EXHIBIT 10.1
THIS LICENCE AGREEMENT is dated and is effective this 7th day of November, 2001;
BY AND BETWEEN: 0000-0000 XXXXXX INC., a company incorporated under
the laws of the Province of Quebec, with its
principal place of business located at 000 Xxxxxxxx
Xxxx, Xxxxxxxxx Xxxxxx X0X 0X0.
(hereinafter referred to as "Licensor");
AND: NUVO WAY INC., a corporation incorporated under the
laws of Canada, with its principal place of business
located at 0000 Xxxxxxx Xxx., Xxxxxxxx, Xxxxxx, X0X
0X0
(hereinafter referred to as "Licensee");
RECITALS:
A. Licensor is the owner of all right, title and interest in and to the
Licensed Patent(s) and Licensed Technology described below.
B. Licensee has development, sales and marketing experience in the
nutraceutical field;
C. Licensee wishes to obtain from Licensor and Licensor is willing and has the
unrestricted right to grant Licensee, in accordance with the terms and
conditions set forth herein, the exclusive world-wide license to use the
Licensed Technology to manufacture and commercialise Licensed Products in
the Licensed Field (each as hereinafter defined).
NOW, THEREFORE, in consideration of the various premises and undertakings set
forth herein, the Parties agree as follows:
ARTICLE I
INTERPRETATION
1.1 Definitions. Unless otherwise specifically provided herein, the following
terms shall have the following meanings:
(a) "Affiliate" shall mean as to any person or Entity, any other person
or Entity which directly or indirectly controls, is controlled by, or
is under common control with such person or Entity. For purposes of the
preceding definition, "control" means the right to direct decisions of
such person or Entity, including without limitation, the power to
direct management decisions of such other Entity, whether by ownership
of voting securities, by agreement, or otherwise.
(b) "Agreement" shall mean this License Agreement and all instruments
supplemental hereto or in amendment or confirmation hereof; "herein",
"hereof", "hereto", "hereunder" and similar expressions mean and refer
to this Agreement and not to any particular Article, Section,
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Subsection or other subdivision; "Article", "Section", "Subsection" or
other subdivision of this Agreement means and refers to the specified
Article, Section, Subsection or other subdivision of this Agreement;
(c) "Entity" means a corporation, an association, a joint venture, a
partnership, a trust, a business, an individual, a government or
political subdivision thereof, including an agency, or any other
organisation which can exercise independent legal standing.
(d) "Governmental Body" shall mean (i) any domestic or foreign
national, federal, provincial, state, municipal or other government or
body, (ii) any international or multilateral body, (iii) any
subdivision, ministry, department, secretariat, bureau, agency,
commission, board, instrumentality or authority of any of the foregoing
governments or bodies (iv) any quasi-governmental or private body
exercising any regulatory, expropriation or taxing authority under or
for the account of any of the foregoing governments or bodies, or (v)
any domestic, foreign, international, multilateral, or multinational
judicial, quasi-judicial, arbitration or administrative court, grand
jury, tribunal, commission, board or panel;
(e) "Licensed Field" shall mean all fields of use.
(f) "Licensed Method" shall mean any process within the scope of any
Valid Claim of any patent within the Licensed Patent(s).
(g) "Licensed Patent(s)" shall mean (1) the patent application(s)
listed in Exhibit A, which is attached hereto and made a part hereof,
any continuations, divisions, patents of addition, reissues,
re-examinations, or extensions of any of the foregoing, provided that
Licensor is the owner thereof, and (2) patent(s) issuing on the patent
applications listed in Exhibit A, all applications for United States or
foreign patents based on the listed United States patents and listed
patent applications, any patents granted hereafter on said United
States or foreign applications, and any continuations, divisions,
patents of addition, applications for reissue, reissues,
re-examinations, or extensions of any of the foregoing, provided that
Licensor is the owner thereof.
(h) "Licensed Product" shall mean any product within the scope of any
Valid Claim of any patent within the Licensed Patent(s).
(i) "Licensed Technology" shall mean all of Licensor's technology and
intellectual property within the scope of the Licensed Patent claims
owned or controlled by Licensor as of the date of execution of the
present licence agreement. The intellectual property licensed in this
License Agreement is included in a provisional United States Patent
Application, entitled "DELIVERY SYSTEM FOR CREATINE" developed by
Xxxxxxx Xxxxxx and Xxxxxxxx Xxxxxx, as well as all related patents.
(j) "Party" shall mean Licensor or Licensee and, when used in the
plural, shall mean Licensor and Licensee;
(k) "Patent Costs" shall mean out-of-pocket expenses incurred prior to
the execution of this Agreement and during the term of this Agreement
in connection with the preparation, filing,
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prosecution and maintenance of the patents under the Licensed
Patent(s), including, among other items, the fees and expenses of
attorneys and patent agents, filing fees and maintenance fees, but
excluding costs involved in any patent infringement claims.
(l) "Sublicense" shall mean any grant by Licensee of any rights to a
sub-licensee under the terms of Section 2.2 of this Agreement.
(m) "Territory" shall mean all of the countries of the world, including
their respective territories and possessions.
(n) "Valid Claim" shall mean an issued claim of any unexpired patent
under the Licensed Patent(s) which has not be held unenforceable,
unpatentable or invalid by a decision of a court or government body of
competent jurisdiction, in a ruling that is unappealable or appealed
within the time allowed for appeal; which has not been rendered
unenforceable through disclaimer or otherwise; and which has not been
lost through an interference proceeding
1.2 Exhibits. The following are the Exhibits annexed to and incorporated in this
Agreement by reference and deemed to be a part hereof:
Exhibit "A" - Licensed Patent(s)
In the event of any conflict between the provisions of any Exhibit to this
Agreement and the main text of the Agreement, the main text shall prevail.
1.3 Recitals. The recitals are incorporated herein by reference and deemed to be
part hereof.
1.4 Interpretation. In this Agreement: (a) the singular shall include the plural
and the masculine shall include the feminine and neuter and vice versa, unless
the context otherwise requires; (b) the use of the word "including" shall mean
"including, but not limited to"; and (c) headings used for Articles; Sections;
etc. are for convenience only and shall not in any way affect the construction
of or be taken into consideration in the interpretation of, this Agreement.
ARTICLE II
LICENSE
2.1 Grant. Licensor grants to Licensee a license to manufacture, distribute,
offer to sell, sell, have manufactured, distributed, offered for sale and sold
Licensed Products under the Licensed Patents as follows:
The License shall include:
2.1.1 The exclusive (except as otherwise specified in Section 2.2 below)
right to use the Licensed Patent(s) and Licensed Technology to manufacture,
distribute, offer to sell, sell, have manufactured, distributed, offered
for sale and sold Licensed Products within the Licensed Field and within
the Territory where Licensor may lawfully grant such license rights under
the Licensed Patent(s); and
2.1.2 The right and authority to grant Sublicenses of the rights granted in
Section 2.1.1 above, subject to the provisions of this Agreement.
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2.1.3 Notwithstanding the exclusive license granted herein, Licensor
specifically reserves the right to use the Licensed Technology for its own
internal purposes, including continuing research, development and testing.
All rights to the Licensed Patent(s) or Licensed Technology which are not
expressly granted to Licensee hereunder, or reserved to third parties, are
hereby expressly reserved to Licensor. .No title in or to the Licensed
Patent(s) or Licensed Technology is transferred to Licensee pursuant to
this Agreement
2.2 Sublicenses. Licensee agrees that any sublicense it grants to any third
party shall be granted under the following conditions:
2.2.1 No sublicense agreement shall relieve Licensee of any of its
obligations under this License Agreement.
2.2.2 Each Sublicense agreement shall include a provision stating that the
Sublicense agreement shall automatically be modified or terminated, in
whole or in part, upon any modification or termination, in whole or in
part, of this License Agreement. Such modification or termination of the
Sublicense agreement shall be consistent with and reflect the modifications
or termination of this License Agreement.
2.2.3 All Sublicenses granted by Licensee shall expressly provide that all
of Licensee's obligations to Licensor in this License Agreement shall be
binding upon the sub-licensee, as if sub-licensee were a party to this
License Agreement. Each Sublicense shall specifically reference this
License Agreement and all rights retained by Licensor.
2.2.4 Licensor agrees to negotiate in good faith for a period of ninety
(90) days following the termination of this Agreement with each
sub-licensee under any Sublicense which is by its own terms in force and
good standing upon the termination of this Agreement for any reason, for a
license from Licensor of those rights subject to the Sublicense, on terms
substantially comparable to those set forth in the Sublicense and this
Agreement, provided that nothing herein shall be deemed to extend any
Sublicense beyond its original term unless specifically agreed to in
writing by Licensor.
2.3 Third Person Contracts. The Parties acknowledge and agree that Licensee
shall have the right, at Licensee's sole discretion and expense, to contract
with its Affiliates and/or third Persons for the performance of work, or the
provision of consulting services, in connection with the carrying out of its
obligations under this Agreement.
2.4 Delivery. Licensor shall deliver the Licensed Technology to Licensee within
two (2) days after the signing of this Agreement. Licensor shall provide
Licensee with all available know-how and other confidential information required
for any submission to be made to any Governmental Body which, without
limitation, shall include stability data, quality control data and manufacturing
procedures relating to the use of the Licensed Technology in Licensed Product.
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2.5 Improvements. During the term of this Agreement, Licensor shall provide
Licensee with any improvements, additions or modifications to the Licensed
Technology, as they become available. Licensor shall provide Licensee with a
statement of costs and charges incurred in the development of said improvements,
additions or modifications and Licensee shall reimburse Licensor, within thirty
(30) working days, for all such costs and charges.
2.6 New Technology. At any time during the term of this Agreement, should the
Licensor invent new technology, Licensor shall immediately notify Licensee in
writing. Licensee shall have a sixty (60) day time-limited option, from receipt
of notice, to negotiate in good faith license rights to the new technology. If
an agreement cannot reached within the sixty (60) day period, the negotiation
period may be extended by mutual agreement for an additional thirty (30) days.
If Licensor and Licensee fail to reach an agreement within the ninety (90) days,
Licensor shall be free to negotiate rights in the new technology with any third
party.
ARTICLE III
COMMERCIALISATION
3.1 Co-operation. Licensor shall co-operate with Licensee in its applications
for any required governmental approval(s) to market and/or sell Licensed
Product(s) in various jurisdictions throughout the Territory. Without limiting
the generality of the foregoing, Licensee shall be entitled to cross-reference
and incorporate data provided by Licensor to Governmental Bodies in
jurisdictions throughout the Territory, in applications filed by Licensee to
seek governmental approval(s) for Licensed Product(s) anywhere in the Territory,
to the extent that Licensor is not specifically prohibited in writing from
providing Licensee with access to such data. At the written request of Licensee,
Licensor shall notify the relevant Governmental Body in writing of Licensee's
right to reference such data.
3.2 Commercialisation.
3.2.1 Where Licensee requires governmental approval(s) to market and/or
sell Licensed Product(s) in a Territory, Licensee agrees to diligently seek
the required government approval(s) and to bring to market and achieve
sales of Licensed Product(s) of not less than two hundred thousand dollars
CDN ($200,000.00 CDN), in at least one such Territory, within twenty four
(24) months from the execution of this Agreement.
3.2.2 Where Licensee does not require governmental approval(s)to market
and/or sell Licensed Product(s)in a Territory, Licensee agrees to bring to
market and achieve sales of Licensed Product(s) of not less than two
hundred thousand dollars CDN ($200,000.00 CDN) in at least one such
Territory within eighteen (18) months of the execution of this Agreement.
3.3 Remedies. In the event that Licensee does not substantially meet one or more
of the performance criteria set forth in this Article III, Licensor, at its
discretion, shall have the right to: (A) terminate all license rights granted
Licensee under this License Agreement, whereupon Licensor may, in its sole
discretion, grant licenses to the Licensed Technology to licensees other than
Licensee upon any terms and without any obligation to compensate, in any way,
Licensee in connection therewith; (B) require Licensee to license qualified
sub-licensees, within a reasonable time; and (C) convert all exclusive license
rights granted under this License Agreement to nonexclusive license rights,
whereupon Licensor may, in its sole discretion, grant nonexclusive licenses to
the Licensed Technology to licensees other than Licensee upon any terms and
without any obligation to compensate, in any way, Licensee in connection
therewith.
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ARTICLE IV
PAYMENTS
4.1 For the license granted in Section 2.1 of this Agreement, Licensee shall:
4.1.1 Within thirty (30) days of the effective date of this Agreement, pay
Licensor a licensing fee in the amount of two thousand five hundred dollars
CDN ($2,500.00 CDN) (the "Licensing Fee");
4.1.2 Pay Licensor on the first anniversary of the effective date of this
Agreement, and each subsequent anniversary until a patent issues under the
Licensed Patent(s), an annual fee of two thousand five hundred dollars CDN
($2,500 CDN) (the "Annual Fee");
4.1.3 Pay Licensor on each anniversary of the effective date of this
Agreement after a valid patent issue under the Licensed Patent(s), a
maintenance fee of ten thousand dollars U.S. ($10,000.00 US) (the
"Maintenance Fee") until the last valid patent expires;
4.1.4 Pay Licensor sub-licensing flowthrough equal to five percent (5%) of
any cash consideration, whether denominated as fees, royalties or
milestones ( "flowthrough cash"), except reimbursement for research costs,
in consideration of any Sublicenses of the Licensed Patent(s) and Licensed
Technology.
ARTICLE V
CONFIDENTIALITY
5.1 Confidentiality. Licensor and Licensee shall maintain confidential exchanged
proprietary information as follows:
5.1.1 Subject to Section 5.1.2. below, Licensee agrees to treat (and agrees
to cause its Affiliates and sub-licensees to treat) as confidential all
proprietary information with respect to the Licensed Technology, Licensed
Product(s) or the Licensed Patent(s) made available by Licensor to
Licensee. Subject to Section 5.1.2. below, Licensor agrees to treat as
confidential all proprietary information with respect to the Licensed
Technology, Licensed Product(s) or the Licensed Patent(s) made available by
Licensee to Licensor. Licensor acknowledges that Licensee may find it
beneficial to disclose information provided by Licensor during the conduct
of Licensee's business. Under such circumstances, Licensee may make such
information available to third parties, provided that Licensee shall make
known to the recipient the confidential nature of the information and the
recipient's obligation of confidentiality thereto.
5.1.2 Neither Licensee nor Licensor shall be bound by the provisions of
Section 5.1.1 with respect to information which:
5.1.2.1 was previously known to the recipient at the time of disclosure;
5.1.2.2 is in the public domain at the time of disclosure;
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5.1.2.3 becomes a part of the public domain after the time of
disclosure, other than through disclosure by the recipient or some
other third party who is under an agreement of confidentiality with
respect to the subject information;
5.1.2.4 is independently developed without utilisation of the
proprietary information, as established by competent written proof; or
5.1.2.5 is required to be disclosed by law or court order.
5.1.3 Licensee and Licensor shall each take such actions as the other party
may reasonably request from time to time to safeguard the confidentiality
of any information with respect to which such party has an obligation to
keep confidential pursuant to the terms of this Section 5.1
5.1.4 The obligations of Licensee and Licensor under Sections 5.1.1, 5.1.2,
and 5.1.3 shall survive the expiration or earlier termination of all or any
part of this Agreement by three (3) years.
Each Party may disclose the other Party's Information to the extent such
disclosure is reasonably necessary for prosecuting or defending litigation, or
complying with applicable laws.
5.2 Information Storage. Without limiting the generality of Section 5.1, each
Party shall retain all the other Party's confidential, proprietary, information
in a secure place, separate from any other information, data, reports, or other
documents not relating hereto, with access to such information limited to those
persons who have a "need to know".
5.3 Return of Information. Upon termination of this Agreement, the receiving
Party shall promptly return all of the disclosing Party's information, including
all reproductions and copies thereof and shall immediately delete all references
thereto stored electronically, provided that the receiving Party shall be
entitled to retain one copy of the information for its legal counsel for the
purposes of determining its rights and obligations under this Article V.
ARTICLE VI
WARRANTIES, REPRESENTATIONS AND DISCLAIMERS
6.1 Warranties and Representations. Licensor hereby warrants that:
6.1.1 Licensor is the owner of all rights, title and interest in and to the
Licensed Patent(s) and Licensed Technology;
6.1.2 Licensor has not previously granted any rights in or to the Licensed
Technology or Licensed Patent(s) to any other third party;
6.1.3 During the term of this Agreement Licensor will not grant any
licenses or other rights with respect to the Licensed Technology or
Licensed Patent(s) except in accordance with this Agreement;
6.1.4 To the knowledge of Licensor there is no action, suit, investigation
or proceeding pending or, to the knowledge of Licensor threatened against
or affecting the Licensed Patent(s);
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6.1.5 Licensor has the full right and authority to enter into this
Agreement and perform its obligations hereunder.
6.2 Disclaimer of Warranties. LICENSOR HEREBY EXPRESSLY DISCLAIMS ANY AND ALL
WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, RELATING TO
PERFORMANCE, OR MARKETABILITY IN ANY RESPECT RELATED TO THE LICENSED TECHNOLOGY
OR LICENSED PATENT(S). LICENSOR FURTHER HEREBY EXPRESSLY DISCLAIMS ANY EXPRESS
OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ACCORDINGLY, LICENSEE ASSUMES THE ENTIRE RISK AND RESPONSIBILITY FOR THE SAFETY,
EFFICACY, PERFORMANCE, MARKETABILITY, AND QUALITY OF ALL LICENSED PRODUCTS.
ARTICLE VII
INDEMNIFICATION
7.1 Licensee shall indemnify and hold harmless the Licensor from and against any
and all claims, demands, actions suits or other proceedings, damages, loss,
costs and expenses by whomsoever made or brought against the Licensor by reason
of or arising out of any breach by Licensee of this License Agreement, or from
improper use by Licensee of the Licensed Technology.
7.2 Licensee shall not hold the Licensor liable for any claims resulting from
the action, including the development, production, distribution and use of the
Licensed Technology in any of Licensee's products or negligence,
misrepresentation or action by Licensee on the use of the Licensed Technology.
7.3 Licensee shall not hold the Licensor liable for any claims resulting from
the action, including any deviation of the characteristics of the Licensed
Technology or negligence of Licensee.
ARTICLE VIII
TERM; TERMINATION
8.1 Term of Agreement. This Agreement shall commence as of the date first above
written and shall continue in effect until terminated in accordance with this
Article VIII.
8.2 Licensor Right to Terminate.
8.2.1 Failure by Licensee to comply with any of the material obligations
contained herein shall entitle the Licensor to give to Licensee notice
specifying the nature of the default and requiring it to make good such
default. If such default is not cured within ninety (90) days after the
receipt of such notice, or diligent steps are not taken to cure such
default if by its nature such default could not be cured in ninety (90)
days, the Licensor shall be entitled, without prejudice to any of its other
rights conferred on it by this Agreement, and in addition to any other
remedies available to it by Law, to terminate this Agreement in writing,
effective immediately.
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8.2.2 The right of a Party to terminate this Agreement shall not be
affected in any way by its waiver or failure to take action with respect to
any prior default.
8.3 Licensee's Right to Terminate. Licensee may terminate this Agreement at any
time by written notice to Licensor, given in accordance with Section 10.11
below, at least ninety (90) days prior to the termination date specified in the
notice.
8.4 Termination on Business Failure. To the extent permitted by law, either
Party shall have the option to terminate this Agreement immediately upon notice
to the other Party in the event the other Party becomes insolvent, or is subject
to proceedings for its adjudication as a bankrupt, or if a receiver, trustee, or
custodian is appointed for the other Party, or if the other Party makes an
assignment for the benefit of creditors, or is liquidated or dissolved, or if
the other Party takes or suffers any similar or analogous action in any
jurisdiction (other than actions taken voluntarily for the purposes of solvent
amalgamation or restructuring).
8.5 Effect of Termination.
In the event that this Agreement is terminated for any reason other than
termination by Licensee pursuant to Sections 8.3 or 8.4, on the effective date
of termination Licensee shall immediately cease and shall cause each of its
Affiliates and sublicensees to immediately cease using, making, having made and
selling the Licensed Patent(s), Licensed Technology and Licensed Products.
Licensee shall, at Licensor's sole option, upon written request of Licensor, (i)
provide Licensor with a copy of all written data and information, including
regulatory filings then in Licensee's possession relating to the development of
Licensed Product(s) up to that time; and (ii) to the extent permitted by law,
transfer any governmental approvals for Licensed Product(s), including Licensed
Product(s) DIN, to Licensor.
8.5 Accrued Rights, Surviving Obligations.
8.5.1 Termination or expiration of this Agreement for any reason shall be
without prejudice to any rights that shall have accrued to the benefit of a
Party prior to such termination or expiration. Further, any such
termination, relinquishment or expiration, shall not relieve a Party from
obligations which are expressly indicated to survive termination or
expiration of this Agreement.
8.5.2 Without limiting the foregoing, the provisions of Sections 8.4, 10.10
and this Section 8.5, and of Articles V, VI, VII and VIII of this Agreement
shall survive the expiration or termination of this Agreement.
ARTICLE IX
PROSECUTION AND MAINTENANCE OF LICENSED PATENTS
9.1 Prosecution and Maintenance. During the term of this Agreement, Licensee
shall be responsible for prosecuting and maintaining the patents under the
Licensed Patent(s). As consideration for and as an integral part of the rights
granted to Licensee under this Agreement, Licensee shall pay all Patent Costs
previously incurred by Licensor or hereafter incurred by Licensee with respect
to the Licensed Patent(s) in each jurisdiction in the Territory. Licensee shall
provide Licensor with copies of
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all official actions and other communications received by Licensee or its patent
counsel from governmental agencies with respect to patents under the Licensed
Patents and copies of all filings with governmental agencies from Licensee or
its patent counsel with respect to the Licensed Patents.
9.2 Cooperation. Licensor agrees to co-operate with Licensee in the preparation,
filing, prosecution and maintenance of patents under the Licensed Patent(s), by
disclosing such information as may be necessary and by promptly executing such
documents as Licensee may request to effect such efforts. Licensor shall bear
their own costs in connection with co-operation with Licensee under this Section
9.2. All patents under the Licensed Patent(s) shall be filed, prosecuted and
maintained in Licensor's name or as required by law.
ARTICLE X
MISCELLANEOUS PROVISIONS
10.1 Relationship of the Parties. Licensor and Licensee are independent
contractors. Neither is the agent or legal representative, joint venturer,
partner, employee or employer of the other and the Parties agree to conduct
their respective affairs accordingly. Without limiting the generality of the
foregoing, Licensor agrees not to represent itself as the agent or legal
representative of Licensee and Licensee agrees not to represent itself as the
agent or legal representative of Licensor. This Agreement does not grant any
Party any authority to assume or create any obligation on behalf of or in the
name of the other Party.
10.2 Assignment. Except as expressly provided herein, neither this Agreement nor
any interest hereunder shall be assignable, nor any other obligation delegable,
by a Party without the prior written consent of the other, which consent shall
not be unreasonably withheld or delayed; provided, however, that a Party may
assign this Agreement to any Affiliate of it or to any successor by law or by
sale of all or substantially all of its assets, provided that the assigning
Party shall guarantee and remain liable and responsible for the performance and
further observance of all the assigning Party's duties and obligations
hereunder. The terms and provisions of this Agreement shall be binding upon the
successors and permitted assigns of the Parties. Any assignment not in
accordance with this Section 9.2 shall be void. Nothing in this Section 9.2
shall be construed to restrict (i) Licensee's right to sublicense referred to in
Section 2.1 hereof; or (ii) Licensee's right to contract with third Persons
under Section 2.2 hereof.
10.3 Further Actions. Each Party agrees to execute, acknowledge and deliver such
further instruments and to do all such other acts as may be reasonably necessary
or reasonably appropriate in order to carry out the purposes and intent of this
Agreement.
10.4 Public Announcements. Except as otherwise required by law, neither Party
shall issue a press release or make any other public disclosure with regard to
the existence of this Agreement or the terms hereof without the prior approval
of the other Party of such press release or public disclosure. Each Party shall
submit any anticipated press release or public disclosure to the other Party,
and the receiving Party shall expeditiously review and approve any such press
release or public disclosure, which approval shall not be unreasonably withheld
or delayed. If the receiving Party does not respond within two (2) business
days, the press release or public disclosure shall be deemed approved. In
addition, if a public disclosure is required by law, including without
limitation in a filing with any securities and exchange commission, the
disclosing Party shall secure confidential
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treatment of any confidential information of the other Party contained in such
release (whether through protective orders or otherwise), prior to its
disclosure. Either Party may disclose the terms of this Agreement to its actual
or prospective investors or corporate partners or to such Party's accountants,
attorneys and other professional advisors provided that nothing in this Section
10.4 shall permit either Party to release Confidential Information or to
jeopardize the trade secrets of the other Party.
10.5 Entire Agreement of the Parties. The terms and conditions of this Agreement
(including the Exhibits hereto) constitute and contain the entire understanding
and agreement of the Parties and cancels and supersedes any and all prior
negotiations, correspondence, understandings and agreements between the Parties,
whether oral or written, respecting the subject matter hereof.
10.6 Amendments. The terms and conditions of this Agreement may not be amended,
changed, modified, contradicted, explained or supplemented (including by course
of dealing between the Parties, usage of trade or otherwise) except by a written
instrument signed by a duly authorized officer of each Party.
10.7 Waiver. Any delay or failure in enforcing a Party's rights under this
Agreement or any waiver as to a particular default or other matter shall not
constitute a waiver of such Party's rights to the future enforcement of its
rights under this Agreement, nor operate to bar the exercise or enforcement
thereof at any time or times thereafter, excepting only as to an express written
and signed waiver as to a particular matter for a particular period of time.
10.8 Force Majeure. Except for the obligation to pay sums when due, neither
Party shall be liable hereunder for delays in performance caused by Force
Majeure. For the purposes of this Agreement, "Force Majeure" shall mean any
outside event, unforeseeable, irresistible and independent of a Party control,
which slows, interrupts or stops the performance in whole or in part by such
Party of all or part of its obligations pursuant to this Agreement; including
war, riots, rebellion, epidemic, lightning, earthquake, storm, sleet, flood,
fire and explosion. The Party claiming to be affected by Force Majeure shall
notify the other Party without delay indicating in the notice, as precisely as
possible, the effect the Force Majeure will have on its capacity to perform its
obligations pursuant to this Agreement. If a Party is affected by Force Majeure,
its obligations under this Agreement are suspended to the extent that such Party
is incapable of acting, only and insofar as the Party acts with diligence in
order to eliminate or to correct the effects of the Force Majeure.
10.9 Applicable Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the Province of Quebec and the laws of Canada
applicable therein.
10.10 Dispute Resolution. The Parties shall mutually consult in good faith in an
attempt to settle amicably in the spirit of co-operation any and all disputes
arising out of or in connection with this Agreement or questions regarding the
interpretation of the provisions hereof. Each dispute arising out of or in
connection with this Agreement or question regarding the interpretation hereof
which cannot be settled amicably within two (2) months from the date of
notification of either Party to the other of such dispute or question, which
notice shall specify the details of such dispute or question, shall be finally
settled by binding arbitration, in English, by one arbitrator chosen by the
parties pursuant to Article 940 of the Code of Civil Procedure of Quebec. If the
Parties cannot agree on the arbitrator to be so appointed, each Party shall be
entitled to appoint one (1) arbitrator, and the two (2) arbitrators so appointed
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shall agree upon a third. The arbitration shall be conducted in accordance with
the rules of conciliation and arbitration of the Civil Code of Quebec and the
Code of Civil Procedure of Quebec. The arbitrator(s) shall have the technical
expertise required to understand and arbitrate the dispute. The arbitration
carried out hereunder shall apply to the exclusion of regular legal means,
provided that the rights of the Parties in urgent situations in which time is of
the essence to obtain proper remedies in courts of law shall remain unimpaired.
There shall be no appeal from the decision or findings of the arbitrator(s),
which shall be final and binding upon the Parties and may be entered in any
court having proper jurisdiction.
10.11 Notices and Deliveries. Any notice, request, delivery, approval or consent
required or permitted to be given under this Agreement shall be in writing and
shall be deemed to have been sufficiently given if delivered personally,
transmitted by telecopier (confirmation of receipt by confirmed facsimile
transmission being deemed receipt of communication sent by telecopy) or five
days after it was sent, by registered letter (or its equivalent) to the Party to
which it is directed at its address shown below or such other address as such
Party shall have last given by notice delivered in accordance herewith to the
other Party:
(a) If to Licensor, addressed to:
0000-0000 XXXXXX INC.
000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx
X0X 0X0
Attention: President
Telecopier: (514)
-----------------
(b) If to Licensee, addressed to:
NUVO WAY INC.
0000 Xxxxxxx Xxx.
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: President
Telecopier: (000) 000-0000
10.12 Execution in Counterparts. This Agreement may be executed in counterparts,
each of which, when so executed and delivered, shall be deemed to be an
original, and all of which counterparts, taken together, shall constitute one
and the same instrument.
10.13 Language. The parties have expressly requested that this Agreement and any
agreement, proceedings, documents or notices related thereto or referred to
therein be drafted and executed in the English language. Les parties aux
presentes ont expressement exige que ce contrat ainsi que tous contrats,
procedures, documents ou avis s'y rapportant ou qui y sont mentionnes soient
rediges et signes en langue anglaise.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by
their respective duly authorized officers as of the day and year first above
written.
9103-3019 QUEBEC INC. NUVO WAY INC.
/s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxx
------------------------ -------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxx Xxxxx
Title: President Title: CFO
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