EXHIBIT 10.6
BULLHIDE
DEVELOPMENT and Distribution AGREEMENT
THIS AGREEMENT, made a Spokane, Washington, as of the date set forth
below, by and between THE BULLHIDE LINER CORPORATION, a Washington corporation,
d/b/a Bullhide Liner (hereinafter "Bullhide"), and ________________ Corporation,
(hereinafter referred to as "Licensee"); TO BE NAMED.
WHEREAS, Bullhide is engaged in the business of operating and licensing
Installation Centers under the name of "Bullhide Liner" which offers to sell to
the public a custom spray- molded permanent polyurethane lining that protects
and preserves the beds of trucks, vans, trailers and boats; and
WHEREAS, Bullhide has developed a business plan and method in
connection with the operation of Bullhide Liner Installation Centers for
providing products and services, utilizing certain standards, specifications,
methods, procedures, techniques, management systems, identification schemes,
recipes and proprietary marks and information (hereinafter "Bullhide Liner
System"); all of which may be changed, improved and further developed from time
to time by Bullhide; and
WHEREAS, the distinguishing characteristics of the Bullhide Liner
System include, without limitation, the name and ▇▇▇▇ "Bullhide," together with
such other trade names, service marks, trademarks and trade symbols, emblems,
signs, slogans, insignia and copyrights as Bullhide has adopted and designated
for use in connection with the Bullhide Liner System and as Bullhide may
hereafter acquire or develop and designate for use in connection with the
Bullhide Liner System (hereinafter "Licensed Rights"); and
WHEREAS, Bullhide has established an excellent reputation and goodwill
with the public with respect to the quality of products and services available
at Bullhide Liner Installation Centers, which reputation and goodwill have been
and continue to be of major benefit to Bullhide; and
WHEREAS, Licensee recognizes the benefits to be derived from being
identified with and licensed by Bullhide and being able to utilize the Bullhide
Liner System and the Licensed Rights which Bullhide makes available to its
Licensees and through Unit License Agreements relating to specific Installation
Center sites selected by Licensee and Accepted by Bullhide; and
WHEREAS, Licensee desires to obtain the right to select proposed sites
on which to construct Bullhide Liner Installation Centers, to submit the same to
Bullhide for its acceptance and, upon the acceptance of each proposed site by
Bullhide construct, own and operate a Bullhide Liner Installation Center upon
such site (hereinafter "Developmental Rights") upon the terms and conditions set
forth herein which terms are necessary to ensure the controlled
development of Bullhide Liner Installation Centers within the Licensed Areas and
to maintain Bullhide's high uniform standards of quality and service and to
protect the goodwill and enhance the public image of the Bullhide Liner System
and the Licensed Rights.
NOW, THEREFORE, in consideration of the foregoing and of the covenants
herein contained, the parties, intending to be legally bound, hereby agree as
follows:
I . Area Exclusivity and Construction Schedule
1.1 Subject to the terms and conditions of this Agreement,
Bullhide hereby grants to the Licensee the exclusive
Developmental and Distribution Rights for Bullhide Liner
Installation Centers in the following areas (hereinafter the
"Exclusive Development Areas"):
SUFFOLK COUNTY AND MIDDLESEX COUNTY, MASSACHUSETTS
1.2 Licensee agrees to develop and commence construction a minimum
of 7 Bullhide Liner Installation Centers within the Exclusive
Development Areas in accordance with the following development
and performance schedule (hereinafter the "Performance
Schedule"):
Total No. of Installation Centers
Open or Under Construction On or Before
1 SEPTEMBER 15, 1999
2 MARCH 15, 2000
3 SEPTEMBER 15, 2000
4 MARCH 15,2001
5 SEPTEMBER 15, 2001
6 MARCH 15, 2002
7 SEPTEMBER 15, 2002
1.3.1 For purposes of this Agreement, a Bullhide Liner Installation
Center shall be deemed to be "under construction," where the
plans and specifications provide for the remodeling of an
existing building, whether owned or leased by Licensee, such
plans and specifications have been approved by Bullhide,
remodeling work has actually commenced and at least One
Thousand Dollars ($1,000.00) has been expended for labor and
materials Any Bullhide Liner Installation Center under
construction which is not completed and in operation within
one hundred eighty (180) days from the date such Installation
Center is first deemed under construction, shall not
thereafter be deemed "under construction."
***1.3.2 For the Exclusive Marketing rights to develop the areas above,
the Licensee agrees to pay a sum of $5,000 per licensed
Installation Center to be developed. The number of Unit
Licenses in this Development Area is
specified in 11.2. Licensee agrees that this specifically does
not constitute a franchise fee per se, that this payment is in
consideration to Bullhide for the reservation of these areas
by the licensee for future development.*** THIS SECTION IS
VOID FOR THE PURPOSES OF THIS AGREEMENT
1.3.3 The continuous purchase of Bullhide materials is necessary to
qualify a location as open and operating. Each location must
purchase a drum set of material (160 gallons) per month on
average over a six month period, not including the initial six
month start-up period. Any location not purchasing or
consuming the minimum amount of material over a six month
period win not be counted under the Performance Schedule.
1.4 Failure to meet the Performance Schedule set forth in
paragraph 1.2 above will result in the forfeiture of the
rights to exclusivity by the Licensee, for the development
area. However, the license(s) to maintain, distribute to and
operate the Installation centers established in the areas will
not be effected by such failure to meet any Performance
schedule.
2. Termination
Unless sooner terminated in accordance with the terms of this
Agreement, the term of this Agreement and all Developmental Rights
granted hereunder shall last indefinitely, subject to renewal every
five (5) years.
3. Renewal.
This Agreement shall be subject to renewal every five years by
agreement of both of the parties.
4. Timely Performance.
Licensee hereby acknowledges that its timely development of the
Bullhide Liner Installation Centers in the Licensed Development Areas
in accordance with the performance Schedule is of material importance
to Bullhide and the Licensee, and agrees, as a condition of the
continuance of the rights granted hereunder, to develop and construct
Bullhide Liner Installation Centers within the Development Areas in
accordance with the Performance Schedule, to operate such Installation
Centers pursuant to the terms of the Unit License Agreements and to
maintain all such Installation Centers in operation continuously.
5. Site Selection. Licensee agrees to submit for evaluation by Bullhide
pursuant to Bullhide's site selection criteria, a completed Bullhide's
Site Acceptance Request Form and the required attachments for each site
proposed for a Bullhide Liner Installation Center. Bullhide shall
review the Site Acceptance Request Form, conduct such other
investigation of the proposed site it determines is necessary to
properly evaluate the site,
and either accept or reject the site by written notice to Licensee on
Bullhide's Site Acceptance Form. Site acceptance shall be contingent
upon, among other things, execution by Licensee and Bullhide of the
Unit License Agreement for said site as provided in 16 hereof Licensee
acknowledges that no officer, employee or agent of Bullhide has any
authority to approve or accept any proposed site except by written
acceptance on Bullhide's Site Acceptance Form and any other
representations, approvals or acceptance, whether oral or written,
shall be of no effect; Licensee further acknowledges that Bullhide's
acceptance of said site does not constitute any representation,
warranty or guarantee by Bullhide that said site will be a successful
location for a Bullhide Liner Installation Center.
6. Unit License Agreement.
6.1 Licensee shall execute said Unit License Agreement for each
Bullhide Installation Center. Said Unit License Agreement
shall be the standard form of Unit License Agreement then
being utilized by Bullhide; provided, however, that Licensee
may elect to sign the Unit License Agreement in use at the
time of the execution of this Development Agreement, subject
to any changes in said Unit License Agreement required by any
applicable law, regulation or ordinance in effect from time to
time.
7. Commencement of Construction.
7.1 Upon receipt of Bullhide's written acceptance of a proposed
site on Bullhide's Site Acceptance Form as set forth in 15
hereof, Licensee shall immediately take the necessary steps to
acquire the site, by purchase, lease or sublease, and to
otherwise obtain the rights to construct, maintain and operate
a Bullhide Liner Installation Center on the site.
7.2 Licensee must obtain all permits, governmental approvals, and
otherwise obtained the rights to construct, maintain and
operate a Bullhide Liner Installation Center on the site, and
Licensee shall notify Bullhide of such fact in writing.
7.3 Upon receipt from Bullhide of the executed Unit License
Agreement for said site, Licensee shall commence construction
or remodeling of the Bullhide Liner installation Center at the
site in accordance with the terms of the Unit License
Agreement.
8. Limitation of Agreement. Licensee acknowledges and agrees that:
8.1 This Agreement includes only the right to select sites for the
construction of Bullhide Liner Installation Centers and to
submit the same to Bullhide for its approval in accordance
with the terms of this Agreement. This Agreement does not
include the grant of a license by Bullhide to Licensee of any
rights to use the Licensed Rights, the Bullhide Liner System,
or to open or operate any Bullhide
Liner Installation Centers within the Licensed Area. Licensee
shall obtain the license to use such additional rights at each
Bullhide Liner Installation Center upon the execution of each
Unit License Agreement by both Licensee and Bullhide and only
in accordance with the terms of each Unit License Agreement.
8.2 The Developmental Rights granted hereunder are personal to
Licensee and cannot be sold, assigned, transferred or
encumbered, in whole or in part, except as set forth in 112
hereof
8.3 Licensee shall have no right to use in its name the name
"Bullhide Liner" or other names used by Bullhide. If Licensee
has heretofore obtained permission to use any of these names,
and does use any of them in its name, then, upon termination
of this Agreement for any reason whatsoever, Licensee shall
immediately take all steps necessary to eliminate any of these
names from its name, except as permitted by any Unit License
Agreement.
8.4 Except as provided in I I hereof, the Developmental Rights
granted hereunder are non-exclusive, and Bullhide retains the
right, in its sole discretion:
8.4.1 To continue to construct and operate other Bullhide
Liner Installation Centers and to use Bullhide Liner
System and the Licensed Rights at any location
outside the Development Areas, and to license others
to do so.
8.4.2 To develop, use and license the rights to any trade
names, trademarks, service marks, trade symbols,
emblems, signs, slogans, insignia or copyrights not
designated by Bullhide as Licensed Rights, for use
with different license system for the sale of
different products or services other than in
connection with the Bullhide Liner System, on such
terms and conditions as Bullhide may deem advisable
and without granting Licensee any rights therein.
8.4.3 To promote or conduct special exhibits at regional or
nationally oriented fairs, shows and special events
utilizing mobile units or temporary locations within
the Development Areas.
Bullhide believes that, on occasion, certain national
or regional customer accounts will be developed by
them which may require a bidding process by two or
more Licensees. In this event, each qualified
Licensee desiring to bid on such accounts will be
given the opportunity to bid for such work.
8.5 Because complete and detailed uniformity under many varying
conditions may not be possible or practical, Bullhide
specifically reserves the right and privilege, at its sole
discretion and as it may deem in the best interests of all
concerned in any specific instance, to vary standards for any
Licensee based upon the peculiarities of a particular site or
circumstance, density of population, business potential,
population of trade area, existing business practices or any
other condition which Bullhide deems to be of importance to
the successful operation of such Licensee's business. Licensee
shall not be heard to complain on account of any variation
from standard specifications and practices granted to any
Licensee and shall not be entitled to require Bullhide to
grant Licensee a like or similar variation hereunder.
8.6 Licensee has sole responsibility for the performance of all
obligations arising out of the operation of its business
pursuant to this Agreement, including, but not limited to, the
payment when due of any and all taxes levied or assessed by
reason of such operation.
8.7 In all public records, in its relationship with other persons,
and in any offering circular, prospectus or similar document,
Licensee shall indicate clearly the independent ownership of
Licensee's business and that the operations of said business
are separate and distinct from the operation of Bullhide's
business.
8.8 Licensee agrees to indemnify and hold harmless Bullhide from
any liability or damage Bullhide may incur, including
reasonable attorney fees, as a result of claims, demands,
costs or judgments, of any kind or nature, by anyone
whomsoever, arising out of, or otherwise connected with, this
Agreement, the Developmental Rights, the acquisition, of any
Installation Center site, or ownership, maintenance or
operation of any Bullhide Liner Installation Center by
Licensee.
9. Services by Bullhide . Bullhide shall, at its expense, make available
to Licensee the following:
9.1 The benefit of Bullhide's experience in the selection of
Bullhide Liner Installation Center sites through the use of
Bullhide's Site Acceptance Form, site selection criteria and
any related materials which Bullhide may make available to new
Licensees from time to time, and such review thereof as
Bullhide, at its option, may undertake as part of its
evaluation of Licensee's request for site approvals.
9.2 Review of Licensee's site plan and final construction plans
and specifications for conformity to the construction
standards and specifications of the Bullhide Liner System,
upon Bullhide's receipt of Licensee's written request for
approval thereof.
9.3 Initial training in the Bullhide Liner System, including
standards, methods, procedures and techniques, for Licensee
(if he is an individual); for each person who has an interest
in the Licensee (if Licensee is a group of individuals, a
corporation, a partnership or an unincorporated association or
a similar entity); if requested to do so by Bullhide; and for
two additional persons who are actively involved in the
management or operation of the business of Licensee or the
operation of any Bullhide Liner Installation Center. Such
training shall be at such
time and places as Bullhide may designate for its training
program, in its discretion, and shall be subject to the terms
of each Unit License Agreement.
10. Default: Termination.
10.1 The occurrence of any of the following events shall constitute
a default under this Development Agreement:
10.1.1 If Licensee shall, in any respect, fail to
meet the Performance Schedule.
10.1.2 If Licensee shall use the Bullhide Liner
System or Licensed Rights, or any other
names, marks, systems, insignia, symbols or
rights which are the property of Bullhide
except pursuant to, and in accordance with,
a valid and effective Unit License
Agreement.
10.1.3 If Licensee, or persons controlling,
controlled by, or under common control with
Licensee, shall have any interest, direct or
indirect, in the ownership or operation of
any installation Center engaged in the sale
or use of competitive polyurethane coatings
and related products within the development
Areas or in any Installation Center which
looks like, copies or imitates any Bullhide
Liner Installation Center or operates in a
manner tending to have such effect other
than in accordance withP. I I hereof.
10.1.4 If Licensee shall fail to remit to Bullhide
any payments pursuant to P. 5 when the same
are due.
10.1.5 If Licensee shall purport to effect any
assignment other than in accordance with P.
I I hereof
10.1.6 Except as provided in P. 11. 2 hereof, if
Licensee attempts to sell, assign, transfer
or encumber this Agreement prior to the time
that at least fifty percent (50 %) of the
Bullhide Liner Installation Centers to be
constructed and opened for business in
accordance with the Performance Schedule
are, in fact, open or under construction.
10.1.7 If Licensee makes, or has made, any
misrepresentation to Bullhide in connection
with obtaining this Development Agreement,
any site approval hereunder, or any Unit
Franchise Agreement.
10.1.8 If Licensee fails to obtain Bullhide's prior
written approval or consent as expressly
required by this Agreement.
10.1.9 If Licensee defaults in the performance of
any other obligation under this Agreement.
10.1.10 If Licensee defaults in the performance of
any obligation under any Unit License
Agreement with Bullhide, regardless of
whether or not said Unit License Agreement
is terminated as a result of such default.
10.1.11 If Licensee, or any person controlling,
controlled by or under common control with
Licensee, shall be adjudicated a bankrupt or
insolvent; shall make an assignment for the
benefit of creditors or similar disposition
of the assets of the license business; or
shall voluntarily abandon the license
business. This provision may not be
enforceable under federal bankruptcy law (I
I U. S. C. A.ss.10 1, et seq.).
10.1.12 If Licensee, or any person controlling,
controlled by, or under common control with
Licensee, shall be convicted or pleads
guilty or no contest to a charge of
violating any felony relating to business.
10.2 Upon occurrence of any of the events set forth inP. 10. 1,
Bullhide may, without prejudice to any other rights or
remedies contained in this Agreement or provided by law or
equity, terminate this Agreement. Such termination shall be
effective thirty (30) days after written notice (or such other
notice as may be required by applicable Washington law) is
given by Bullhide to Licensee of any of the events set forth
in subparagraphs 10. 1. 1 through 10. 1. 10 ofP. 10. 1 if such
defaults are not cured within such period. Termination shall
be effective immediately and without notice, however, upon
occurrence of any of the events specified in subparagraphs 10.
1. 11 and 10. 1. 12 ofP. 10. 1, except where prohibited by
Washington law.
10.3 Upon termination of this Agreement for any reason, or upon
expiration of the term hereof, Licensee agrees as follows:
10.3.1 To cease immediately any attempts to select
or develop sites on which to construct
Bullhide Liner Installation Centers.
10.3.2 To cease immediately to hold itself out in
any way as a Licensee of Bullhide or to do
anything which would indicate any
relationship between it and Bullhide except
to the extent permitted pursuant to P. 10.4.
10.4 Termination of this Agreement shall not affect the rights of
Licensee to operate Bullhide Liner Installation Centers in
accordance with the terms of any Unit
License Agreements with Bullhide until and unless such Unit
License Agreements, or any of them, are terminated in
accordance with their terms.
11. Assignment. Conditions and Limitations.
11.1 Licensee shall neither sell, assign, transfer nor encumber
this Agreement, the Developmental Rights, or any other
interest hereunder, nor suffer or permit any such assignment,
transfer or encumbrance to occur by operation of law or
otherwise, without the prior written consent of Bullhide.
If Licensee is a corporation, partnership, unincorporated
association or similar entity, the terms of this P. I I shall
be deemed to apply to any sale, resale, pledge, assignment,
transfer or encumbrance of the voting stock of, or other
ownership interest in, Licensee, which would, alone or
together with other related, precious, simultaneous or
proposed transfers, result in a change of "control" of
Licensee within the meaning of the Securities Exchange Act of
1934 and the regulations thereunder.
The term "Licensee," as used in this P. 11, shall be deemed to
include the person or persons who control Licensee as
disclosed to Bullhide in a writing upon the execution of this
Agreement attached hereto as an exhibit and made a part hereof
for all purposes.
11.2 In the event of the death, disability or permanent incapacity
of Licensee, Bullhide shall not unreasonably withhold its
consent to the transfer of all of the interest of Licensee to
his spouse, heirs or relatives, by blood or marriage, whether
such transfer is made by will or by operation of law, provided
that the requirements of P. 11. 7 hereof have been met. In the
event that Licensee's heirs do not obtain the consent of
Bullhide as prescribed herein, the personal representative of
Licensee shall have a reasonable time to dispose of Licensee's
interest hereunder, which disposition shall be subject to all
the terms and conditions for transfers under this Agreement.
11.3 Licensee has represented to Bullhide that he is entering into
this Development Agreement with the intention of complying
with its terms and conditions itself and not for the purpose
of resale of the Developmental Rights hereunder. Therefore,
Licensee agrees that any attempt to assign this Agreement,
prior to the time that at least fifty percent (50%) of the
Bullhide Liner Installation Centers to be constructed
hereunder are opened or under construction, except pursuant to
P. 11. 2 hereof, shall be deemed to be an event of default.
11.4 Except as provided in P. 11. 3, if Licensee receives from a
third person and desires to accept a bona fide written offer
to purchase its business, Developmental Rights and interests,
Bullhide shall have the option, exerciseable within forty-five
(45) days after receipt of written notice, and a copy of such
offer and the other
information set forth in this P. 11. 4, to purchase such
business, Developmental Rights and interests, including
Licensee's right to develop sites within the Licensed Areas,
on the same terms and conditions as offered by said third
party. In order that Bullhide may have information sufficient
to enable it to determine whether to exercise its option,
Licensee shall deliver to Bullhide certified financial
statements as of the end of Licensee's most recent fiscal year
and such other information about the business and operations
of Licensee as Licensee has provided to said third party. If
Bullhide does not exercise its option, Licensee may, within
sixty (60) days from the expiration of the option period,
sell, assign and transfer its business, Developmental Rights
and interests to said third party provided Bullhide has
consented to such transfer as required by this P. 11. Any
material change in the terms of the offer prior to closing of
the sale to such third party shall constitute a new offer,
subject to the sale rights of first refusal by Bullhide or its
nominee as in the case of an initial off-er. Failure by
Bullhide to exercise the option afforded by this P. 11. 4
shall not constitute a waiver of any other provision of this
Agreement, including all of the requirements of this P. I I
with respect to the proposed transfer.
11.5 Licensee acknowledges and agrees that the restrictions on
sale, assignment or transfer imposed herein are reasonable and
are necessary to protect the Developmental Rights, the
Bullhide Liner System and the Licensed Rights, as well as
Bullhide's excellent reputation and image, and are for the
protection of Bullhide, Licensee, and other Licensees. Any
assignment or transfer permitted by this P. I I shall not be
effective until Bullhide receives a completely executed copy
of all transfer documents, and consents in writing.
11.6 Except as provided in P. 11. 3 hereof, Bullhide agrees not to
unreasonably withhold its consent to a sale, assignment or
transfer by Licensee hereunder. Consent to such transfer
otherwise permitted or permissible as reasonable may be
refused unless:
11.6.1 All obligations of the Licensee created by
this Agreement, all other license documents,
including all Unit License Agreements, and
the relationship created hereunder are
assumed by the transferee.
11.6.2 All ascertained debts of Licensee to
Bullhide are paid.
11.6.3 Licensee is not in default hereunder.
11.6.4 Transferee satisfactorily completes the
training required of new Licensees on
Bullhide's then current terms prior to the
date of transfer.
11.6.5 Licensee satisfies Bullhide that the
transferee meets all of the requirements of
Bullhide for new Licensees, including but
not
limited to, good reputation and character,
business acumen, operational ability,
financial strength and other business
considerations.
11.6.6 Transferee executes or, in appropriate
circumstances, causes all necessary parties
to execute Bullhide's standard form of
Development Agreement, Unit License
Agreements for all Installation Centers open
or under construction, and such other then
current ancillary agreements being required
by Bullhide of new Licensees on the date of
transfer.
11.6.7 Licensee executes a general release in a
form satisfactory to Bullhide of any and all
claims against Bullhide.
11.6.8 Licensee or transferee pays to Bullhide a
transfer fee in an amount sufficient to
cover Bullhide's reasonable costs in
effecting the transfer and in providing
training and other initial assistance to
transferee.
11.6.9 This Agreement shall inure to the benefit of
Bullhide, its successors and assignees, and
Bullhide shall have the right to transfer or
assign all or any part of its interest
herein to any person or legal entity.
12. Notices. All notices hereunder shall be in writing and shall be duly
given if hand delivered or sent by registered or certified mail,
postage prepaid, addressed:
If to Bullhide at: The Bullhide Liner Corporation
North ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Licensee at: ▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To be Named
▇▇▇▇ ▇▇▇▇▇▇▇
or at such other address as Bullhide or Licensee shall have specified by notice
to the other party hereunder.
13. Governing. This Agreement shall be deemed to have been made and entered
into in the State of Washington and all rights and obligations of the
parties hereto shall be governed by and construed in accordance with
the laws of the State of Washington.
14. Remedies Cumulative: Waiver: Consent . All rights and remedies of
Bullhide and of
Licensee enumerated in this Agreement shall be cumulative and, except
as specifically contemplated otherwise by this Agreement, none shall
exclude any other right or remedy allowed by law or in equity and said
rights or remedies may be exercised and enforced concurrently. No
waiver by Bullhide or by Licensee of any covenant or condition or the
breach of any covenant or condition of this Agreement to be kept or
performed by the other party shall constitute a waiver by the waiving
party of any subsequent breach or non-observance on any other occasion
of the same or any other covenant or condition of this Agreement.
Subsequent acceptance by Bullhide of any payments due to it hereunder
shall not be deemed to be a waiver by Bullhide of any preceding breach
by Licensee of any terms, covenants or conditions of this Agreement.
Whenever this Agreement requires Bullhide's prior approval or consent,
Licensee shall make a timely written request to Bullhide therefor, and
such approval shall be obtained in writing. Bullhide will also consider
granting, in its sole discretion, other reasonable requests
individually submitted by Licensee in writing for Bullhide's prior
waiver of any obligation imposed by this Agreement. Bullhide makes no
warranties or guarantees upon which Licensee may rely, and assumes no
liability or obligation to Licensee, by providing any waiver, approval,
consent or suggestion to Licensee in connection with this Agreement, or
by reason of any neglect, delay or denial of any request therefor. Any
waiver granted by Bullhide shall be subject to Bullhide's continuing
review, may subsequently be revoked for any reason effective upon
Licensee's receipt of ten (10) days' prior written notice, and shall be
without prejudice to any other rights Bullhide may have.
15. Severability. If any provision of this Agreement or the application of
any provision to any person or to any circumstances shall be determined
to be invalid or unenforceable, then such determination shall not
affect any other provision to any other person or circumstance, all of
which other provisions shall remain in full force and effect, and it is
the intention of Bullhide and Licensee that if any provision of this
Agreement is susceptible of two or more constructions, one of which
would render the provision enforceable and the other or others of which
would render the provision unenforceable, then the provision shall have
the meaning which renders it enforceable.
16. Entire. This Agreement together with all Unit License Agreements
executed hereunder constitutes the entire agreement between Bullhide
and Licensee in respect of the subject matter hereof, and this
Agreement supersedes all prior and contemporaneous agreements between
Bullhide and Licensee in connection with the subject matter of this
Agreement. No officer, employee or other servant or agent of Bullhide
or Licensee is authorized to make any representation, warranty or other
promise not contained in this Agreement. No change, termination or
attempted waiver of any of the provisions of this Agreement shall be
binding upon Bullhide or Licensee unless in writing and signed by
Bullhide and Licensee.
17. Joint and Several Obligation. If the Licensee consists of more than one
person, their liability under this Agreement shall be deemed to be
joint and several.
18. Counterpart: Paragraph Headings: Pronouns. This Agreement may be
executed in any number of counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument. The paragraph headings in this Agreement are for
convenience of reference only and shall not be deemed to alter or
affect any provision thereof. Each-pronoun used herein shall be deemed
to include the other number and genders.
19. Acknowledgments. Licensee acknowledges that:
19.1 It has conducted an independent investigation of the business
contemplated by this Agreement and recognizes that it involves
business risks making the success of the venture largely
dependent upon the business abilities of Licensee. Bullhide
expressly disclaims the making of, and Licensee acknowledges
that it has not received or relied upon, any warranty or
guarantee, express or implied, as to the potential sites,
volume, profits or success of the business venture
contemplated by this Agreement.
19.2 It has no knowledge of any representations by Bullhide or its
officers, directors, shareholders, employees, agents or
servants about the business contemplated by this Agreement,
that are contrary to the terms of this Agreement or the
documents incorporated herein, and further represents to
Bullhide as an inducement to its entry into this Agreement,
that it has made no misrepresentations in obtaining this
Agreement.
19.3 It has received, read and understood this Agreement, the
attachments hereto, including the Unit License Agreement
attached hereto; Bullhide has fully and adequately explained
the provisions of each to its satisfaction; and Bullhide has
accorded it ample time and opportunity to consult with
advisors of its own choosing about the potential benefits and
risks of entering into this Agreement.
19.4 It is aware of the fact that some other present Licensees of
Bullhide may operate under different forms of agreement and,
consequently, that Bullhide's obligations and rights in
respect to its various joint ventures may differ materially in
certain circumstances.
20. Effective Date. This Agreement shall be effective as of the date it is
executed by The Bullhide Corporation, d/b/a Bullhide Liner.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement.
Bullhide:
THE BULLHIDE LINER CORPORATION
By__________________________________
Its____________________________
WITNESSES:
______________________________ Dated:_____________________________
AREA DEVELOPER LICENSEE:
Corporation:
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To Be Named
By____________________________
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Title___________________________
WITNESSES:
_____________________________ Dated:_________________________