Commodore's election, which
MES does not exercise its option to purchase pursuant to Section 2.14 of the
Equipment Lease.
ARTICLE VI
Commodore Covenants
6.1 Non-Disclosure.
(a) Commodore agrees to hold in strict confidence all of MES's
Intellectual Property, Other Confidential Information, and other Proprietary
Information, including Commodore Work Product, and any information, either
written or oral, originated by or peculiarly within the knowledge of MES and
Commodore agrees it will disclose any of the foregoing within its own
organization only to its employees or authorized contractors who are (i)
directly assigned to work within the scope of this Agreement, (ii) have a bona
fide need to know and use such Intellectual Property, Other Confidential
Information and (iii) have executed an agreement with Commodore prohibiting the
unauthorized use, duplication and disclosure of all such information in
accordance with this Agreement. Without limiting the generality of the
foregoing, Commodore will exercise no less care to safeguard such Information
acquired from MES than Commodore exercises in safeguarding its own competitive
sensitive or proprietary information.
(b) Commodore agrees that it will not disclose, duplicate or use any
such information CD acquired from MES, in whole or in part, for any purposes
other than those expressly permitted herein. Commodore agrees that it will not
disclose any such information to any third party, commercially exploit in any
manner whatsoever, or use same for its benefit or the benefit of any third party
without the express written consent of MES. Violation of the terms of this
Paragraph shall be cause for appropriate injunctive relief to stop such
unauthorized disclosure, in addition to any other available legal or equitable
remedy.
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The foregoing restrictions on Commodore's disclosure and use of such information
acquired from MES shall not apply to information;
(i) known to Commodore prior to receipt from MES;
(ii) which is in public knowledge, or become so, without breach of
Commodore's obligations hereunder or the breach of Commodore's
agents, servants, employees of contractors;
(iii) rightfully acquired by Commodore prior to the time of disclosure
hereunder from a third party without restriction on disclosure or
use;
(iv) disclosed by MES to an unaffiliated third party without
restriction on disclosure or use,
(v) independently developed by Commodore without resort to
Information provided by MES, or;
(vi) as to which Commodore has received express written consent from
an authorized officer of MES to disclose or use.
In the case of any of events (i), (ii), (iii), (iv), (v), or (vi)
above, the removal of restrictions shall be effective only from and after the
date of occurrence of the applicable event and shall only apply to the portion
of Information which falls within the scope of such events.
6.2 Commodore covenants to make its representatives available for
consultation and support of the Intellectual Property. All representatives will
be billed to MES according to Commodore's standards schedule of rates for its
employees and representatives at the rates shown on Schedule 8.2 attached hereto
and incorporated by reference herein. MES shall have no obligation to pay any
consultation fees provided pursuant to this section unless specifically
authorized in advance by MES.
ARTICLE VII
Commodore Warranties and Repsentations
Commodore hereby represents and warrants that:
7.1 No Infringement. To the best of its knowledge, information and
belief, the Intellectual Property does not infringe any proprietary rights or
interests of others.
7.2 No Liens. It owns the Intellectual Property free and clear of any
lien or encumbrance, or right or claim of any third party.
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ARTICLE VIII
Term
8.1 Initial Term. Except as hereinafter provided in Section 8.3 and 9.3
hereof, this Agreement shall become effective on the day and date above written
and continue in full force and effect for a minimum term of two years (the
"Initial Term") from the Commissioning Date of the Equipment at Dundalk Marine
Terminal as defined in the Equipment Lease between the parties hereto.
8.2 Renewal. Either party may unilaterally terminate this Agreement at
the expiration of the Initial Term by giving notice to the other party of its
intention to do so at least 90 days prior to the expiration of the Initial Term
In the absence of notice by either party to the other within 90 days of the
expiration of the initial Term of their intention to terminate this Agreement,
the Initial Term shall be deemed to be extended from year to year. Thereafter,
either party may unilaterally terminate this Agreement at the end of any one (1)
year renewal term by giving the other party at least 90 days prior written
notice to the other whereupon this Agreement shall terminate upon the expiration
of any such renewal term.
8.3 Termination. This Agreement shall automatically and immediately
terminate upon:
(a) the expiration of the Initial Term or if not then terminated,
upon expiration of any extension thereof in accordance with the
Section 10.2 hereof;
(b) at Commodore's option, a breach of this Agreement or the
Equipment Agreement of even date herewith and a failure by MES to
cure after 10 days written notice of said breach to MES.
(c) the valid termination of this Agreement or the Equipment Lease
for any other reason.
ARTICLE IX
Miscellaneous
9.1 Inspection and Audit. The parties agree that Commodore may, upon
reasonable advance notice, inspect MES's facilities at any time to verify the
adherence to the terms of this Agreement. MES agrees that Commodore may, at its
sole cost and expense, audit its books and records at any time, upon reasonable
notice, to ensure compliance with this Agreement.
9.2 Metering. The parties agree that Commodore may install a wastewater
volume or flow metering device to measure the volume of water processed by its
Intellectual Property hereby licensed and by the Intellectual Property sold to
MES pursuant to the Equipment Lease, of even date herewith.
9.3 Survival. Upon the expiration or termination of this Agreement for
any reason, the parties hereto agree that all of the representations,
warranties, terms, conditions, undertakings, covenants and promises (whether or
not so captioned) contained herein by either one of them with respect to
remedies, the covenants against competition, confidentiality, non-disclosure,
indemnification, set-off, return of Intellectual Property and other similar
terms and conditions
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which would survive termination or expiration of an agreement of this nature in
order to fully effectuate the intention of the parties shall survive and shall
not be affected by said expiration or termination.
9.4 Notices. All notices, requests, consents and other communications
required or permitted to be given hereunder shall be in writing and shall be
deemed to be duly given if delivered personally or sent by telefax or by
registered or certified mail (notices sent by telefax or mailed shall be deemed
to have been given on the date received), as follows or to such other address
as any party shall designate by notice in writing to the others in accordance
herewith:
(i) To: Commodore
c/o Xxxxx XxXxxxxxx
Commodore Separation Technologies, Inc.
0000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
(ii) To: Maryland Environmental Service
Attention: Director
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
9.5 Entire Agreement. This Agreement (including the Schedules and
Exhibits) contains the entire agreement among the parties. This Agreement shall
be construed and interpreted in pari materia with the Property Equipment Lease
of even date herewith between the parties hereto and supersedes all prior
arrangements or understandings, written or oral, with respect thereto.
9.6 Amendments. Any term or condition of this Agreement may be amended
or modified in whole or in part at any time, to the extent authorized by
applicable law, by an agreement in writing, authorized and executed in the same
manner as this Agreement by the parties hereto. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any waiver on the part of any party of any right,
power of privilege hereunder, nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder. The
rights and remedies herein provided are cumulative and are not exclusive of any
rights or remedies which any party may otherwise have at law or in equity. The
rights and remedies of any party arising out of or otherwise in respect of any
inaccuracy in or breach of any representation, warranty, covenant or agreement
contained in this Agreement shall in no way be limited by the fact that the act,
omission, occurrence or breach is based may also be the subject matter of any
other representation, warranty, covenant or agreement contained in this
Agreement (or in any other agreement between the parties) as to which there is
no inaccuracy or breach.
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9.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.8 Exhibits. The Exhibits and other documents attached to or delivered
herewith are hereby incorporated and made a part of this Agreement as if set
forth in full herein.
9.9 Drafting. No presumption shall operate in favor of or against any
party in the construction or interpretation of this Agreement as a consequence
of a party's responsibility for drafting this Agreement.
9.10 Attorney and Professional Fees. Each party will pay his/her own
attorney or professional fees in connection with this Agreement or settlement
discussions leading to this Agreement.
9.11 Recitals. The foregoing recitals are incorporated herein as if set
forth at length.
9.12 Captions. The captions of Sections hereof are for convenience only
and shall not control or affect the meaning or construction of any of the
provisions of this Agreement.
9.13 Binding Agreement. This Agreement shall be binding upon, and inure
to the benefit of, the parties hereto and their respective designees,
successors, agents, servants or employees, heirs and assigns.
9.14 Choice of Law and Forum: Severability. This Agreement shall be
governed by and construed in accordance with the laws of State of Maryland
without regard to conflict of law rules.
9.15 Access to Dundalk Marine Terminal. To the extent permitted by law,
MES agrees to allow Commodore access to Dundalk Marine Terminal for the sole
purpose of showing third parties the Equipment in operation. In order to enter
Dundalk Marine Terminal, Commodore must first provide to MES the name of each
individual for whom permission to enter is sought, along with the individuals'
address, business affiliation, and such other information as MES may reasonably
request. Commodore and its party may not enter Dundalk Marine Terminal until
MES first provides permission, which permission shall not be unreasonably
denied. MES may require that all persons entering Dundalk Marine Terminal first
agree to release, hold harmless and indemnify MES, MPA, the State of Maryland,
and all their officers and employees from liability for any injury or damage
incurred as a result of the persons entering Dundalk Marine Terminal.
9.16 Publication. Except as hereinafter provided, Commodore reserves
the prior right to approve all publications or press releases by MES relating to
the Intellectual Property or its performance which approval should not be
unreasonably withheld. Provided, that this reservation shall not apply to any
information which MES is obligated to report to the Maryland General Assembly or
Executive Branch agency or which it must provide pursuant to a judicial or
administrative order or subpoena.
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9.17 Removal. Upon termination of this Agreement, Commodore shall have
a reasonable time within which to enter the site where the Intellectual Property
is located and to remove the Intellectual Property.
9.18 Data Sharing MES. MES covenants and agrees to share with
Commodore on a timely and periodic basis all performance related data from the
Equipment. Commodore covenants and agrees to pay for or reimburse MES for the
reasonable cost of providing photocopies of such data, postage and other similar
out-of-pocket expenses for same.
IN WITNESS WHEREOF and intending to be legally bound, the said parties
have hereunto set their hands and seals this 5th day of February, 1998.
Attest: Commodore Separation Technologies, Inc.
/s/ Xxxxxx X. Xxxxx By: /s/ Xxxxxxx X. Xxxxx
---------------------------- -----------------------------------
Xxxxxx X. Xxxxx Xxxxxxx X. Xxxxx
Title: Executive Assistant Title: President and C.O.O.
Witness: Maryland Environmental Service
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxx
----------------------------- --------------------------------
Xxxxx X. Xxxx
Title: Director
Approved for legal form and
sufficiency this 4th day of
January, 1998
/s/ XXXXXXXXXX
----------------------------
Assistant Attorney General
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