LICENSE AGREEMENT
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AGREEMENT made between Wellington Group Holdings Pty Ltd with a mailing
address of 00 Xxxxxxxxxx Xxxxxx. Xx. Xxxxx Xxxxxxxx 0000 Xxxxxxxxx (Licensor)
and Cranston Inc., with a mailing address of 00 Xxxx Xxxxxx Xxxxx 000, Xxxxx
Xxxx, X.X. 00000 ("Licensee").
RECITALS
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WHEREAS, Licensee wishes to obtain the right to market a Hair growth
inhibiting formulation ("Formula") along with the use of clinical trial
information ("Clinical Information") associated thereto (collectively, the
"Product") more specifically described in Exhibit A), nationally and
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internationally by direct marketing, infomercial, telephone solicitation, and by
website; and
WHEREAS, Licensor owns rights to the Product; and has all of the necessary
rights and authority to grant the license which is the subject matter of this
agreement.
WHEREAS, Licensor is willing to license the Product to the Licensee under
the terms and conditions set forth below.
AGREEMENT
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NOW THEREFORE in consideration of the mutual promises contained herein and
other good and valuable consideration the sufficiency and adequacy of which is
hereby acknowledged, the parties agree as follows:
1. License. Licensor grants Licensee a license in the Product,
Licensee accepts the license from Licensor. The License shall include the
following rights and restrictions:
a. Licensee will have the exclusive worldwide right to market the
Product nationally and internationally by direct marketing, infomercial,
telephone solicitation, and via Internet sales.
b. The parties expressly agree that Licensee shall not have any
right, title, or interest in Licensor's formulas, methodology, empirical data,
or other trade secrets except to the extent provided by this Agreement.
2. Fees. Licensee shall pay to Licensor, a licensing fee ("Fee" or
"Fees") for the license and use of the Product as set forth below.
a. Per Unit Basis. Licensee shall purchase all Product from
Licensor at a $(Confidential Treatment Requested) price per unit. It is
expressly understood by both parties that the licensing fee for Product is
incorporated into the price of Product.
b. Minimum quantity. The minimum order quantity for the initial
order of Product is 10,000 units. The minimum order quantity for all subsequent
orders is 25,000 units.
c. Initial Fee Payment. Licensee shall pay and deliver to
Licensor, $20,000 (50% of the $40,000 due for the initial order). The License
set forth herein shall not be deemed effective unless and until Licensor is in
receipt of this $20,000 payment.
d. Subsequent Payment for Initial Order. A subsequent payment of
$20,000 shall be received by Licensor prior to delivering initial order to
Licensee,
e. Late Payment, Penalty. In the event Licensee has not paid Fees
within sixty (60) days of their billing, Licensor or the Certified Manufacturer
may make a demand for fees upon written notice to Licensee. Licensee shall have
fifteen (15) days from the date of written notice to pay such outstanding Fees.
Licensee's failure to pay Fee's after the expiration of fifteen (15) days from
Licensor's written notice shall be cause for Termination as set forth in Section
13. Licensee agrees that Fees are not subject to any right of counterclaim or
offset.
f. Payment Type - All purchases and payments for product or fees
will be made via wire transfer to the following account:
Bank Name: National Australia Bank Limited
Account Name: Wellington Group Holdings Pty Ltd
Account No: 00-000-0000
Branch No: 023-155
3. Term. The term of this License Agreement will continue so long as
Termination is not declared as set forth in Section 13 herein,
5. Use of Clinical Information. The licensee shall have the
non-exclusive right to use the Clinical Information developed in pilot clinical
trials performed for the Licensor. The use of the Clinical Information is
limited only to the Formula and shall not be used by Licensee with any other
product without the express written consent from Licensor. The Licensor makes no
representations or warranties whatsoever concerning the data derived from tile
clinical trials or any claims whatsoever regarding the Product's performance but
warrants that all trials were legitimately conducted. The use of clinical trial
data shall be subject to the Licensee's assumption of risk as act forth in
Section 8 of this Agreement. The use, marketing or application of the Clinical
Information for any other purpose other than for the marketing of the Formula
shall be cause for Termination as set forth in Section 13.
6. Protection of Trade Secrets. "Trade Secret" means other scientific
or technical information, design, process, procedure, formula, or improvement
relating to either the Product, operation or the assets of the Licensor and/or
Certified Manufacturer that is valuable and not generally known to competitors
of the Licensor, including but not limited to, the specialized information and
technology the Licensor may have with respect to the design, manufacture,
capabilities, and performance of the Product or services of the Licensor. The
Licensee hereby acknowledges that the Product contains valuable Trade Secrets of
the Licensee. The Licensee hereby expressly covenants and agrees that it shall
not reverse engineer or otherwise attempt to discover the Trade Secrets in the
Product for any purpose whatsoever. The parties acknowledge that no such trade
secrets have been reveled in this document. The covenant shall survive
indefinitely the termination of this Agreement. The Licensee acknowledges that
a violation of this covenant would irreparably harm the Licensor and that if it
were violated, the Licensor would not have an adequate remedy at law and that
Licenser shall be entitled to receive an injunction against a breach or
threatened breach of this covenant.
7. Non-Competition. Licensee hereby agrees that it shall not develop a
new or a license another product and market it under the trade name of the
Product, or under a confusingly similar name. The covenant shall survive
indefinitely the (elimination of this Agreement. The Licensee acknowledges that
a violation of this covenant would irreparably harm the Licensor and that if it
were violated, the Licensor would not have an adequate remedy at law, and that
Licensor shall be entitled to receive au Injunction against a breach OT
threatened breach of this covenant.
8. Assumption of Risk. The Licensee hereby agrees to hold harmless and
hereby hold harmless the Licensor from any claims the Licensee may make in
regard to Product results including Product results that may arise under the
Clinical Information as set forth in Section 5 of this Agreement, or any other
matters that may be utilized by the Licensee in marketing the Product including
but not limited to sales "puffing." Any claims Licensee uses to market the
Formula in connection with its sale are its own risk and without recourse to
Licensor.
8a. Licensor shall compel the manufacturer of Product to maintain
product liability insurance in the amount of 2 million dollars and shall name
Licensee as an added insured under said policy.
9. Confidentiality. Licensee shall keep confidential all information
regarding the business and affairs of Licensor which it may acquire as a result
of this Agreement and which is not otherwise generally available to the public
("Confidential Information"). Licensee acknowledges and agrees that the
Confidential Information is the exclusive property of Licensor and shall not be
disclosed to the public. It is further agreed that the existence of this
Agreement shall constitute "Confidential Information" and shall not be disclosed
to any third party. Each party shall
make reasonable efforts to prevent their respective agents and employees from
disclosing any Confidential Information.
This covenant shall survive indefinitely the termination of this Agreement.
The Licensee acknowledges that a violation of this covenant would irreparably
harm the Licensor and that if it were violated the Licensor would not have an
adequate remedy at law. The Licensor shall be entitled to receive an injunction
against a breach or threatened breach of this covenant.
10. Choice of Law. This Agreement shall be construed in accordance
with the Laws of the State of Maine.
11. Jurisdiction and Venue. The parties to this Agreement agree to
submit to the jurisdiction of the state and federal courts of the States of
Maine or any jurisdiction where the Licensor maintains its records
12. Non-Assignment.
a. No Assignment. It is agreed that none of the rights of
Licensee provided for in this Agreement are transferable or assignable without
the prior, express, written consent of Licensor. Licensor may not unreasonably
withhold consent to any assignment. Any purported assignment without the
consent of Licensor shall be null and void.
b. No Sub-License. It is agreed that Licensee shall have no right
to sub-license the License granted under this Agreement without the prior,
express, written consent of Licensor. Licensor may not unreasonably withhold
consent to a sub-license.
c. Licensor Agreement. It is agreed that the Licensor may assign
its rights set forth in this agreement at any time during the term of the
agreement.
13. Termination.
a. Breach. In the event of a breach or other non-performance of
the terms of this Agreement, this Agreement shall terminate upon fifteen (15)
days within notice of termination from Licensor to Licensee. Licensee shall
have fifteen (15) days to cure any failure to meet the terms of this Agreement.
b. Bankruptcy or Insolvency. Either party hereto may terminate
this Agreement for cause if the other party hereto becomes the subject of a
voluntary or involuntary petition in bankruptcy or any proceeding related to the
insolvency, receivership, liquidation or composition for the benefit of
creditors.
c. Unpaid Fees. In the event of the termination of this
Agreement, Licensee shall be responsible for payment of all Fees accrued prior
to the date of Termination. In the event Licensee's breach shall derive from
the failure to meet minimum purchases, Licensor's sole remedy shall be to
terminate this license. Licensee shall remain responsible for all goods
received and on order, but shall not be liable for any shortfall below the
minimums set forth elsewhere herein. Applicable penalties for delay in payment
shall apply.
d. Survival. In the event of the termination of this Agreement,
the obligations pursuant to Section 6 (Protection of Trade Secrets), Section 7
(Non-Competition), Section 8 (Assumption of Risk), and Section 9
(Confidentiality) shall survive indefinitely termination of this Agreement or in
accordance with the survival terms set forth individually in those sections.
14. Miscellaneous.
a. Non-Waiver. A failure by Licensor to exercise any right
hereunder, or otherwise waive or condone any delay or failure by Licensee to
comply with any of the terms and conditions of this Agreement shall not
constitute a continuing waiver of any such requirement or provision of any of
the rights of Licensor pursuant to this Agreement.
b. Severability. If any portion of this Agreement shall be
construed to be illegal or invalid by a court of competent jurisdiction such
construction shall not affect the legality or validity of any of the provisions
hereof, and the illegal or invalid provisions will be deemed stricken and
deleted herefrom to the same extent and effect as if never incorporated herein,
but all other provisions hereof shall continue in full force and effect.
c. Amendment. This agreement shall not be altered or amended
except in writing executed by the parties.
d. Notices. All notices under this Agreement shall be sent by
certified mail, return receipt requested to the address given below or to such
other addresses as either party may designate in writing to the other.
To Licensor: Wellington Group Holdings Pty Ltd
00 Xxxxxxxxxx Xxxxxx.
Xx. Xxxxx Xxxxxxxx 0000
Xxxxxxxxx
To Licensee: Cranston, Inc.
00 Xxxx Xxxxxx Xxxxx 000,
Xxxxx Xxxx. X.X. 00000
XXX
e. Counterparts. This Agreement may be executed in any number of
identical counterparts, each of which will be considered an original, but all of
which taken together will constitute one and the same instrument.
f. Entire Agreement. The terms and conditions herein contained
the entire Agreement between the parties with respect to the subject matter of
this Agreement and supersedes other previous agreements and understandings,
whether oral or written, between the parties hereto with respect to the subject
matter hereof, except as stated in this Agreement there are no other agreements,
understandings, representations or promises between the parties with respect to
the subject matter of this Agreement.
IN WITNESS WHEREOF the parties have set their bands.
Dated: November 21, 2006
LICENSOR:
Wellington Group Holdings Pty Ltd
By:
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Witness Its:
LICENSEE:
Cranston, INC.
By:
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Witness
EXHIBIT A
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"Formula":
Shave Less contains (by weight):
Distilled water (Confidential Treatment Requested)%
Glycerol (Confidential Treatment Requested)%
Propylene glycol (Confidential Treatment Requested)%
Sucrose (Confidential Treatment Requested)%
Herbal Extract (Confidential Treatment Requested)%
Avocado Oil (Confidential Treatment Requested)%
Lactic Acid (Confidential Treatment Requested)%
Grapefruit peel extract (Confidential Treatment Requested)%
Chamomile extract (Confidential Treatment Requested)%
Betaglucan (Confidential Treatment Requested)%
Propylparaben (preservative) (Confidential Treatment Requested)%
Methylparaben (preservative) (Confidential Treatment Requested)%
EDTA (Confidential Treatment Requested)%
One spray is approximately equal to 0.1 ml. The active ingredients are
glycerol, propylene glycol, sucrose, avocado oil, lactic acid, grapefruit peel,
chamomile, oat betaglucen, and EDTA. The inactive ingredients are proylparaben,
methylparaben, and water.
The formulation is the property of Wellington Group Holdings Pty Ltd. Propriety
blends are confidential.
"Clinical Information": shall mean all data, reports, writings, research, and
calculations performed by Healthcare Choreography, LLC d/b/a Xxxxxxx - Xxxx to
the Formula.
