EXHIBIT 10.7
Cool Luc, L.L.C.
Exclusive License Agreement
1. Introduction.
This Exclusive License Agreement (the "Agreement") is made this
1st day of November, 2002, between COOL LUC, L.L.C. (referred to
as "Licensor" and/or "COOL"), an Illinois limited liability
company doing business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and STAR BEVERAGE, INC. (referred to as
"Licensee" and/ or "STAR"), a Nevada corporation doing business
at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Property
The Property refers to all proprietary rights, including but not
limited to copyrights, trade secrets, business methods, formulas,
research data, know-how and specifications related to COOL as
well as any trademark rights and associated good will. (Exhibit
A).
3. Licensed Products.
Licensed Products are defined as any products or services sold by
Licensee that incorporates the Property.
4. Grant of Rights.
Licensor grants to Licensee an exclusive license to make, use and
sell the Property solely in association with the manufacture,
sale, use, promotion or distribution of the Licensed Products.
5. Sublicense.
Licensee may sublicense the rights granted pursuant to this
agreement. Licensee shall give written notice to Licensor of any
sublicense.
6. Reservation of Rights.
Licensor expressly reserves all rights other than those being
conveyed or granted in this Agreement. However, in the event
STAR pays COOL the cumulative sum of $1,000,000 under the terms
of this agreement within five (5) years from the Effective Date,
COOL shall irrevocably assign and sell to STAR the property and
trademarks identified in "Exhibit A" hereto. Said assignment and
sale shall maintain the definition of "Territory and Market" as
defined herein and COOL shall be allowed to market and sell
Licensed Products in the Territory. As part of the consideration
for the assignment, royalty payments shall continue to be paid
after the assignment for so long as STAR makes, uses or sells
Licensed Products. In the event that STAR does not pay the
$1,000,000 by the end of the five-year period, then STAR will not
be entitled to take ownership of the Property, and the license
would, at the option of the Licensor, become non-exclusive.
7. Territory and Market.
The rights granted to Licensee are worldwide (the "Territory")
and for all markets and industries except for the Chicago
Metropolitan Area and Michigan. Licensor shall have the right
during the term of this License and thereafter to make, use and
sell Licensed Products using the Property in those markets.
8. Term.
This Agreement shall commence upon the latest signature date (the
"Effective Date"), and shall extend for a period of one hundred
years, unless otherwise adjusted pursuant to Section 6 (the
"Term"). The Term shall be automatically extended for additional
one hundred year renewal periods (the "Automatic Renewal Term").
Said Automatic Renewals shall continue as long as STAR and or its
Assigns does not give notification of non-renewal.
9. Consideration
9.1 Royalties. STAR shall pay COOL a royalty on Licensed
Products sold during the term of this Agreement (the
"Royalties") in U.S. dollars equal to the result obtained by
multiplying:
(x) ** percent (**%) by (y) Net Receipts.
Net Receipts is defined as gross revenues received for the
sale of Licensed Products less credits for documented
returns.
9.2 Reporting and Payment. Within sixty (60) days after the
beginning of each calendar quarter, STAR shall calculate and
pay to COOL the Royalties that are due on Net Receipts
received during the just-concluded calendar quarter;
provided, however, that upon termination of this Agreement
for any reason, a final payment of Royalties accounting for
Net Receipts through the date of termination shall be made
within ninety (90) days after termination of this Agreement.
Payments of the Royalties shall be accompanied by a report
showing in reasonable detail an accounting of the Royalties
paid.
9.3 Audit. Licensor shall have the right to audit the books and
records of Licensee in order to verify the accuracy of all
royalty reports and payments made at least once every
calendar year under this Agreement. The audit shall be
conducted during normal business hours by a certified public
accountant of Licensor's choice and at Licensor's expense.
Licensee shall cooperate and provide reasonable access to
its books and records for purposes of conducting the audit.
10. Representations and Warranties
10.1 COOL represents and warrants to STAR that:
a. COOL is the sole owner of all rights, title and
interest in and to the Trademarks;
b. COOL has not assigned, transferred, licensed, pledged
or otherwise encumbered any of the Trademarks, or
agreed to do so;
c. COOL has full power and authority to enter into this
Agreement and to make the assignments as provided for
herein; and
d. To the best of COOL's knowledge, there are no
violations, infringements or misappropriations of any
third party's rights (or any claim thereof) by the
Trademarks.
11. Confidential Information
Any reports submitted by STAR to COOL pursuant to this Agreement
shall be confidential information of STAR and shall be held by
COOL in confidence during the term of this Agreement and for
three (3) years after its termination for any reason. No other
information exchanged between the parties pursuant to this
Agreement shall be deemed confidential; provided, however, that
the foregoing shall not limit, restrict, amend, waive or
otherwise modify any Party's confidentiality obligations pursuant
to any other written agreement between the Parties.
12. Trademark Prosecution
12.1 The parties agree that STAR has the sole and exclusive right
to prosecute any and all Trademark applications and foreign
equivalents of the Trademarks in the U.S. and foreign
countries. COOL will cooperate with STAR in obtaining such
Trademark rights and STAR will pay all reasonable expenses.
12.2 STAR agrees to ▇▇▇▇ (and require its sublicensees to ▇▇▇▇)
any product that it manufactures or sells with a trademark
notice in accordance with applicable trademark law and to
display such trademark notice that it makes available.
13. Legal Actions
13.1 STAR shall, at its sole discretion, pursue or defend
any legal action brought in connection with the subject
matter of this Agreement. In the event STAR does not
exercise its right to pursue or defend any legal action,
Licensor may pursue or defend that action on its own and in
its own name. In any legal suit or dispute, COOL and STAR
agree to cooperate fully with each other. At the request and
expense of STAR or COOL, COOL or STAR will provide access to
all relevant personnel, records, papers, information,
samples, specimens, etc., during regular business hours.
13.2 COOL and STAR shall promptly report in writing to STAR
or COOL any:
a. known infringement or suspected infringement of any of
the Trademarks, or
b. known unauthorized use, infringement, suspected
infringement, duplication, distribution, unauthorized
use or other misappropriation of the Trademarks by a
third party of which it becomes aware, and shall
provide STAR with any available evidence supporting
said infringement, suspected infringement, duplication,
distribution, unauthorized use or other
misappropriation.
14. General
14.1 This Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois without
reference to the choice of law principles thereof. Any
dispute arising under this Agreement shall be definitively
and finally resolved by arbitration and judgment upon any
award of arbitration may be entered in any court having
jurisdiction thereof. Such arbitration shall be held in
Illinois and be in accordance with the rules of the American
Arbitration Association. Any fees and expenses payable to
the American Arbitration Association shall be borne by the
losing party.
14.2 This Agreement may be assigned or transferred by STAR
(by contract, by sale of stock or assets of STAR, or by
merger or consolidation or any other legal means). STAR
shall require, as term of any such transaction, that the
contracting party, assignee or purchaser of the stock or
assets, agree in writing to perform STAR's obligations under
this Agreement. STAR shall provide COOL with written notice
of any such contract, assignment, sale of stock or assets,
and upon request from COOL a copy of the provisions of any
agreement acknowledging the assignee/purchaser's obligations
hereunder.
14.3 If STAR is unable after reasonable efforts to secure
COOL's signature to any document it is entitled to under
this Agreement, COOL hereby irrevocably designates and
appoints STAR and its duly authorized officers and agents,
as its agents and attorneys-in-fact with full power of
substitution to act for and on its behalf and instead of
COOL, to execute and file any such document or documents and
to do all other lawfully permitted acts to further the
purposes of the foregoing with the same legal force and
effect as if executed by COOL.
14.4 If any provision of this Agreement is or becomes
illegal, invalid or unenforceable in any respect under the
law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof nor the
legality, validity, or enforceability of such provision
under the law of any other jurisdiction shall in any way be
affected or impaired thereby, and the remainder of the
provisions of this Agreement shall remain in full force and
effect. The parties shall endeavor in good faith
negotiations to replace any illegal, invalid or
unenforceable provision with a valid, legal and enforceable
provision, the economic effect of which comes as close as
possible to the illegal, invalid or unenforceable provision.
14.5 The terms of this Agreement are confidential and no
press release or other written or oral disclosure of any
nature regarding the terms of this Agreement shall be made
by COOL without STAR's prior written approval; however,
approval for such disclosure shall be deemed given to the
extent such disclosure is required to comply with
governmental regulation. Nothing in this paragraph is
intended to limit STAR from issuing a press release
regarding this Agreement.
14.6 This Agreement may not be modified or amended except by
an instrument or instruments in writing signed by the party
(or such party's duly authorized agent) against whom
enforcement of any such modification or amendment is sought.
Either party may, only by an instrument in writing, waive
compliance by the other party regarding any term or
provision of this Agreement. The waiver by a party of a
breach of any term or provision of this Agreement shall not
be construed as a waiver of any subsequent breach.
14.7 The parties are independent contractors. Nothing stated
in this Agreement shall be deemed to create the relationship
of partners, joint venturers, employee-employer or
franchiser-franchisee between the parties hereto.
14.8 This Agreement may be executed in counterparts, all of
which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have
been signed by each party and delivered to the other party.
14.9 This Agreement, and the Exhibits thereto, contains the
entire agreement between the parties with respect to the
subject matter hereof, and there are no agreements or
understandings between the parties as to this subject matter
other than those set forth or referred to herein or therein.
IN WITNESS WHEREOF, parties hereto have caused their duly
authorized representatives to execute this Agreement on the date
set forth below.
COOL LUC, L.L.C., STAR BEVERAGE, INC.,
an Illinois limited liability company a Nevada corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Chairman
Date: 11/01/02 Date: 10//24/02
EXHIBIT A
Property:
Copyright Reg. No. Name
VA 999-786 Cool Luc Spring Water, 1L
VA 999-785 Cool Luc Spring Water, 0.5L
VA 999-787 Cool Luc Spring Water, 20 oz.
Registered Trademarks:
U.S. Trademark Reg. No. 2437013
▇▇▇▇: Cool Luc
Registered: March 20, 2001
Canadian Trademark Serial No. 1137969
▇▇▇▇: Cool Luc
Filed: April 19, 2002