EXHIBIT 10.82
LICENSE AGREEMENT
THIS AGREEMENT is made and entered into effective as of the 2nd day of
January, 1996 by and between THERMAL LINE WINDOWS, L.L.P., a Minnesota
limited liability partnership ("TLW"), and COMPLAST, INC., a Minnesota
corporation ("Complast").
WITNESSETH
WHEREAS, TLW is a Minnesota limited liability partnership, the general
partners of which are Blizzard Enterprises, Inc., a Minnesota corporation
("Blizzard"), and ICE, INC., a North Dakota corporation;
WHEREAS, Complast is affiliated and under common control with Blizzard;
WHEREAS, TLW has been organized to engage in, among other things, the
manufacture and distribution of Licensed Products (as that term is hereafter
defined); and
WHEREAS, in connection with and as a condition to the organization of TLW,
Complast has agreed to grant TLW a license to manufacture Licensed Products.
NOW THEREFORE pursuant to the foregoing recitals, which are an integral part
hereof, and in consideration of the mutual covenants and agreements
contained herein, the sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows,
1. TERM. This Agreement shall be effective as of January 2, 1996 and
shall continue in full force and effect for a period of five (5)
years. At the end of such five (5) year period, this Agreement shall
automatically renew for successive periods of one (1) year each,
unless either party hereto provides the other ninety (90) days advance
written notice of non-renewal.
2. LICENSE. Subject to the terms and upon the conditions contained
herein, Complast hereby grants to TLW a fully paid, royalty free,
license (the "License") to: (a) manufacture and distribute those
windows and window systems described in EXHIBIT A attached hereto and
hereby made a part hereof (the "Licensed Products"); and (b) use the
trade names "Vinyl Therm", "Complast" and "Compozit", and any trade
names, trade marks or trade styles relating thereto, in connection
with the manufacture or distribution of Licensed Products.
3. TERRITORY. The License and TLW's rights and privileges thereunder
shall exist only with regard to manufacturing and distribution
activities engaged in by TLW within the geographic area described in
EXHIBIT B attached hereto and hereby made a part hereof (the
"Territory"). TLW shall not engage in any use any of the rights and
privileges embodied in the License in any geographic area outside of
the Territory.
4. PARTIAL EXCLUSIVITY. Except as otherwise provided in EXHIBIT A, TLW's
rights and privileges under the License shall be exclusive within the
Territory with regard to those Licensed Products designated as
"Exclusive" in EXHIBIT A. With regard to those Licensed Products
designated as "Non-Exclusive" in EXHIBIT A, TLW's rights and
privileges under the License shall be non-exclusive, and, as to such
Licensed Products, Complast shall have the right, in its discretion,
to license all or any of the rights and privileges embodied in the
License to any person for use in the Territory.
5. QUALITY STANDARDS. All Licensed Products manufactured by TLW shall be
of a standard of quality which meets or exceeds the generally accepted
standard of quality in the plastic framed window industry. TLW shall
use its good faith best efforts to manufacture and distribute all
Licensed Products in such a manner as will preserve and enhance the
good will associated with Complast's trade names, trade marks, logos
and trade styles and shall not engage in any activity relating to such
manufacture or distribution which TLW knows, or in the exercise of
reasonable business judgment, should know, will have an adverse effect
upon such goodwill.
6. EVENTS OF DEFAULT.
a. DEFINED. As used herein, the term "Event of Default" means:
(i) a breach by TLW of any covenant or agreement set
forth herein, or the failure of TLW to perform any
obligation required of it hereunder, unless such
breach or failure is cured by TLW within fifteen (15)
days following the receipt of written notice thereof
from Complast;
(ii) a breach by TLW of any covenant or agreement
contained in any other agreement between TLW and
Complast, or the failure of TLW to perform any
obligation required of it under any such Agreement,
unless such breach or failure is cured by TLW within
fifteen (15) days following the receipt of written
notice thereof from Complast; and/or
(iii) TLW shall fail to pay any amount owing from TLW to
Complast within ten (10) days following the receipt
of written notice from Complast that such amount is
due.
b. TERMINATION OR REVOCATION OF EXCLUSIVITY. Upon the occurrence
of any Event of Default, Complast may in its sole and absolute
discretion, upon written notice to TLW, either (i) terminate
this Agreement and revoke the License in its entirety, or (ii)
declare the License to be non-exclusive as to TLW (i.e. as to
all Licensed Products), whereupon and whereafter Complast shall
have the right to license all or any of the rights and
privileges embodied in the License to persons other than TLW
for use in the Territory. Nothing contained herein, and no
exercise of any
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of the rights contained herein, shall be or constitute an
election of remedies by Complast, or in any manner limit any
right or remedy which may be available to Complast, in respect
of any Event of Default.
7. TERMINATION BY TLW. Notwithstanding anything contained in this
Agreement to the contrary, TLW shall have the right to terminate this
Agreement and its rights and interests in, to and under the License at
any time by written notice delivered to Complast.
8. NO CONSEQUENTIAL DAMAGES. In no event and under no circumstances shall
Complast or TLW be liable to the other or any other person for any
special, direct, indirect, incidental or consequential damages, of any
type or nature whatsoever, arising from any actual or alleged breach
of or failure to perform under this Agreement.
9. ASSIGNABILITY. TLW shall not, either voluntarily or by operation of
law, assign or otherwise transfer any right or interest in, to or
under either this Agreement or the License without first obtaining the
written consent of Complast to such assignment or transfer; and any
such assignment or transfer which is made without the prior written
consent of Complast shall be void and of no effect and shall vest no
right, title or interest in the transferee.
10. OWNERSHIP OF RIGHTS. TLW hereby acknowledges that Complast is the
sole owner of all trade marks, trade names, trade styles, logos,
processes, technologies and other proprietary rights embodied in the
License and, with the exception of the rights and privileges embodied
in the License, all of which are subject to the limitations contained
in this Agreement and will lapse and expire in their entirety upon any
expiration or termination of this Agreement, TLW has no right or
interest in, or claim to use of any of such trade names, trade marks,
trade styles, logos, processes, technologies and other proprietary
rights.
11. IMPROVEMENTS. In the event that TLW shall identify, discover, invent
or develop any improvement in or to any process or technology embodied
in the License, such improvement shall immediately vest in and become
the property of Complast absolutely and completely; provided, however,
that such improvement shall be deemed to be included under and within
the License and TLW shall be entitled to utilize such improvements
under the License in accordance with the terms of this Agreement. TLW
shall, from time to time, execute and deliver to Complast such
documents or instruments as Complast may request to evidence
Complast's ownership of any such improvement.
12. RESERVATIONS. Complast hereby expressly reserves to itself all rights
and privileges not expressly conferred upon TLW under this Agreement.
Without limiting the generality of the foregoing, Complast shall have
the right to grant, license or otherwise extend any of the rights and
privileges embodied in the License to any person for use (a) outside
of
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the Territory, or (b) in connection with the manufacture or
distribution of products other Licensed Products.
13. MISCELLANEOUS.
a. LEGAL RELATIONSHIP. Nothing contained in this Agreement shall
be deemed to create an employment, agency, franchise or other
relationship between TLW and Complast for any purpose
whatsoever, and no relationship is intended or created hereby
other than that of independent contractors.
b. BENEFIT. This Agreement shall inure to the benefit of and
shall be binding upon each of the parties hereto and their
respective successors and assigns.
c. SURVIVING RIGHTS. Notwithstanding the termination or
expiration of this Agreement, each of the parties hereto shall
be required to carry out any provision hereof which
contemplates performance subsequent to such termination or
expiration, and such termination or expiration shall not affect
any liability or other obligation that shall have accrued prior
thereto.
d. PERSON. As used in this Agreement, the term "person" means and
includes both individuals and entities.
e. WAIVER, MODIFICATION OR AMENDMENT. No waiver, modification or
amendment of any term, condition or provision of this Agreement
shall be valid, binding or of any effect unless made in
writing, signed by the parties hereto or their duly authorized
representatives and specifying with particularity the nature
and extent of such waiver, modification or amendment. Any
waiver by any party of any provision hereof shall not affect or
impair any other provision hereof.
f. NOTICES. All notices, requests or other communications from
either party hereto to the other shall be in writing and shall
be considered to be delivered or served if sent by first class
certified or registered mail, return receipt requested, postage
prepaid to the proper party at its address as set forth below,
or to such other address as such party may hereafter designate
by written notice to the other.
If to TLW, to:
Thermal Line Windows, L.L.P.
0000 Xxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxxx
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If to Complast, to:
Complast, Inc.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxx
g. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all
of which shall constitute one and the same instrument.
h. HEADINGS. Section headings used herein are for convenience
purposes only and shall in no way be construed to be a part of
this Agreement or as a limitation of the scope of the
particular sections to which they refer.
i. INTERPRETATION AND SEVERANCE. The provisions of this Agreement
shall be applied and interpreted in a manner consistent with
each other so as to carry out the purposes and intent of the
parties hereto, but if for any reason any provision hereof is
determined to be unenforceable or invalid, such provision (or
such part hereof as may be unenforceable or invalid) shall be
deemed severed from this Agreement, and the remaining
provisions shall be carried out with the same force and effect
as if such provision (or part thereof) had not been a part of
this Agreement.
j. GOVERNING LAW; ENFORCEMENT. This Agreement shall be governed
by and construed in accordance with the laws of the State of
Minnesota (with the exception of the provisions thereof which
concern conflicts of laws). Any action or proceeding relating
to the enforcement or interpretation of this Agreement shall be
brought in state or federal courts located in Hennepin County,
Minnesota. Each of TLW and Complast hereby consents and
submits to the jurisdiction of said courts.
k. ENTIRE AGREEMENT. This Agreement contains the entire Agreement
between TLW and Complast and supersedes any and all other
understandings or agreements, whether oral or in writing,
between TLW and Complast with respect to the matters referred
to herein.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of
the date and year first above written.
THERMAL LINE WINDOWS, L.L.P.,
a Minnesota limited liability partnership
By: ICE, INC.,
a North Dakota corporation
Its General Partner
By /s/ Xxxxx Xxxxxxxx
______________________________
Xxxxx Xxxxxxxx
Its President
By: Blizzard Enterprises, Inc.
a Minnesota corporation
Its General Partner
By /s/ Xxxxxx X. Xxxx
______________________________
Xxxxxx X. Xxxx
Its President
COMPLAST, INC.
a Minnesota corporation
By: /s/ Xxxxxx X. Xxxx
___________________________________
Xxxxxx X. Xxxx
Its President
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EXHIBIT A
EXCLUSIVE LICENSED PRODUCTS
1. "Vinyl Therm" side-load series (double hung, slider)
2. "Vinyl Therm" PVC tilt series (double hung, slider)
3. Compozit-TM- Casement*
4. Series 2000 Compozit-TM- Single Hung*
*These Licensed Products may be manufactured by fabricators other than
TLW in connection with the manufacture of a major Compozit window/door
series.
NON-EXCLUSIVE PRODUCTS
1. Advantage Patio Door
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January 2, 1997
COMPLAST & THERMAL LINE WINDOW
TERRITORY AGREEMENT
EXCLUSIVE NON-EXCLUSIVE
--------- -------------
WASHINGTON 620-690-630-660 CASEMENT, PATIO DOOR
OREGON 620-690-630-660 CASEMENT, PATIO DOOR
MONTANA 620-690-630-660 NONE
310-340-370-920
Casement, Patio Door
2000Series
IDAHO (SO. 1/2) 620-690-630-660 CASEMENT, PATIO DOOR
2000 Series
WYOMING 620-690-630-660 NONE
310-340-370-920
Casement, Patio Door
2000Series
NORTH DAKOTA 620-690-630-660 NONE
310-340-370-920
Casement, Patio Door
2000Series
SOUTH DAKOTA 620-690-630-660 NONE
310-340-370-920
Casement, Patio Door
2000Series
MINNESOTA 620-690-630-660 NONE
310-340-370-920
Casement, Patio Door
2000Series
IOWA (ABOVE LINE) 620-690-630-660 CASEMENT, PATIO DOOR
2000Series
WISCONSIN (W OF LINE) 620-690-630-660 CASEMENT, PATIO DOOR
2000 Series
NEBRASKA 620-690-630-660 CASEMENT, PATIO DOOR
2000 Series Series 2000 Pacesetter
COLORADO 620-690-630-660 CASEMENT, PATIO DOOR
2000 Series
