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EXHIBIT 10.16
EQUIPMENT LEASE AGREEMENT
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THIS AGREEMENT is made as of the ______ day of ______________, 200___,
between SPEAKING ROSES INTERNATIONAL, INC., located at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ("Licensor"), and _________________ located at
___________________ ("Licensee").
WITNESSETH:
WHEREAS, Licensor has proprietary rights to certain intellectual
property used in the printing, marking, stamping or embossing of flowers, plants
and other products ("Embossing Process"), has protected rights to the Embossing
Process pursuant to a United States and international patents pending and
granted through other means, has developed certain equipment and devices useful
in the Embossing Process and owns all rights in the United States and throughout
the world to the trademarks used in connection with the Embossing Process, (all
of which intellectual property is referred to hereinafter as "Licensed
Property"); and
WHEREAS, Licensee wishes to obtain a lease for the equipment needed to
produce the Licensed Products referred to in a contemporaneously executed
Intellectual Property License Agreement ("IP Agreement"), the general and
procedural provisions of which are deemed included within this Agreement and, in
the event of any confusion or conflict between the provisions of the two
agreements, shall be deemed to be controlling.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual
covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. (a) The term "Application Form" shall mean the Equipment Leasing
Application Form attached to this Agreement as Exhibit A. Licensor shall have
the right to modify or amend the Application Form from time to time, and the
amended Application Form shall be attached hereto as Exhibit "A". Licensee shall
use the current form of the Application Form in complying with the terms of this
Agreement.
(b) The term "Designer Package Equipment" shall mean the Package
set forth on Exhibit B to this Agreement.
(c) The term "Designer Elite Package Equipment" shall mean the
Package set forth on Exhibit C to this Agreement.
(d) The term "Equipment" shall mean the equipment, devices or
apparatus used in the Embossing Process, including the Designer Package
Equipment and/or the Designer Elite Package Equipment.
(e) The term "Owner's Manual" means the manual prepared by or for
the benefit of the Licensor, as amended from time to time, relating to the use,
operation, maintenance and storage of the Equipment.
2. (a) Subject to the terms and conditions of this Agreement,
Licensor hereby leases to Licensee the Equipment for its manufacture, use or
sale of Licensed Products hereunder pursuant to the IP Agreement, until such
time as both this Agreement and the IP Agreement expire or are terminated.
(b) It is understood and agreed that Licensee shall have the right
to utilize the Equipment only in the territory referred to in the IP Agreement.
(c) Licensee's rights in and to the Equipment shall include the
right to sublease Equipment that Licensee has leased pursuant to the terms of
this Agreement to Sublicensees pursuant to sublease agreements in a form
reasonably acceptable to Licensor, and the delivery by Licensee to Licensor of a
completed Application Form with respect to each such sublease. Any sublease by
Licensee hereunder shall be granted only pursuant to a written sublease
agreement between Licensee and Sublicensee, which shall be in a form acceptable
to Licensor and which shall obligate the Sublicensee to be bound by the terms of
this Agreement relative to Sublicensees. Licensor shall not, however, have any
duties or obligations to any Sublicensee under this Agreement.
(d) From and after the date hereof, Licensee shall be responsible
for any loss, theft of or damage to the Equipment, other than normal wear and
tear.
(e) The Equipment shall be located at the address set forth on the
Application Form and shall not be removed from such location without the prior
written consent of Licensor.
(f) Title to the Equipment shall remain with Licensor at all
times, and Licensee shall at all times at its own expense protect and defend
Licensor's title thereto against all claims, liens and legal processes of
Licensee's creditors or persons claiming through Licensee or any Sublicensee.
Licensee shall have no right, title or interest in or to the Equipment except as
expressly set forth herein. The Equipment shall remain personal property,
notwithstanding the manner in which it may be affixed to any real property. Upon
request by Licensor, Licensee shall obtain and cause to be recorded, where
appropriate and pursuant to the Law of the Territory, at Licensee's own expense,
from each landlord, owner, mortgagee or any person having an encumbrance or lien
on property where the Equipment is located, a waiver of any lien, encumbrance or
interest which such person might have or hereafter obtain or claim with respect
to all or any portion of the Equipment. Licensee shall notify Licensor of any
requirement under the Law of the Territory relating to such recordation.
Licensee agrees to execute such documents as Licensor may deem reasonably
necessary to protect Licensor's interest and title to the Equipment. Licensee
shall otherwise take all action required to keep the Equipment free and clear of
all levies, liens and encumbrances which result from any act or omission of the
Licensee.
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(g) (i) Licensee shall use the Equipment in a careful and
proper manner in conformity with (a) all statutes, rules, orders and regulations
of each governmental authority having jurisdiction over the Licensee and/or the
Equipment and its use, operation, maintenance or storage thereof and (b) all
policies of insurance held by Licensee relating to the Equipment and/or its use.
(ii) Licensee shall not use the Equipment in any manner
that would impair the applicability of any manufacturer's warranties or render
the Equipment unfit for its originally intended use, nor permit anyone other
than authorized, properly trained, and competent personnel to operate the
Equipment.
(iii) Licensee shall not, without Licensor's prior written
consent, affix or install any accessory, equipment, device, advertising matter,
or insignia on or to the Equipment. All replacements, repairs, parts and
supplies installed or affixed on or to the Equipment shall thereupon become
Licensor's property, and Licensee shall arrange that there be delivered promptly
to Licensor, upon Licensor's request, all instruments or documents as may be
necessary to evidence Licensor's original and free, clear and unencumbered title
thereto and ownership thereof.
(iv) Licensee shall not use the Equipment for any purpose
other than for the production of Licensed Products using the Embossing Process
under the License and shall use the Equipment only in the manner specified in
the Owner's Manual.
(h) Licensor guarantees the durability of all metallic Equipment
hardware for a period of two (2) years and accepts responsibility for the repair
or replacement thereof for such period of time, as long as Licensee uses the
Equipment in the manner set forth in Section 3.5 above.
(i) Licensor shall have the right to ▇▇▇▇ or direct Licensee to
▇▇▇▇ the Equipment in a distinct and conspicuous manner with the name of
Licensor followed by the words "Owner and Lessor," or other appropriate words
designated by Licensor. Licensee shall not alter, deface, cover or remove any of
Licensor's ownership identification plates or markings on the Equipment, and
upon Licensor's request, Licensor shall affix or re-affix such identification.
(j) Upon termination or expiration of this Agreement, or upon
Licensee's default hereunder, Licensee shall, at its own cost and expense,
return the Equipment, including any attachments, additions or accessories
thereto, unencumbered along with all documentation and manuals related thereto,
including the Owners Manual, to Licensor at an address specified by Licensor in
the same condition as received, less normal wear and tear using an international
carrier acceptable to Licensor. Licensee shall, at its own expense and using an
insurer acceptable to Licensor, insure the Equipment for its full value during
the return.
(k) In connection with the lease of the Equipment from Licensor to
Licensee, Licensor and Licensee agree to enter into a separate security
agreement with respect to the leased Equipment, and Licensee shall cooperate
with Licensor to facilitate the filing of a financing statement (or other
instrument under the law of the Territory notifying third parties of Licensor's
priority security interest in the Equipment) with appropriate government
officials.
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3. (a) (i) Concurrently with the execution of this Agreement,
Licensee shall submit a completed Application Form to Licensor for the Equipment
to be initially leased by Licensee. Upon any sublease by Licensee of any
Equipment to a Sublicensee, Licensee shall submit to Licensor an additional
completed Application Form with respect to the Equipment to be subleased to such
Sublicensee.
(ii) For each piece of equipment leased by Licensee
hereunder, during the term of this Agreement and any renewal of the term of this
Agreement (or, in the case of Licensee's sublease of Equipment, during the term
of such sublease and any renewal thereof), Licensee shall pay to Licensor a
monthly equipment fee(s) as listed on Addendum A in consideration of the lease
of the Equipment from Licensor. Licensee shall also pay Licensor the costs of
shipping the Designer Package Equipment to Licensee by international carrier
acceptable to Licensor, fully insured.
(b) Licensee agrees to obtain, at its sole cost and expense, all
necessary customs, import and other governmental authorizations and approvals in
the Territory relating to the Equipment and this Agreement (including without
limitation foreign exchange, foreign investment and transfer of technology
approvals and notifications, if applicable). Licensor agrees to cooperate fully
with Licensee in obtaining any necessary authorizations and approvals.
Licensor's obligations under this Agreement are specifically subject to the
grant and effectiveness of all such necessary authorizations and approvals.
Notwithstanding any other provisions of this Agreement, Licensee agrees not to
export from the Territory or otherwise make the Licensed Products or Equipment
available to any third party for use outside of the Territory, or to make the
Licensed Products or Equipment available to any third party within the Territory
if Licensee knows, or has reasonable grounds to suspect, that such third party
is planning to use or otherwise transfer the Licensed Products or Equipment
outside of the Territory in violation of such export laws, regulations or orders
or the terms of this Agreement.
(c) Licensor shall have the right to require Licensee to execute a
personal guarantee of Licensee's obligations hereunder. All equipment leases
will have a personal guarantee. The other obligations under this contract will
be guaranteed by the corporation executing this agreement.
4. (a) Licensor will provide Licensee, at Licensee's expense, with
technical support by telephone Monday through Saturday from 7:00 a.m. to 5:00
p.m. (United States Mountain Time).
(b) Licensee shall have the option of purchasing additional design
plates from Licensor and shall have access to Licensor's graphic design
department in connection with the development and purchase of such design
plates.
(c) Licensor shall provide Licensee with an Owner's Manual, which
shall be included with the Equipment and returned upon expiration or termination
of this Agreement.
5. The term of this Agreement shall be co-terminus with the IP Agreement
and be effective so long as the IP Agreement is effective.
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IN WITNESS WHEREOF, Licensor and Licensee have caused this Area License
and Equipment Lease Agreement to be executed by their duly authorized officers,
owners or agents on the respective dates set forth below.
LICENSOR: LICENSEE:
SPEAKING ROSES INTERNATIONAL, INC.
By: By:
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Title: Title:
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Date: Date:
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EXHIBIT A
APPLICATION FORM
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EXHIBIT B
DESIGNER PACKAGE EQUIPMENT
PACKAGE
License Agreement 24 Months
Customer Service / (866) 400 ROSE (7673) Yes
Equipment Warranty Life Time(*)
Supply Department 8am-5pm
Technical Support in Place Available
* Metal Parts
EQUIPMENT
Machine and parts 1
Gold Ink 1 Kg
Bronze Ink 1 Kg
Ink Thinner 1 Liter
Phrases 76 Most Popular
Training Manual Included
Training Video Included
Printing Kit (Misc. Items) Included
(*) Metal Parts
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EXHIBIT C
DESIGNER ELITE PACKAGE EQUIPMENT
Engraver Machine 1
Blank Plates 50
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Addendum A
SHIPPING INFORMATION date:
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Name: _____________________________________ Company: _________________________
Address: ____________________________ City: ___________________ State: ____
Country: __________________ Zip: __________________ Phone: ________________
Fax: __________________________ E-mail: _____________________________________
CONTACT NAME FROM THE COMPANY
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Name: ____________________________________ Position: ________________________
MACHINE(S) THAT LICENSEE IS REQUESTING
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|_| ___ Embossing Machine
$995 Initial Fee (ea.)
$1 at end of lease
|_| ___ Photographic (Basic) Plate Making Machine
$199 Initial Fee (ea.)
$50 monthly two-year lease (ea.)
TOTAL CHARGES
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Initial Payment: $_______ + Training Fee: $_______ + Shipping Charges: $_______
Exclusive Fee: $_________ = TOTAL: $ __________
Payment Method: Initial _________ Monthly _________
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The undersigned hereby agrees to abide by all terms and conditions set forth in
the Area License Agreement and Addendums. All equipment is under a two-year
lease referred to in section 3 of the document. None of our equipment is for
sale and must be leased so that Speaking Roses International, Inc. retains title
and control of all equipment. The undersigned understands it will be invoiced
for said equipment on monthly basis.
_________________________________________ _____________________________
Area Licensee Date
_________________________________________ _____________________________
Speaking Roses International, Inc. Date
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