EXHIBIT 6b
Technology License Agreement
This technology license agreement ("Agreement") is entered into
this 17th day of May, 2001 and is by and between the following
Parties:
Licensor: NRG Tech, Inc. ("Licensor")
A Nevada corporation
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TEL: (▇▇▇) ▇▇▇-▇▇▇▇
FAX: (▇▇▇) ▇▇▇-▇▇▇▇
Licensee: Chapeau, Inc. ("Licensee")
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Recitals
A. LICENSOR holds a license interest in certain rights
including Technology Rights (as defined below) including the right to
grant a sublicense thereof.
B. LICENSEE wishes manufacture and sell certain products in the
Licensed Field of Use
(as defined below) using the Technology Rights.
C. LICENSOR and LICENSEE have separately entered into a
Technology Development Agreement the complete performance of which is
a condition precedent to the effectiveness of this Agreement.
D. LICENSOR is willing to permit LICENSEE to manufacture and
sell products based on the Technology Rights within the Licensed Field
of Use only on the terms and conditions set forth
herein and only after complete performance of the terms of the
aforementioned Technology
Development Agreement.
Terms
NOW, THEREFORE, the Parties agree as follows:
SECTION 1 - DEFINITIONS
1.1 Technology Rights. The following terms shall each have
their respective defined meanings:
(a) United States Patent Rights. "United States Patent
Rights" shall mean United States Patent Application Serial No.
09/541,541 filed on April 3, 2000, and any and all U.S. patents
issuing therefrom.
(b) Foreign Patent Rights. "Foreign Patent Rights" shall
mean the claims of any foreign patent application or foreign
patent required to exercise the United States Patent Rights.
(c) Patent Rights. "Patent Rights" shall mean United
States Patent Rights and Foreign Patent Rights collectively.
(d) Trade Secrets. "Trade Secrets" shall mean all trade
secrets, know-how, technology, inventions and information
developed during and in connection with the performance of a
certain Technology Development Agreement between the Parties as
it relates
to commercial implementation of certain products under the
Patent Rights.
(e) Technology Rights. "Technology Rights" shall mean
Patent Rights and Trade Secrets collectively.
(f) Improvements. "Improvements" shall mean all
improvements, modifications, changes or enhancements made or
developed in relation to (i) any of the Technology Rights or
(ii) any product, apparatus, device or component, including a
Licensed Product, which utilizes any portion of the Technology
Rights.
1.2 Field of Use. "Field of Use" shall mean sub-600kW
stationary electrical generation apparatuses powered by a spark-
ignited internal-combustion engine, where the mechanisms and
apparatuses for steam reformation, exhaust gas recirculation, and fuel
control technology have been designed and engineered by LICENSOR, and
where such mechanisms and apparatuses are
manufactured and operated in strict compliance with LICENSOR'S
specifications.
1.3 Licensed Product. "Licensed Product" shall mean any product
or process embodying the Technology Rights or a portion thereof,
implemented using the Technology Rights or a portion thereof,
or falling within the scope of any claim of any patent or patent
application of the Patent Rights, all
within the Field of Use. Licensed Product shall include both a
complete natural gas powered engine according to the Technology Rights
and an apparatus for installation on a natural gas powered engine
according to the Technology Rights, all within the Field of Use.
1.4 Customer. "Customer" shall be any third party that (i)
acquires possession of a Licensed Product from LICENSEE (whether by
purchase, rental, lease or otherwise), or (ii) practices a method of
the Technology Rights using a Licensed Product.
1.5 Information. During the performance of the terms of this
Agreement, LICENSEE will learn highly sensitive, proprietary
information in the possession of LICENSOR. The information may
include inventions, trade secrets, information concerning or relating
to the Technology Rights,
designs, patent applications, formulas, processes, recipes, equipment,
prototypes, models, materials, mock-ups, samples, materials,
manufacturing methods, business plans, marketing information,
customer lists, supplier lists, forecasts and the like (collectively
"Information").
1.6 Confidential Information and Confidential Materials.
"Confidential Information"
means any and all Information that LICENSEE learns directly or
indirectly from LICENSOR. "Confidential Materials" means any tangible
medium (paper, film, magnetic media, actual models,
mock-ups, materials, samples, prototypes, etc.) containing or
fabricated using Confidential
Information. Confidential information shall not include any
Information which was (i) in the public
domain prior to the execution of this Agreement, (ii) is independently
developed by LICENSEE, or
(iii) is disclosed to LICENSEE by any third party, provided such
disclosure is not made in violation of any agreement involving
LICENSOR. To the extent that any Confidential Information enters the
public domain after the execution of this Agreement through no fault
of LICENSEE, the information
that enters the public domain shall prospectively cease to be
Confidential Information. LICENSEE
shall have the burden of proof with regard to any Information that is
alleged to fall within any of the foregoing Confidential Information
exclusions.
SECTION 2 - THE LICENSE
2.1 Technology License. Subject to and on the terms and
conditions contained herein, LICENSOR hereby grants to LICENSEE, and
LICENSEE hereby accepts, a paid-up non-exclusive license of the
Technology Rights to make, use, and sell three hundred (300) units of
Licensed Product within the Field of Use. This license is referred to
in this Agreement as the "Technology License."
2.2 Reservations. Rights not expressly granted to LICENSEE
under this Agreement are reserved by LICENSOR. No part of this
Agreement shall be interpreted to prevent LICENSOR from engaging in
any activities that do not directly conflict with any obligation of
LICENSOR under this Agreement.
2.3 License for Additional Units. LICENSEE may, at its sole and
exclusive option, purchase a "License for Additional Units" from
LICENSOR authorizing LICENSEE to make and sell an
additional three hundred (300) units of Licensed Product within the
Field of Use by paying LICENSOR the sum of $5,000 per Licensed
Product.
SECTION 3 - CUSTOMERS OF LICENSED PRODUCT
3.1 End User License. Prior to transferring physical possession
or legal title to any Licensed Product to a Customer, LICENSEE shall
advise customer in writing that the Licensed Product is subject to
this License, which will become effective for Customer on a first use.
Licensee will include such description of end user compliance
requirements as Licensee reasonably provides.
3.2 Compliance and Enforcement. LICENSEE shall police its
customers to ensure
continued compliance with the End User License Agreement, and shall
take whatever steps necessary in order to ensure such compliance,
including litigating as appropriate.
3.3 Restriction on Production, Sale and Distribution. LICENSEE
shall not directly or indirectly produce, sell or distribute, or allow
the production, sale or distribution of, any Licensed
Product which is not expressly controlled by or subject to the
restrictions and conditions of this Agreement and the Technology
License granted hereunder. In the event LICENSEE desires or intends
to engage any third party in connection with outsourcing any
activities or services related to the
design, engineering, manufacturing, production or development of any
product which utilizes the Technology, Rights or Improvements, or any
apparatus or component related thereto (the
"Engagement"), LICENSEE shall provide LICENSOR with advance written
notice of such intended Engagement specifying the particulars of the
proposed Engagement and related activity including the identity and
location of such third party. LICENSEE shall not proceed with any
such Engagement
unless and until (i) LICENSOR provides its advance written consent,
(ii) such third party becomes
bound by a written confidentiality agreement or other appropriate
agreement which insures that confidential information, trade secrets
and all other rights or information protected hereunder will not
be released into the public domain or disclosed to any person or
entity other than the Parties, and will
not be utilized in a manner which ▇▇▇▇▇ or diminishes the rights or
interests of LICENSOR, and (iii)
such third party executes other documents acceptable to LICENSOR
whereby the third party agrees to
(a) transfer to LICENSOR ownership of all technology, intellectual
property and improvements developed during the course of and in
connection with the Engagement, and (b) deliver to
LICENSOR, immediately upon completion of the Engagement, all drawings,
plans, specifications, materials, outlines, data and any other
materials related to the Engagement, regardless of the form of
such items, without retaining the same and without duplicating,
distributing, or disclosing the content
or substance thereof to any person or entity other than the Parties.
SECTION 4 - CONFIDENTIALITY
4.1 Protection. LICENSEE shall not disclose, transfer or offer
to disclose or transfer any Confidential Information or Confidential
Materials to any other person or entity, including without limitation
any of LICENSEE's employees or customers, who do not have a legitimate
need to know Confidential Information or utilize any Confidential
Materials. LICENSEE shall at all times safeguard and hold in trust
and confidence, and neither use or disclose to any third party during
the term of this Agreement and for a period of three years thereafter,
any Confidential Information learned as a result
of activities carried out in performance of this Agreement.
4.2 Purpose. LICENSEE may only use the Confidential Information
and Confidential Materials for the purpose of making, selling and
servicing Licensed Product within the scope of this Agreement.
SECTION 5 - OWNERSHIP, RESPONSIBILITY ETC.
5.1 Ownership. The Parties acknowledge and agree that the
Technology Rights and all Improvements shall be owned by LICENSOR, and
LICENSEE hereby assigns to LICENSOR all right, title and interest in
any to any Improvements whether the same are created or developed by
LICENSEE
or otherwise. Nothing in this Agreement assigns, licenses or
transfers to LICENSEE ownership of the Technology Rights or
Improvements, or any portion thereof, or any other legal rights not
expressly transferred herein.
5.2 Prohibitions. LICENSEE shall not license or sublicense or
attempt to license or sublicense, and shall not patent or attempt to
patent, any of the Technology Rights, Improvements, Confidential
Information, or any derivations or modifications thereof. LICENSEE
shall not alter,
modify or improve any Licensed Product without first (i) disclosing to
LICENSOR with particularity such alterations, modifications or
improvements, and (ii) obtaining LICENSOR'S advance written approval
to make such alterations, modifications or improvements.
5.3 Patent Marking. To the extent that the Technology Rights
include any issued patents, LICENSOR may inform LICENSEE of
appropriate patent marking to be placed on Licensed Products and their
packaging, and LICENSEE shall utilize such marking.
SECTION 6 - INSURANCE
6.1 Insurance. LICENSOR and LICENSEE recognize that the
Licensed Products can be very dangerous and can cause severe injury or
death if manufactured or used improperly. Beginning no later than the
date on which LICENSEE sells or otherwise transfers or provides to a
third party any Licensed Product, and continuing during the entire
period of time during which LICENSEE manufactures, sells or services
Licensed Product and for a period of five (5) years thereafter,
LICENSEE shall acquire and maintain a standard product liability
insurance policy in the amount of Five Million Dollars ($5,000,000.00)
per occurrence which expressly names LICENSOR as an additional named
insured.
SECTION 7 - PAYMENTS
7.1 Payments. All payments to LICENSOR shall be made in United
States dollars. LICENSEE shall pay LICENSOR monies due hereunder on a
quarterly basis based upon the number of Licensed Products
manufactured for sale; provided, however, that (i) all license fees
shall be prepaid on the first business day of each calendar quarter
based upon LICENSEE'S forecast of the number of Licensed Products
forecasted by LICENSEE to be produced, which forecast shall be
provided no later than the first business day of each such quarter,
and (ii) in the event the actual number of Licensed Products produced
during any given quarter is different from the forecast upon which the
prepayment
was based, the amount of underpayment or overpayment shall be added to
or deducted from any prepayment to be made on the first business day
of the following quarter (a "True-up"), or if such True-
up calculation cannot be made in time to adjust the prepayment, a True-
up payment shall be made within thirty (30) days of the end of the
calendar quarter.
7.2 Reports. Within thirty (30) days following the end of each
quarter, LICENSEE shall provide LICENSOR with a written financial
report for the previous quarter. The report shall how (i)
the number of Licensed Products produced under the licenses described
under Section 2.1, (ii) the
number of Licensed Products produced under Licenses for Additional
Units during that quarter, (iii) the number of Licensed Products
produced under the additional licenses described under Section 2.3,
(iv) a calculation of the amount payable in connection with all of the
foregoing, and (v) a calculation of any True-up amount due. The
report shall further state whether LICENSEE desires to purchase any
additional licenses under paragraph 2.3 above for future quarters.
7.3 Interest on Overdue Payments. In the event LICENSEE fails
to pay any amount when due hereunder, such amount shall bear interest
at the rate of eighteen percent (18%) compounded
monthly until the date when such amount is paid in full.
7.4 Non-Refundability of Payments. All payments made by
LICENSEE under this Agreement are made in consideration of LICENSOR's
time, effort, creativity and expense in developing certain technology,
LICENSOR's grant to LICENSEE of a valuable Technology License, and
LICENSOR's providing LICENSEE with a potential competitive advantage
in the marketplace. Accordingly, the Parties deem all payments made
hereunder to be earned when paid and to be
completely non-refundable.
7.5 No Authorization or License Without Payment. LICENSEE shall
not be authorized to sell, and no license from LICENSOR shall be
granted for, be valid for, or apply to, any Licensed Product unless
and until (i) such license is fully paid for by LICENSOR in advance of
the sale of the Licensed
Product to which the license pertains, or (ii) in the case of a True-
up, such license is paid for no later
than thirty (30) days after the end of the quarter in which the
Licensed Products subject to the True-up were sold.
SECTION 8 - RECORDKEEPING AND AUDITS
8.1 Record Keeping. LICENSEE shall keep detailed and complete
records of (i) all Licensed Products manufactured; (ii) to whom such
Licensed Products were sold, rented, leased or otherwise delivered
(including quantities, price, date and location of sale, rental, lease
or delivery); (iii) inventories of Licensed Products ready for sale;
and (iv) services performed using Licensed Products. LICENSEE shall
keep paper copies of all such records, including all underlying
documentation, which shall include but is not limited to purchase
orders and invoices, for a minimum of five (5) years from the date of
creation of a particular record.
8.2 Examinations and Audits. Upon the written request of
LICENSOR and, except as otherwise provided below, at LICENSOR'S
expense (provided that LICENSOR shall not be required to reimburse
LICENSEE for any time, use of facilities or out-of-pocket costs
associated with an
examination or audit), LICENSEE shall allow its books and records to
be audited by any accounting
firm, agent and/or law firm of LICENSOR'S choosing so that LICENSOR
can verify that LICENSEE is properly paying monies due hereunder. For
an examination or audit to the extent necessary to determine or verify
any amounts owed to LICENSOR under this Agreement, LICENSEE shall
allow a full examination and audit of its books and records relating
to manufacturing, marketing, sales, rentals and leases of Licensed
Products and performance of services using Licensed Products, and
other records including books and records regarding quantities,
product types, power capacity, prices, sales, purchase orders,
invoices, supply contracts, rental agreements, lease agreements,
service contracts, entities purchasing, renting or leasing Licensed
Products, locations to which Licensed Products have been delivered,
and related documents and information, for all Licensed Products
manufactured, sold, lost, destroyed, given away, in inventory or used
to perform a service. Such examinations and audits shall be conducted
(i) no more frequently than quarterly, (ii) during reasonable times
and with reasonable
advance notice so as to minimize interference with LICENSEE'S business
operations, and (iii) for the purpose of determining LICENSEE'S
compliance with its payment obligations and other obligations under
this Agreement. In any event, LICENSEE may not delay an examination
or audit more than ten (10) business days from the date of LICENSOR'S
written request. In the event that an examination or audit shows that
a particular license has not been paid for by LICENSEE in advance of
the production of a Licensed Product or within thirty (30) days after
the end of any given quarter in connection with a
True-up, then LICENSEE shall pay LICENSOR twice the cost of such
unpaid license plus
LICENSOR'S reasonable cost of such audit within five (5) days of
written notice from LICENSOR. In the event that an examination or
audit shows that LICENSEE has underreported or has not promptly and
timely reported the number of Licensed Products produced or sold under
the paid-up Technology
License described in Section 2.1 or the License for Additional Units
described in Section 2.3 above,
each such Licensed Product shall be counted as two (2) Licensed
Products for purposes of determining the number of such paid-up and
other licenses that have been utilized under this Agreement, and
LICENSEE shall pay the cost of such audit within five (5) days of
written notice from LICENSOR.
SECTION 9 - DISCLAIMERS, ETC.
9.1 DISCLAIMERS. LICENSOR MAKES NO WARRANTIES, EXPRESS,
IMPLIED OR STATUTORY THAT ARE NOT EXPRESSLY SET FORTH IN THIS
AGREEMENT WITH RESPECT TO THE TECHONOLOGY RIGHTS OR THE LICENSED
PRODCUTS. THE TECHNOLOGY RIGHTS AND THE LICENSED PRODUCTS ARE
MADE AVAILABLE TO LICENSEE STRICTLY ON AN "AS IS" BASIS. LICENSOR
DOES NOT WARRANT THAT THE TECHNOLOGY RIGHTS OR THE LICENSED PRODUCTS
HAVE UTILITY, ARE ERROR FREE, ARE SAFE, ARE RELIABLE, THAT THEY WILL
MEET LICENSEE'S REQUIREMENTS, OR THAT ANY OF THE INVENTIONS THEREIN
ARE PATENTABLE OR THAT THE PATENTS ARE VALID AND ENFORCEABLE WHEN
GRANTED OR THAT THE EXPLOITATION OF THE PATENT RIGHTS OR
COMMERCIALIZING LICENSED PRODUCTS WILL NOT INFRINGE ANY EXISTING OR
FUTURE PATENT OR OTHER LEGAL RIGHTS OF ANY OTHER PERSON OR ENTITY.
ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE TECHNOLOGY
RIGHTS AND THE LICENSED PRODUCTS IS ASSUMED BY LICENSEE.
9.2 REPRESENTATIONS OF LICENSEE. LICENSEE REPRESENTS AND
WARRANTS ONLY THAT: (A) IT HAS THE RIGHT, ABILITY AND INTENTION TO
ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER;
AND (B) IT HAS EXECUTED NO OTHER AGREEMENT IN CONFLICT WITH THIS
AGREEMENT.
9.3 REPRESENTATIONS OF LICENSOR. LICENSOR REPRESENTS AND
WARRANTS ONLY THAT: (A) IT HAS THE RIGHT, ABILITY AND INTENTION TO
ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER;
AND (B) IT HAS EXECUTED NO OTHER AGREEMENT IN CONFLICT WITH THIS
AGREEMENT.
9.4 LIMITATION ON LIABILITY. LICENSOR SHALL NOT BE LIABLE FOR
ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND OR NATURE
CAUSED DIRECTLY OR INDIRECTLY BY ANY INADEQUACY, DEFICIENCY, OR
UNSUITAIBLITY OF THE TECHNOLOGY RIGHTS OR THE LICENSED PRODUCTS. IN
NO EVENT SHALL LICENSOR BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL
OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO, LOSS OF
INVESTMENT, LOSS OF ANTICIPATED PROFITS, OR OTHER ECONOMIC LOSS) EVEN
IF ADVISED OF THE POSSIBILITY THEREOF.
9.5 Indemnification - LICENSEE. LICENSEE assumes all
responsibility and liability for the design, licensing, governmental
approvals, manufacturing, marketing, distribution, sale, rental,
lease,
use, performance of services, practice and commercial exploitation of
the Licensed Products and the Technology Rights. LICENSEE shall fully
and completely indemnify LICENSOR against, and hold it harmless from,
any and all claims, threats of litigation, causes of action and
demands relating to the Technology Rights or the Licensed Products,
including their manufacture, marketing, distribution, offer for sale,
sale, rental, lease, use, practice or commercial exploitation based on
any conduct of LICENSEE or LICENSEE's Customers.
9.6 Allocation of Risk. This Agreement generally (and this
Section in particular) represents
a mutually agreed upon allocation of risk between the Parties and the
consideration given hereunder reflects such allocation of risk.
SECTION 10 - TERM AND TERMINATION
10.1 Term. The term of this Agreement shall begin on the date of
full performance of the Technology Development Agreement, which
performance is a condition precedent to the effectiveness
of this Agreement and the Technology License granted herein, and shall
continue indefinitely thereafter. The Technology License shall
terminate as provided herein before the end of such Term:
(a) upon the mutual written consent of the Parties; or
(b) as provided in Paragraph 10.2 below, or
(c) as provided in Paragraph 10.3 below, or
(d) immediately upon any action by LICENSEE which seeks a
declaration of invalidity of any of the Patent Rights, with the
caveat that nothing in this Agreement shall be construed as
prohibiting or limiting LICENSEE's seeking such a declaration,
but the
consequence of seeking such a declaration shall be automatic and
immediate termination of the License without any notice from
LICENSOR being required to effect such termination, or
(e) immediately upon LICENSEE initiating or directly or
indirectly participating in any reexamination proceeding
concerning the Patent Rights or any portion thereof, including
but not limited to citing prior art to any patent office in any
country of the world, unless such initiation or participation is
pursuant to LICENSOR's written instructions, with the caveat
that nothing in this License Agreement shall be construed as
prohibiting or limiting LICENSEE's participation in any such
proceeding; the consequence of such participation which is not
pursuant to LICENSEE's written instructions, however, shall be
automatic and immediate termination of the License without any
notice from LICENSOR being required to effect such termination.
(f) immediately upon the second occurrence of LICENSEE'S
failure to pay any money due under this Agreement within five
(5) days of the date due; or
(g) immediately upon any breach by LICENSEE of section
3.3, section 4 or section 5.2 of this Agreement.
10.2 Termination at the Will of LICENSEE. LICENSEE may terminate
the License at any time by providing LICENSOR with written notice of
termination.
10.3 Breach. Except with regard to (i) a payment breach under
this Agreement, which is addressed under Section 10.1(f), above, or
(ii) any breach of Sections 3.3, 4 or 5.2, which is addressed under
Section 10.1(g), above, if LICENSEE breaches any other term or
provision of this Agreement and fails to cure such breach within
thirty (30) days of receiving notice of breach from LICENSOR, then
LICENSOR may terminate the License by providing written notice of
termination to LICENSEE. If LICENSEE repeats a type of breach after
it has been cured, the breach shall be deemed incurable and
LICENSOR shall then have the right to terminate the License at any
time by providing written notice of termination to LICENSEE.
10.4 Effect of Termination. Upon the termination of the License:
(i) LICENSEE shall immediately cease making, using,
offering to sell, selling, leasing and transferring Licensed
Product and performing services using Licensed Product; and
(ii) LICENSOR shall not have any further obligation or
liability under this License Agreement; and
(iii) All licenses granted, paid for and used in
connection with Licensed Product delivered to an end user prior
to the date of termination will remain valid in perpetuity and
will not be affected by termination of this License Agreement;
and
(iv) LICENSEE shall forfeit any licenses or related rights
remaining hereunder.
Notwithstanding any such termination of the License, nothing herein
shall relieve LICENSEE of its obligations to pay monies previously due
hereunder.
SECTION 11 - GENERAL PROVISIONS
11.1 LICENSEE's Other Responsibilities. LICENSEE shall obtain
any and all necessary licenses, approvals and other government
authorizations necessary for the Licensed Products, including for
their manufacture, sale, distribution, export, use, rental, lease and
practice engaged in by LICENSEE and any of LICENSEE's Customers.
LICENSEE shall ensure that the Licensed Products are safe and of good
and workmanlike quality and are produced exactly according to all
specifications provided by Licensor. LICENSEE and its customers shall
strictly comply with all applicable laws and regulations concerning
Licensed Products, their manufacture, rental, lease, sale, shipment,
export, etc.
11.2 Attorneys' Fees. In the event of any arbitration, mediation
or litigation between the Parties, the prevailing Party shall be
entitled to recover from the non-prevailing Party any and all costs
including reasonable attorneys' fees, incurred by the prevailing
Party. Such relief shall be in addition to any other relief, award or
damages to which the prevailing Party may be entitled. The court,
mediators
or arbitrators shall determine the prevailing party for the purpose of
this Paragraph.
11.3 Severability. In case any one or more of the provisions
contained herein shall, for any reason, be held to be invalid,
illegal, or unenforceable in any respect, such invalidity, illegality
or unenforceability shall not affect any other provisions of this
License Agreement, and this License Agreement shall be construed as if
such invalid, illegal or unenforceable provision(s) had never been
contained herein; provided that such invalid, illegal or unenforceable
provisions shall first be curtailed, limited or eliminated to the
extent necessary to remove such invalidity, illegality or
unenforceability
with respect to the applicable law as it shall then be applied.
11.4 Governing Law and Forum. This License Agreement shall be
governed, construed and enforced exclusively in accordance with the
laws of the State of Nevada and the laws of the United
States of America. Any arbitration, mediation or litigation between
the Parties shall be conducted
exclusively in Reno, Nevada, U.S.A. and the Parties hereby submit to
such exclusive jurisdiction and venue, and agree that such exclusive
jurisdiction and venue are proper.
11.5 Final Agreement. This License Agreement constitutes the
final and complete agreement between the Parties concerning the
subject matter of this License Agreement and supersedes all prior
agreements, understanding, negotiations and discussion, written or
oral (including prior drafts),
between the Parties with respect thereto. No Party shall be bound by
any condition, definition, representation, or warranty, other than as
expressly set forth herein. Any modification, revision or amendment
of this License Agreement shall not be effective unless made in a
writing executed by both
of the Parties.
11.6 Time is of the Essence. Time is of the essence in the
performance of all obligations under this Agreement.
11.7 Waiver. Any waiver of, or promise not to enforce, any right
under this Agreement shall not be enforceable unless evidenced by a
writing signed by the Party making such waiver or promise.
11.8 Headings. The headings in this Agreement are for the
purpose of convenience only and shall not limit, enlarge or affect any
of the covenants, terms, conditions or provisions of this Agreement.
11.9 Language. The language used in this Agreement shall be
deemed to be the language chosen by the Parties to express their
mutual intent, and no rule of strict construction shall be applied
against any Party.
11.10 Notices. All notices, requests, demands and other
communications hereunder shall be in writing and shall be sent by
registered or certified mail, return receipt requested, or by
commercial courier, with a required copy by facsimile transmission to
the Parties at the addresses set forth above on page 1 of this
Agreement, or to such other person and place as either Party shall
designate by notice to
the other Party. The party sending notice shall obtain confirmation
that all facsimile transmissions were sent to the facsimile telephone
number set forth above on page 1 of this Agreement or such other
facsimile telephone number as either Party shall designate by notice
to the other Party, or, in the event that facsimile transmission is
impossible due to problems on the receiving end, that attempts were
made.
11.11 Assignments. LICENSOR has specifically chosen LICENSEE
to commercialize Licensed Products within the Field of Use, and
LICENSEE shall not, and LICENSEE has neither the right nor the power
to, assign the Technology License or this Agreement to any other
person or entity without the advance written consent of LICENSOR. In
the event that LICENSEE merges with any other entity, changes its
name, or otherwise transforms into a new entity, this Agreement shall
be deemed binding upon and enforceable against such new or other
entity. LICENSOR may, at its sole option, assign its rights or
obligations hereunder, provided that any third party beneficiaries or
third party delegates agree in writing that each such assignment to
which the third party beneficiaries or third party delegates are
parties is subject to the applicable terms and conditions of this
License Agreement.
11.12 Relationship. Neither Party is or shall be a partner,
joint venturer, agent or representative of the other Party.
11.13 Execution and Effective Date. This Agreement may be
executed in any number of
counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument.
The individuals signing below represent that they are duly authorized
to
do so by and on behalf of the Party for whom they are signing.
11.14 Incorporation of Recitals. The Recitals at the
beginning of this Agreement are hereby incorporated as operative terms
and conditions of this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this License
Agreement to be duly executed and entered into as of the date first
above written.
LICENSEE: By (signature): s/
Name (print): ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CEO
LICENSOR: By (signature): s/
Name (print): ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President