INTERNATIONAL LICENSING AND CONSULTING AGREEMENT
This International Licensing Agreement (hereinafter called
"Agreement') is entered into and made as of the date last written
herein between KENMAR Company Trust (hereinafter called "KENMAR")
and AimRite Holdings Corporation (hereinafter called "AimRite
Holdings") and also hereinafter individually referred to as
"party" or "Party" or collectively referred to as the parties" or
"Parties" is made with reference to the following facts:
WHEREAS both KENMAR and AimRite Holdings believe that their
combined efforts in the development, production and sale of a
Computer Optimized Adaptive Suspension Technology including the
Setflex Air Suspension System based on certain proprietary
information, suspension technology, confidential information,
trade secrets, documentation, copyrights, trademarks, tradenames,
documentation, patents and pending patents held by KENMAR would
be in the best interests of both Parties; and
WHEREAS AimRite Holdings is desirous of utilizing the
services of certain consultants who are under contract to KENMAR
in order to assist it in the fulfillment of its obligations under
this agreement.
IT IS THEREFORE AGREED AS FOLLOWS:
1. Definitions
a. The Suspension Technology The term "The Suspension
Technology" as used herein shall mean the hardware designs,
control algorithms, proprietary information, inventions
(patentable or unpatentable), ideas, methods, data, trade
secrets, confidential information, copyrights, trademarks,
tradenames, patents and patents pending owned by or which are or
hereafter owned, developed or obtained by KENMAR and/or its
consultants relating to the following patents: #4,722,548,
#4,634,142, #4,651,838, #4,677,263 #5,529,152 and any subsequent
patents or patents pending derived therefrom.
b. Customer The term "customer" shall mean those third parties,
whether individual, corporate or otherwise that purchase any
product manufactured by AimRite Holdings using the technology
either directly, through an OEM Agreement or sublicense.
c. Price. The term " Price" shall mean the price charged by
AimRite Holdings for the products manufactured or caused to be
manufactured, distributed or sold by it using the technology
under this agreement, sublicense or any O.E.M. agreement.
d. Sale. The term "sale" as used herein shall mean any contract
or agreement, written, electronic or oral by which a customer
obtains the possession or use of a product manufactured by
AimRite Holdings using the suspension technology licensed herein.
This term shall include any payments received by AimRite on
account of any O.E.M. agreements and/or sublicenses:
e. Original Equipment Manufacturer's Agreements. The term
"Original Equipment Manufacturer's Agreements" or O.E.M.
Agreements means those agreements entered into from time to time
by AimRite Holdings which allow AimRite Holdings to offer the
products using the technology for manufacture, distribution and
sale to customers as part of a package at a price which is
competitive to that offered through AimRite Holdings' own
distribution network.
f. Trademark. The term "trademark" shall mean the acronym
"COAST" the words "SETFLEX" , Setflex Air Suspension and any and
all symbols, stylized logos, trademarks, trade names, slogans or
service marks whether or not copyrighted, service marked or
trademarked, of any kind associated with the suspension
technology, including but not limited to the term "Computer
Optimized Adaptive Suspension Technology" from which the acronym
is derived and any and all other such trademarks, as defined
herein, which are developed by KENMAR and/or its consultants.
g. Confidential Information. The term "confidential
information" shall mean all information obtained by or provided
to AimRite Holdings by KENMAR and/ or its consultants during the
course of this agreement with relation to the development and
sale of the suspension technology.
2. Grant of License
a. KENMAR hereby appoints AimRite Holdings as its non-exclusive
master licensee for the manufacture, sales and distribution of
products derived from the suspension technology for the entire
world subject to its faithful performance of the terms of this
agreement. AimRite Holdings understands and agrees that no
exclusive license is created or intended by this agreement and
that KENMAR has the right to engage in similar agreements with
other master licensees for the same geographical area which may
be contemplated by the parties to this agreement as well as make
direct sales of products derived from the suspension technology.
b. Original Equipment Manufacturers Agreements and Sublicenses.
AimRite Holdings is authorized to enter into O.E.M. Agreements
and sublicenses with customers, if necessary to facilitate the
performance of its duties under this agreement. Such sublicenses,
shall be subject to the approval of KENMAR.
c. Use of Name During the term of this agreement, AimRite
Holdings shall be authorized to use the trademarks, as defined in
this agreement in its advertising and sales material subject to
the approval of KENMAR. The parties agree that KENMAR owns all
the rights to the trademarks and any derivatives thereof
throughout the world..
d. Direct Sales by KENMAR. KENMAR retains the right to make
direct sales to customers, including multi-national corporations,
governmental agencies and governments whom it has directly
contacted at such prices and under such circumstances as it, in
its sole discretion, shall deem to be in the best interests of
KENMAR.
3. Payment
a. Payment Amount. For the grant of the licensing rights herein
AimRite Holdings shall transfer to KENMAR within 10 days of the
signing of this agreement one million seven hundred thousand
(1,700,000) shares of stock in AimRite Systems International and
two million (2,000,000) shares of stock in AimRite Holdings. As
and for further consideration for the grant of the license
herein, for each sale as defined in Paragraph I (d) herein,
KENMAR shall be entitled to receive eight percent (8%) of the
AimRite Holdings price as defined in Paragraph I (c).
b. Sales Tax AimRite Holdings shall be responsible for the
collection and payment of any applicable sales tax.
c. Remittance of funds All payments received from the sales
shall be remitted to KENMAR or the assignees named in Paragraph
3(g) hereof within 30 days of the receipt of funds from the
customer by AimRite Holdings. This right to payment shall survive
the termination of this agreement.
d. Payment for Underpayment Any payment found to be due to
KENMAR and/or the assignees named in Paragraph 3(g) hereof
pursuant to any review or audit conducted pursuant to Paragraphs
4 (d) shall be paid immediately by AimRite Holdings plus ten per
cent (10%) per annum from the date such payment was due.
e. No Offsets All sums payable by one party to the other or the
assignees named in Paragraph 3(g) under the terms of this
agreement shall be paid without offsets, setoff; or adjustments
of any kind.
f. Past Due Payments Any past due payments owing from one party
to the other or the assignees named in Paragraph 3(g) hereof
shall accrue interest at the rate of ten percent per annum until
paid.
g. Assignment KENMAR hereby irrevocably assigns two percent
(2%) of the total payments due to it under Paragraph 3 (a) hereof
to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇. KENMAR further hereby irrevocably assigns two
percent (2%) of the total payments due to it under Paragraph 3(a)
hereof to ▇▇▇▇▇▇ ▇▇▇▇▇. It is the intent of this paragraph that
the payments due to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ pursuant to
this assignment shall be calculated in the same manner as the
payments due KENMAR under Paragraph 3 (a) and thereafter applied
as a reduction of the amount due KENMAR by AimRite Holdings so
that the amounts due ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ are based on
the term "sale" as defined in Paragraph l(d). It is the intent of
this calculation that KENMAR receive a net of four percent (4%)
and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ two percent (2%) each out of
the total of the eight percent (8%) called for in Paragraph 3(a).
h. Consultants AimRite Holdings shall pay to KENMAR a monthly
consulting fee plus costs for the use of consulting services of
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or for such other or additional
consultants as KENMAR shall, in its sole and absolute discretion,
deem necessary and appropriate to assist AimRite Holdings in the
fulfillment of its obligations under Paragraph 4 hereof as set
forth in paragraph 5 hereof. AimRite Holdings agrees to pay for
such costs and services as billed for by KENMAR.
4. Obligations of AimRite Holdings
a. Manufacturing, Distributing and Sales. AimRite Holdings
shall diligently work to develop, manufacture, distribute and
sell products based the technology.
b. Distributorships and Manufacturing Sublicenses. AimRite
Holdings shall exercise its best efforts, if it deems necessary
and appropriate, to seek and obtain agreements, including
sublicenses, for the manufacture, distribution and sale of
products based on the technology. Such agreements are subject to
the review and approval of KENMAR.
c. Authority AimRite shall have no right, power or authority to
bind KENMAR to any agreement without the written consent of and
acceptance by KENMAR.
d. Supervision and Marketing. AimRite Holdings shall diligently
supervise and monitor the performance of all sublicensees and
distributors who are parties to agreements obtained by it for the
manufacture and/or distribution of products based on the
suspension technology. Other duties shall include, but not be
limited, to:
(i) Providing regular updates to KENMAR of the significant sales
and accomplishments of AimRite Holdings with reference to the
development, manufacturing and sales of the suspension
technology.
(ii) Receiving and responding to all support related questions
regarding the suspension technology from customers.
e. Records. Maintain full, clear and accurate records with
respect to all sales and make such records available at AimRite
Holdings' cost to KENMAR and/or those parties to whom KENMAR has
assigned part of the royalty payable hereunder pursuant to
Paragraph 3(g), upon reasonable request but not later than one
week after such request, at the offices of KENMAR. AimRite
Holdings further agrees to allow such auditors and accountants as
may be employed by KENMAR and/or those parties to whom KENMAR has
assigned part of the royalty payable hereunder pursuant to
Paragraph 3(g) access to its books and records relating to sales
as defined in this Agreement. If the amount found due and owing
to KENMAR under this Agreement is more than 25% of the actual
amount paid, then AimRite Holdings shall pay KENMAR's actual
costs in performing the review of the records, including but not
limited to, such professional fees and costs as are incurred by
KENMAR..
f. Reports AimRite Holdings shall provide a quarterly marketing
report for KENMAR describing AimRite Holdings' activities during
the prior period with reference to the fulfillment of its
obligations under this agreement.
g. Payment to Assignees AimRite Holdings shall pay the sums
which have been assigned to ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
pursuant to Paragraph 3(g ) of this agreement directly to those
individuals named therein and provide a report thereof to KENMAR.
It is specifically agreed that ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇
are intended third-party beneficiaries of this agreement to the
extent of the assignments set forth in Paragraph 3(g) and, to
that extent, may enforce those rights directly against AimRite
Holdings.
h. No Modification or Reverse Engineering. AimRite Holdings
will not modify, reverse engineer, decompile or enhance the
software associated with the suspension technology without
KENMAR's prior written consent. KENMAR shall own all proprietary
rights in any such modifications or enhancements and AimRite
Holdings hereby transfers and assigns all proprietary rights,
including patent, copyright and trade secret rights to any such
modifications or enhancements to KENMAR.
i. Copyright and Patent Notice AimRite Holdings agrees to place
a copyright, trademark and patent notices identifying KENMAR as
the copyright, trademark and/or patent owner on such copies of
the suspension technology where such notice does not already
appear. Such notices shall also appear in any of AimRite
Holdings' advertisements and promotional material.
5. Obligations of KENNLAR
a. Consulting Services KENMAR shall provide the services of
such consultants as agreed upon herein to assist AimRite Holdings
in the fulfillment of its obligations under Paragraph 4 hereof
and as follows. The payment for such consultants is set forth in
Paragraph 3(h). KENMAR will, at the request of AimRite Holdings,
provide its consultants to reasonably personally assist in the
closing of major potential sales by distributors. Reasonable
personal assistance shall include reasonable telephonic support
from the United States. In the event KENMAR shall send a
consultant traveling for the purpose of assistance to AimRite
Holdings under the terms of this agreement AimRite Holdings shall
provide transportation, meals and lodging for the consultant. All
transportation costs shall be paid by AimRite Holdings in
advance.
b. Right of First Refusal In the event that KENMAR or its
consultants shall develop new or additional technology based on
or related to the suspension technology licensed herein, KENMAR
shall first offer such new or additional technology to AimRite
Holdings under the same terms and conditions of this agreement so
long as AimRite is, in the sole and absolute opinion of KENMAR,
in compliance with the terms of this agreement.
6. Non-Circumvention
Both Parties agree that, during the term of this agreement
and thereafter, that neither party will, either directly or
indirectly, entertain, engage or participate in any activity
designed to circumvent the terms of this agreement or the rights
accruing to the parties after termination of this agreement by
engaging in dealings or conduct the object of which would be to
deprive either party of their expectations under this Agreement.
Neither party shall directly or indirectly, entertain, engage or
participate in any attempt by any heir, successors, assign of
any' entity to circumvent this agreement nor shall any party to
this Agreement engage in the dealings prohibited by this
paragraph with any entity known or suspected by either party to
have been established for the purpose of circumventing the
Agreement. This Paragraph shall not apply if KENMAR exercises its
rights under Paragraphs 2(a) and 2(d) if this agreement.
7. Termination
a. In General. This agreement is deemed to have commenced on
the date this agreement is signed and shall remain in effect
thereafter for twenty years from the date of the first sale of
the suspension technology or the term of the last to expire of
any patents or pending patent rights licensed to AimRite Holdings
under this agreement or pursuant to the exercise of any right of
first refusal provided for this agreement, whichever is longer.
Either party may terminate this agreement within thirty (30) days
prior written notice based on any of the following:
(i) The other party's failure to comply with any term or
obligation set forth in this agreement within thirty (30) days
after written notification of such failure.
(ii) Mutual agreement of the parties.
b. Rights and Duties Upon Termination. In the event of
termination of this agreement both parties and the assignees
named in Paragraph 3(g) shall have the rights and obligations set
forth in Paragraphs 2 and 3 of this Agreement until such time as
the last unit of the suspension technology licensed hereunder is
sold by either AimRite Holdings directly, under any O.E.M.
agreement or a sublicense. Payments to KENMAR for the services of
consultants pursuant to Paragraph 3(h) shall be immediately due
and payable. AimRite Holdings shall immediately return all
confidential information to KENMAR. The provisions of Paragraph
4(h) shall also survive the termination of this agreement.
8. Relationship of the Parties
Neither AimRite Holdings nor KENMAR (including its
consultants) are authorized to obligate the other party other
than as stated in this Agreement. This Agreement does not create
a joint venture, partnership or association. The relationship of
the parties shall be as principal to principal. AimRite Holdings
shall not obtain or claim any right, title or interest in any
work product, patent, pending patent, writings, ideas or concepts
either written, electronic or oral from any consultant
contractually obligated to KENMAR who services are provided to
AimRite Holdings under this agreement and specifically
acknowledges that all such work product, patent, pending patent,
writings, ideas or concepts either written, electronic or oral
are the exclusive property of KENMAR.
9. Indemnification
a. By KENM4R . KENMAR shall indemnify and hold harmless AimRite
Holdings against any and all liability, suits, claims. losses,
damages and judgments, and shall pay all costs (including
reasonable attorneys fees) and damages to the extent that such
liability, costs or damages arise from a claim that the
suspension technology infringes on any third party's United
States patent or copyright. KENMAR may, at its option, defend or
settle such action, or any part thereof brought against AimRite
Holdings arising from a claim that such infringement, as
described herein, has occurred. KENMAR's obligations under this
section are conditioned on being given (i) Prompt notice in
writing of such claim by AimRite Holdings and (ii) the right to
control and direct the investigation, defense and settlement of
each such claim. The provisions of this section shall survive any
termination of this agreement
b. By AimRite Holdings. AimRite Holdings shall indemnify and
hold harmless KENMAR against any and all liability, suits,
claims. losses, damages and judgments, and shall pay all costs
(including reasonable attorneys fees) and damages to the extent
that such liability, costs or damages arise from a claim that the
suspension technology was the proximate result of any non-patent
infringement damages by any third party. AimRite Holdings may, at
its option, defend or settle such action, or any part thereof
brought against KENMAR arising from that a claim for damages, as
described herein, has occurred. AimRite Holdings' obligations
under this section are conditioned on being given (i) Prompt
notice in writing of such claim by KENMAR and (ii) the right to
control and direct the investigation, defense and settlement of
each such claim. The provisions of this section shall survive any
termination of this agreement.
10. General Provisions
a. Assignment. Neither KENMAR nor AimRite Holdings Owner will
assign any of the rights or obligations under this agreement
without the prior written consent of the other party.
b. Notices All notices under this agreement to be sent by
certified mail, return receipt requested, to the address below or
to any other address to which the parties may, from time top
time, designate:
KENMAR:
AimRite Holdings:
c. Integration and Amendment This written Agreement sets forth
the entire understanding of the parties with respect to the
subject matter of this Agreement and supersedes all prior
agreements, understandings and negotiations with respect to the
subject matter hereof. Neither party to this Agreement (nor its
officers, agents, employees, representatives or attorneys of or
for any party) has made any statement or representation to any
other party regarding any fact relied upon in this Agreement, and
each party does not rely on any statement, representation or
promise of any other party (or any officer, agent employee,
representative or attorney for the other party) in executing this
Agreement except as expressly stated in this Agreement. Any
amendments to this Agreement must be in writing and signed by
both parties.
d. Investigation Each party to this Agreement has made such
investigation of the facts pertaining to this Agreement and all
the matters pertaining thereto as it deems necessary.
e. Review and Ratification Each party or responsible officer
thereof has read this Agreement, including each and every
provision thereof, and understands the contents thereof Each
party represents that the shareholders of each party has
consented either in writing or at a meeting of shareholders duly
held, to the transactions contemplated hereby.
f. Construction Each party has cooperated in the drafting and
preparation of this Agreement. Hence, in any construction to be
made of this Agreement, the same shall not be construed against
any party.
g. Terms Each term of this Agreement is contractual and not
merely a recital.
h. Legal Advice Each Party has received independent legal
advice from its respective attorneys with regard to the making of
this Agreement and each and every term hereof
i. Consideration Both parties acknowledge that they have
received equal, valuable and legally sufficient consideration in
return for the obligations and benefits given under this
Agreement.
j. Governing Law This Agreement shall be deemed to have been
executed and delivered in the State of Nevada and shall be
governed by and interpreted with the Laws of the State of Nevada
except those laws relating to choice of law. The parties hereby
agree that any dispute regarding the interpretation or validity
of this Agreement will be subject to the exclusive jurisdiction
of the Nevada State Courts in and for ▇▇▇▇▇ County, Nevada and to
the personal and exclusive jurisdiction and venue of this court.
The parties agree that the prevailing side in any such dispute
shall be entitled to reasonable attorney's fees in enforcing this
Agreement.
k. Waiver. Failure by either party to enforce, at any time or
for any period of time any of the provisions of this agreement
shall not be construed as a waiver of such provisions and shall
in no way effect a party's right to later enforce such
provisions.
l. Severability. If any part of this Agreement is determined by
any court or tribunal of competent jurisdiction to be wholly or
partially unenforceable for any reason, such unenforceability
shall not affect any other part of this agreement.
m. Remedies. All rights conferred under this Agreement or by
any other instrument or law shall be cumulative and may be
exercised singularly or concurrently. Each party agree that any
breach of this agreement would cause irreparable damage to the
other parties to this agreement and that, in the event of such
breach, the remaining party to this agreement shall have, in
addition to any and all remedies at law, the right to an
injunction, specific performance or such other equitable relief
to prevent the violation of such party's obligations under this
agreement.
n. Good Faith and Fair Dealing All implied in law covenants of
Good Faith and Fair dealing shall be incorporated by this
reference into this agreement.
o. Future Benefits This Agreement is binding upon and shall
inure to the benefit of the parties, their heirs and successors
in interest whether individual, or corporate.
p. Time. Time is of the essence in this agreement.
q. Execution by Facsimile This Agreement may be executed in
counterparts and by facsimile signature. When each party has
signed and delivered at least one such counterpart, each
counterpart shall be deemed an original and, when taken together
with other signed counterparts, shall constitute one agreement
which shall be binding on all parties. No counterpart shall be
effective until all of the parties here have executed and
exchanged an executed counterpart hereof
AGREED:
KENMAR COMPANY TRUST AIMRITE HOLDINGS
CORPORATION
Dated: Feb 25, 1997 Dated: Feb 25, 1997
By: By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (T) /s/ ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇
Trustee President