Exhibit 10.0
LICENSE AGREEMENT
THIS AGREEMENT made and entered into as of the 14th day of March, 2005, by
and between Venitech, LLC, ▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
("Licensor") and Fresh Ideas Media, Inc. a Nevada corporation, with offices
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇,
("Licensee") (together the "Parties").
W I T N E S SE T H
---------------------
WHEREAS, Licensor has developed a certain Business Concept, ("Business
Concept") under Venitech, LLC, and as a result has developed certain methods of
marketing the Business Concept including, but not limited to methods of selling,
marketing, advertising, art and design concepts, forms, printing, agreements and
other items relating to the Business Concept all herein collectively called
Intellectual Property ("Intellectual Property".)
WHEREAS, Licensor has filed, or will file, for the certain Registered
Trademarks "Community Alliance" and "Our Best Wishes" and certain copyrighted
material, pertaining to the Business Concept (as hereinafter defined) and has
used and currently is using, the Trade ▇▇▇▇(s) and copyrighted materials in
commerce and
WHEREAS, Licensee desires to acquire the exclusive license to use the
registered trademarks of "Community Alliance" and "Our Best Wishes" along with
the Intellectual Property, related Trade Marks, when or if applied for and
received, copyrighted materials and all aspects of the Business Concept
("Licensed Business") in a given territory and Licensor desires to grant to
Licensee the exclusive right to use the registered trademark "Community
Alliance" and "Our Best Wishes" and related Intellectual Property, Trade Marks,
when or if applied for and when received, copyrighted materials and all aspects
of the Business Concept in a given territory, and
Whereas the following definitions shall apply:
"Business Concept" means the overall description of the business created by
the Licensor using the Trade Marks, Copyrighted Materials, Trade Secrets and
Intellectual Property, thus creating a viable business.
"Trademark(s)" "Licensed Marks" and "Copyright(s)" means any work
containing Trade Marks that Licensor has or will apply for pertaining to the
Business Concept, in particular "Community Alliance" and "Our Best Wishes"
and/or copyrightable subject matter that Licensor owns or has the right to
license to others that relates to the Licensed Business, including without
limitation works registered with the Copyright Office of the United States or
any foreign country or works for which an application to register the work with
the Copyright Office of the United States or any foreign country has been filed.
It is understood that Licensor may file for additional Trademarks pertaining to
the Business Concept in the future and that if or when such trademarks are
filed, such trademarks shall be included in the Business Concept and shall
automatically become a part of this Agreement and therefore be licensed to the
licensee.
"Licensed Business" means the business using the Trade Marks, Copyrighted
Materials, and Intellectual Property described herein in the course of business
in the Licensed Territory.
"Intellectual Property" means all of the methods of selling, marketing,
advertising, art and design concepts, forms, printing, agreements, Trade Marks,
copyrighted materials and other items and trade secrets relating to the Business
Concept and improvements made thereto or in the future.
"Advertising Product" means the custom take-home school folder
publications, which are provided to schools as the vehicle to place
advertisements for community businesses, custom greeting cards sent to consumers
allowing advertisements for community businesses and other products developed by
Licensor for advertising purposes.
"Trade Secrets" means all items described under "Intellectual Property"
which shall include all business methods developed by Licensor pertaining to the
Business Concept, including methods of selling, marketing, advertising, art and
design concepts, forms, printing, agreements and other items relating to the
Business Concept, either existing now or developed in the future.
"Know-How" means the methods, skills, procedures, forms, and operations
developed by Licensor as related to the Business Concept including all items
described above under Intellectual Property and Trade Secrets that are known,
possessed and used by Licensor as of the Effective Date of this Agreement and
developed after the date of this Agreement and that relate to Business Concept
and the License granted hereto.
"Marketing Materials" means the documents, forms and literature provided to
Licensee for the purpose of selling advertising to business, contracting with
schools, and other uses relating to the Business Concept.
"Publications and Designs" means folders, greeting cards, and other
publications relating to the Business Concept and all graphic design services
provided by the Licensor to the Licensee in relation to the Publications.
"Territory" means the specific geographic area as described below in
Article 4, under TOTAL TERRITORY.
"Sub-license" means a license granted by the licensee to any person or
company allowing them to use the Business Concept, Trade Secrets, Trade Marks,
Intellectual Property, Know-How, Marketing Materials, Publications and Designs
in a given territory, under the terms and as described in this Agreement.
"Sub-license Territory" means any specifically defined area that Licensee
determines is suitable for a territory to be sold to a Sub-licnese.
"Subsidiary" means any corporation or other entity which is 100% directly
or indirectly owned by Licensee.
"Affiliate" means any corporation or other entity which is at least 50%
owned by Licensee.
"Annual Period" means each twelve (12) month period commencing on the
signing of this Agreement and each 12 month period thereafter. Each 12 month
period from the date of this Agreement shall constitute and be referred to
herein as an "Annual Period".
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto covenant and agree as follows:
ARTICLE 1
GRANT OF LICENSE
Upon the terms and conditions of this Agreement, Licensor hereby grants to
Licensee, during the term of this Agreement, and in the territory described
below, the sole and exclusive right and license to use and develop the Business
Concept, including Copyrights, Trade Marks, if and when applied for by Licensor,
Intellectual Property and Know-how, in connection with developing and operating
the Business Concept in the Territory and on all brand identifications,
promotional material, publicity, sales, advertising, newspaper, magazine, and
similar media presently existing or that may exist in the future, in connection
solely with the creation, introduction, marketing, distribution, sale and
advertising of the Business Concept.
ARTICLE 2
LICENSE FEE
For the grant of the License and the use of the Intellectual Property,
Trade Marks, Copyrighted Material, Business Concept and Know-How as described
herein, and the Territory as described herein, Licensee agrees to pay to
Licensor a License fee of Thirty Thousand Dollars ($30,000.00). The amount of
$30,000 shall be paid as follows: Ten Thousand Dollars ($10,000.00) to be paid
on or before 120 days of the signing of this Agreement. In addition, Venitech,
LLC shall receive thirty percent (30%) of every "Sub-license" fee received by
Fresh Ideas Media, Inc. from every "Sub-license" sold until the total amount of
thirty thousand ($30,000.00) is paid in full. Thereafter, Venitech, LLC shall
receive an amount of Twenty Percent (20%) of every "Sub-license" sold by Fresh
Ideas Media, Inc. Payments shall be made to Venitech, LLC by Fresh Ideas Media,
Inc. within 10 days from the time that any payment has been received from a
Licensee as payment toward the License purchased by that Licensee.
All payments to be paid to Licensor pursuant to this Agreement shall be
sent or delivered to Licensor at its notice address as hereinafter specified and
shall be in United States currency. Any payment not mailed by certified mail by
licensee or otherwise delivered to licensor on or before the date by which that
payment is to be paid shall be delinquent and overdue and shall be cause to
revoke this Agreement under terms described herein.
ARTICLE 3
TOTAL TERRITORY
The TOTAL TERRITORY granted to the Licensee by the Licensor by this
Agreement shall be the entire United States, with the exception of the states of
Colorado, Texas, Florida, Nebraska and Oklahoma. It is expressly understood and
agreed by the parties that the Licensee will not, at any time, allow the
Business Concept or any part of the Business Concept, to be used in the above 5
states, whether by the Licensee, any affiliate or subsidiary or by any
Sub-licensee. Any use of the Business Concept or any part of the Business
Concept in the above 5 states, by the Licensee, any affiliate or subsidiary of
the Licensee or any Sub-licensee of the Licensee shall make this Agreement null
and void and the Licensor shall have the right to cancel this Agreement and take
over the entire territory granted by this Agreement.
ARTICLE 4
DEFINED SUB-LICENSE TERRITORIES
Licensor and Licensee has defined a possible minimum of 98 defined
Sub-licensee Territories within the Total Territory granted to Licensee.
However, it is understood that the proposed License Territories are simply
proposed and may change. The Sub-license Territories shall be defined at the
total discretion of the Licensee.
ARTICLE 5
GRANTING OF SUB-LICENSE
Licensee may, during the term of this Agreement, grant to third party,
whether an individual or a company, the rights to the Business Concept,
including the use of the Intellectual Property, Trade Marks, Copyrighted
Material, Business Concept and Know-How as described herein, in a given
territory, providing that the Sub-licensee abides by the terms of the
Sub-license Agreement provided by the Licensee to the Sub-licensee and that the
Sub-licensee does nothing contrary to the terms of this Agreement.
Any Sub-license granted by the Licensee shall not conflict in any way with
this Agreement. A suitable Sub-license Agreement to be used by the Licensee
shall be presented to the Licensor for approval by Licensor.
The Licensed Marks, either applied for or to be applied for by Licensor of
"Community Alliance" and "Our Best Wishes" or any derivatives thereof may not be
used in any way other than as described in this Agreement and any Sub-license
Agreement as agreed to by the Licensor. Licensee is not entitled to create,
reproduce, publish, sell, distribute, transmit, download or otherwise use any
"Electronic Media" containing the "Licensed Marks", or to license any party to
do any of the foregoing, except solely under a Sub-license as agreed to by
Licensor. "Electronic Media" includes, but is not limited to, all forms of
electronic, magnetic, digital, optical and laser-based information storage and
retrieval systems, floppy diskette-based software, CD-ROM, interactive software
and compact discs, ROM Card, silicon chip, on-line electronic or satellite-based
data transmission and other such systems, and any other device or medium for
electronic reproduction, publication, distribution or transmission, whether now
or hereafter known or developed, without the express written consent of the
Licensor.
ARTICLE 6
MINIMUM PROFORMANCE BY LICENSEE
It is hereby understood and agreed that the minimum number of Sub-licensee
Agreements that the Licensee is obligated to sell within the first twelve (12)
month period starting at the signing of this Agreement shall be three (3). If a
minimum of three Sub-licensee Agreements are not sold by the Licensee during the
12 month period, Licensor, at their option, may consider this Agreement null and
void and will have the right to sell a License in all or any part of the
Territory. Thereafter, for any 12 month period, the Licensor agrees to sell a
minimum of four (4) Sub-licenses.
ARTICLE 7
EXCLUSIVITY OF LICENSE
Licensor will not grant any other license effective during the term of this
Agreement for the use of the Business Concept or any part thereof to any other
individual or company, in the Territory granted under this license, so long as
this Agreement is in place and has not been breeched by the Licensee. Licensor
may use or grant others the right to use the Business Concept and anything
pertaining thereto, in the states of Colorado, Texas, Florida, Nebraska and
Oklahoma.
ARTICLE 8
TERM OF THE AGREEMENT
Subject to the rights of termination set forth in this Agreement, the
initial term of this agreement shall commence on the date hereof and shall
terminate on May 15, 2010. Licensee shall have the right to renew this Agreement
for an additional three-year period provided:
A. Guaranteed Minimum sales of Sub-license Agreements are sold as
per Article 6 of this Agreement.
B. All fees which are due and payable by the Licensee to the
Licensor are paid as per the terms of this Agreement.
C. Licensee is not otherwise in default hereunder;
D. Licensee gives Licensor notice in writing of its intent to renew
no later than January 15, 2010.
ARTICLE 9
CONFIDENTIALITY
The Parties acknowledge that all non-public information relating to the
business and operations of Licensor and Licensee which they learn or have
learned from the other during or prior to the term of this Agreement is
confidential. The Parties acknowledge the need to preserve the confidentiality
and secrecy of such information and agree that, both during the term of this
Agreement and after the expiration or termination hereof, they shall not use or
disclose same, and shall take all reasonable steps to preserve in all respects
such confidentiality and secrecy, it being understood that a Party shall have
complied with the foregoing obligation if such Party understands at least the
same measures and precautions it uses to safeguard its own confidential
information. The provisions of this paragraph shall not apply with respect to:
A. any information that is granted to a Sub-licensee under a
Sub-licensee Agreement and is a part of the Business Concept as
described herein.
B. any information that is generally available to the public other
than as a result of disclosure in violation of the foregoing;
C. any information that is known to Licensor prior to disclosure by
Licensee or independently developed by Licensor;
D. any otherwise confidential information that is disclosed to
Licensor by a third party and such disclosure by the third party
is not, to the best knowledge of Licensor, in violation of any
confidentiality agreement of that party to Licensee; or
E. information that is required to be disclosed by judicial or
administrative order or required to be disclosed to enforce the
terms and conditions hereof.
The provisions of this paragraph shall survive the expiration or termination of
this Agreement.
ARTICLE 10
DUTIES OF LICENSEE
Best Efforts. During the term of this Agreement, Licensee will use its best
efforts to exploit the rights herein granted throughout the Territory and
develop the Business Concept in each state granted under this Licensee
Agreement, and/or sub-license the Business Concept in every state granted under
this License Agreement.
Licensee shall use the "Licensed Marks" if or when applied for and
received, and conduct its business under the "Licensed Marks" in a manner
designed to enhance the reputation and integrity of the "Licensed Marks" and the
goodwill associated therewith.
Licensee shall not take any action that in any way might tend to diminish
or disparage the value, goodwill, or reputation of the Business Concept,
"Licensed Marks" or Licensor.
Licensee shall be solely responsible for ensuring that all uses of the
Business Concept or any part thereof, including the "Licensed Marks" by any of
Sub-licensee's comply with applicable law.
Licensee and/or any Sub-licensee shall have the responsibility of paying
any city, county state and/or federal taxes which may become due as a result of
their activities relating to this Agreement or any Sub-license Agreement.
ARTICLE 11
DOMAIN NAMES
Licensee shall not register any Domain Names or domain names incorporating
the Business Concept or the "Licensed Marks", or any name or ▇▇▇▇ similar to the
"Licensed Marks", with any domain name registrar, without the express written
consent of the Licensor.
ARTICLE 12
INDEMNIFICATION
A. Licensee agrees to defend, indemnify and hold harmless Licensor, its
principals, directors, officers, employees, and/or agents from and against any
and all liabilities, penalties, claims, demands, suits, and causes of action of
any nature whatsoever, whether groundless or otherwise, and any and all damages,
costs, and expenses sustained or incurred (including cost of defense,
settlement, and reasonable attorneys' fees), asserted by or on behalf of any
person or entity arising out of the production, marketing, distribution, use,
offer for sale, or sale of any Products and/or products and materials under the
Intellectual Property by Licensee or under this Agreement, or out of any breach
of representation or warranty by Licensee, or out of the negligent acts or
omissions or Licensee, its agents, representatives, and/or employees in
connection with the production, manufacture, distribution, use, offer for sale,
or sale of any Product and/or products and materials under the Intellectual
Property by Licensee or under this Agreement. Further, Licensee must defend any
such actions with counsel of its own choosing. The provisions of this paragraph
and Licensee's obligations hereunder shall survive the expiration or termination
of this Agreement.
B. Licensor agrees to defend, indemnify and hold harmless Licensee, its
principals, directors, officers, employees, and/or agents from and against any
and all liabilities, penalties, claims, demands, suits, and causes of action of
any nature whatsoever, whether groundless or otherwise, and any and all damages,
costs, and expenses sustained or incurred (including cost of defense, settlement
and reasonable attorneys' fees), asserted by or on behalf of any person or
entity arising out of an allegation of superior rights by a third party in and
to the Business Concept or any part thereof. Further, Licensor may defend any
such actions with counsel of its own choosing, has the right to settle or
compromise any such dispute or action when in its sole judgment settlement or
compromise is warranted, and has the sole right to decide whether to appeal any
adverse decision of a tribunal in any action. The provisions of this paragraph
and Licensee's obligations hereunder shall survive the expiration or termination
of this Agreement.
C. Licensor will give Licensee notice of any action, claim, suit or
proceeding in respect of which indemnification may be sought and Licensee shall
defend such action, claim, suit or proceeding on behalf of Licensor. In the
event appropriate action is not taken by Licensee within thirty (30) days after
its receipt of notice from Licensor, then Licensor shall have the right, but not
the obligation, to defend such action, claim, suit or proceeding. Licensor may,
subject to Licensee's indemnity obligation under subparagraph A above, be
represented by its own counsel in any such action, claim, suit or proceeding. In
any case, the Licensor and the Licensee shall keep each other fully advised of
all developments and shall cooperate fully with each other in all respects in
connection with any such defense as is made. Nothing contained in this paragraph
shall be deemed to limit in any way the indemnification provisions of the
subparagraph A above except that in the event appropriate action is being taken
by Licensee by counsel reasonably acceptable to Licensor, with respect to any
not-trademark or intellectual property, action, claim, suit or proceeding.
Licensor shall not be permitted to seek indemnification from Licensee for
attorneys' fees and expenses incurred without the consent of Licensee. In
connection with the aforesaid actions, claims and proceedings, the parties
shall, where no conflict of interest exists, seek to be represented by common
reasonably acceptable counsel. In connection with actions, claims or proceedings
involving trademark or other intellectual property matters which are subject to
indemnification hereunder, Licensor shall at all times be entitled to be
represented by its own counsel, for whose reasonable fees and disbursements it
shall be entitled to indemnification hereunder.
ARTICLE 13
LICENSED ▇▇▇▇(S), BUSINESS CONCEPT, DOMAIN NAMES
Licensee acknowledges that (i) ▇▇▇▇▇▇▇▇.▇▇ the owner of the Business
Concept, Intellectual Property, "Licensed Marks" pertaining to the Business
Concept, when and if applied for, and Domain names in the Territory, (ii) the
rights of Licensor in the Business Concept, Intellectual Property, "Licensed
Marks" and Domain Names are valid and enforceable. Licensee covenants and agrees
not to challenge Licensors' ownership of the Business Concept, Intellectual
Property, "Licensed Marks", and Domain Name. Licensee shall not attempt to
acquire any ownership rights in the Business Concept, Intellectual Property,
"Licensed Marks" or Domain Names or any other right adverse to Licensors'
interests in the Business Concept, Intellectual Property, "Licensed Marks" or
Domain Names. Nothing herein shall be deemed, intended, or implied to constitute
a sale or assignment of any part of the Business Concept, including the
Intellectual Property, the "Licensed Marks" or Domain Names to Licensee.
Licensee agrees that its use of the Business Concept, Intellectual Property,
"Licensed Marks" or Domain Names under this Agreement shall inure to the benefit
of Licensors, and this Agreement does not confer on Licensee any goodwill or
ownership interest in the "Licensed ▇▇▇▇", other than as implied by this
Agreement. Licensee hereby covenants that it shall not: (i) use the "Licensed
Marks" pertaining to the Business Concept, if and when applied for and received
by Licensor, in any way that may tend to impair their validity as proprietary
Trade Marks or service "Licensed Marks"; (ii) take any action that would
jeopardize or impair Licensor's ownership of the "Licensed Marks" or the
legality and/or enforceability of the "Licensed Marks", or Licensor's right to
use the "Licensed Marks"; (iii) either directly or indirectly, apply for the
registration or renewal of registration of the "Licensed Marks" or any variation
thereon, or any trademark, service ▇▇▇▇, domain name, or other matter which
contains or is similar to, the "Licensed Marks", without the prior written
consent of Licensors; (iv) or attempt to register in any jurisdiction, directly
or indirectly, any trademarks, service marks, domain name, or other matter
containing or similar to any trademarks, service marks, domain name, or name as
to which Licensors or their Affiliates have any registration or proprietary
rights; or (v) sub-license any of the "Licensed Marks", except as permitted by
this Agreement. Licensee shall not join any name or names with the Licensed
▇▇▇▇(s) so as to form a new ▇▇▇▇, unless and until Licensor consents thereto in
writing. Licensee acknowledges the validity of the Licensed ▇▇▇▇(s), the
secondary meaning associated with the Licensed ▇▇▇▇(s), and the rights of
Licensor with respect to the Licensed ▇▇▇▇(s) in the Territory in any form or
embodiment thereof and the goodwill attached or which shall become attached to
the Licensed ▇▇▇▇(s) in connection with the business and goods in relation to
which the same has been, is or shall be used. Sales by Licensee and any
Sub-licensee shall be deemed to have been made by Licensor for purposes of
trademark registration and all uses of the Licensed ▇▇▇▇(s) by Licensee and or
any Sub-licensee shall inure to the benefit of Licensor. Licensee shall not, at
any time, do or suffer to be done, any act or thing which may in any way
adversely affect any rights of Licensor in and to the Licensed ▇▇▇▇(s) or any
registrations thereof or which, directly or indirectly, may reduce the value of
the Licensed ▇▇▇▇(s) or detract from its reputation. Notwithstanding anything to
the contrary contained herein, all uses of the Licensed ▇▇▇▇(s), materials using
or incorporating the Licensed ▇▇▇▇(s) and items used in connection with the
Licensed ▇▇▇▇(s) are subject to Licensor's review and approval.
The "Licensed ▇▇▇▇(s)" may only be used under the License in the same
manner, including in the same style, typeface, and graphic appearance, as
supplied by Licensor. Notwithstanding any other provision of this Agreement,
Licensee may not combine the "Licensed ▇▇▇▇(s)" with any other trademark or
service ▇▇▇▇ (including any logo, design, or symbol), domain name (except for
the Domain Names), name, prefix or suffix, or any other modifying word or term
or matter without Licensors' prior written approval.
Upon the expiration or termination of this Agreement for any reason,
Licensee, except as specified below, will immediately discontinue use of the
Licensed Marks, will not resume the use thereof or adopt any colorable imitation
of the Licensed ▇▇▇▇ or any of its parts.
ARTICLE 14
INFRINGEMENT.
Licensee shall immediately notify Licensor of any unauthorized use and/or
suspected infringement of the Business Concept, Intellectual Property or
Licensed Marks. Such notification on shall include, without limitation,
immediately forwarding to Licensor any and all documents relating to any such
unauthorized use or suspected infringement and providing Licensor with any and
all facts and circumstances relating to such unauthorized use or suspected
infringement. Licensor shall have the primary, and in the first instance sole,
right to institute a suit for infringement, unfair competition, or other action
with respect to any unauthorized use or suspected infringement. Licensor shall
have the sole discretion to determine how to handle or otherwise deal with any
infringement or unauthorized use of the Intellectual Property , including the
right to settle or otherwise compromise any dispute or suit and shall promptly
notify Licensee of its decision. Licensor shall have no duty to initiate such
litigation if in its sole judgment such litigation is not wanted or is not in
its best interests. Licensee agrees that it shall, at all times, reasonably
cooperate with Licensor and its counsel, with respect to any unauthorized use or
suspected or alleged infringements at Licensor's expense, including, but not
limited to, having Licensee's principals, directors, employees, officers, and/or
agents testify, and making available any records, papers, information,
specimens, and the like when requested by Licensor. Licensee may join and be
represented in, at its own expense by its own counsel, any proceeding relating
to any unauthorized use or suspected infringement to prow its own interests. If
Licensor decides in its discretion not to take any action with respect to an
unauthorized use or suspected infringement, then Licensor may, at its own option
and sole expense, take such action on its our behalf as it deems appropriate and
any damages, recovery, settlement, or compromise obtained thereby shah be for
the account of Licensee. Any damages and/or recovery received pursuant to such
litigation or settlement or compromises shall be the sole and exclusive property
of Licensor.
ARTICLE 15
TERMINATION.
If Licensor, on the one hand, or Licensee, on the other, fails to discharge
a material obligation or to correct a material default hereunder, Licensee or
Licensors, respectively, may give written notice to such other Party specifying
the material obligation or material default and indicating an intent to
terminate this Agreement if the material obligation is not discharged or the
material default is not cured. The Party receiving such notice shall have sixty
(60) days from the date of receipt of such notice to discharge such material
obligation or cure such material default. If such material obligation is not
discharged or such material default is not cured by the end of such sixty (60)
day period, the non-defaulting Party may terminate this Agreement immediately by
written notice given at any time after the end of such period; provided that the
material obligation has not been discharged or the material default is
continuing on the date of such termination notice. Licensor shall have the right
to terminate this Agreement upon thirty (60) days written notice to Licensee in
the event that Licensee has not sold a minimum of four Sub-licenses within a 12
month period from the signing of this Agreement and a minimum of eight
Sub-licenses for each 12 month period thereafter, during the life of this
Agreement. Upon the expiration or termination of this Agreement, Licensee will
promptly discontinue any and all use of the Trade ▇▇▇▇, Intellectual Property,
copyrighted materials and all other aspects of the Business Concept. Upon the
expiration or termination of this Agreement, Licensee will, destroy and/or
delete the Intellectual Property from all of Licensee's publications,
stationery, business cards, promotional materials, computer hard-drives, and all
other documents related to the Business Concept. Any amounts paid by the
Licensee up to the termination of the Agreement, for whatever reason, shall be
non-refundable.
ARTICLE 16
RIGHTS ON EXPIRATION OR TERMINATION
A. If this Agreement expires or is terminated for any reason, Licensee
shall cease to use any part of the Business Concept, Intellectual
Property or "Licensed ▇▇▇▇".
B. In the event of termination in accordance with Article 18 above,
Licensee shall pay to Licensor, the Sales Royalty or any other fees
then owed to Licensor pursuant to this Agreement or otherwise.
C. Notwithstanding any termination in accordance with Article 18 above,
Licensor shall have and hereby reserve all rights and remedies which
it has, or which are granted to it by operation of law, to enjoin the
unlawful or unauthorized use of the Business Concept, Intellectual
Property or Licensed ▇▇▇▇, and to collect any amounts due and payable
by Licensee pursuant to this Agreement and to be compensated for
damages for breach of this Agreement.
D. All Sub-Licenses sold will be assigned to the "Licensor".
ARTICLE 17
NOTICES
(A) To be effective, unless otherwise specified in this Agreement, all
notices and demands, consents, and other communications under this Agreement
must be in writing and must be given by (a) depositing the same in the United
States mail, postage prepaid, certified or registered, return receipt requested,
(b) delivering the same in person and receiving a signed receipt therefore, (c)
sending the same by a nationally recognized overnight delivery service, or (d)
telecopy (promptly confirmed by telephone and followed by personal or nationally
recognized overnight delivery). For purposes of notices, demands, consents, and
other communications under this Agreement, the addresses of the Parties (and
their respective counsel
(B) Notices, demands, consents, and other communications mailed in
accordance with the foregoing clause (a) shall be deemed to have been given,
made, and received three (3) Business Days following the date so mailed.
Notices, demands, consents, and other communications given in accordance with
the foregoing clauses (b) and (d) shall be deemed to have been given, made, and
received when sent on a Business Day or, if not a Business Day, then the next
succeeding Business Day. Notices, demands, consents, and other communications
given in accordance with the foregoing clause (c) shall be deemed to have been
given, made, and received when delivered or refused on a Business Day or, if not
a Business Day, then the next succeeding Business Day. Any Party may designate a
different address to which notices or demands shall thereafter be directed and
such designation shall be made by written notice given in the manner hereinabove
required, provided that at all times each Party shall be required to maintain a
notice address in the continental United States.
Notices shall be sent to:
If to Licensor: Venitech, LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
If to Licensee: Fresh Ideas Media, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇-▇▇▇
▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Notice of the change of any such address shall be duly given by either
party to the other in the manner herein provided.
ARTICLE 18
COMPLIANCE WITH LAW
Licensee shall comply in all material respect with all applicable Laws now
and hereinafter enacted in connection with the Business Concept, its use of the
"Licensed Marks", and the performance of its other obligations under this
Agreement.
Licensee, at its sole expense, shall be responsible for obtaining and
maintaining all licenses, permits, and regulatory approvals which are required
by any Governmental Entity with respect to this Agreement and to comply in all
material respect with any requirements of such Governmental Entity. Licensee
shall furnish Licensors with written evidence from such regulatory authorities
of any such licenses, permits, clearances, authorizations, or regulatory
approvals at Licensors' request. Any Sub-license granted by the Licensee,
likewise shall be responsible for obtaining any permits, licenses, or regulatory
approvals, if required, in their respective territory. Licensee shall furnish
Licensors with written evidence from such regulatory authorities of any such
licenses, permits, clearances, authorizations, or regulatory approvals at
Licensors' request.
ARTICLE 19
INTELLECTUAL PROPERTY PROTECTION
Licensee shall, at its own expense, notify Licensors, within ten (10)
Business Days after it becomes aware thereof, of (i) any use, application to
register, or registration of any word, name, phrase, term, logo, or design, or
any combination of any of the foregoing, that might constitute infringement or
other violation of the "Licensed Marks"; or (ii) any claim of any rights in a
▇▇▇▇, or in any confusingly similar ▇▇▇▇, adverse to Licensors' interests in and
to such ▇▇▇▇, or any claim that Licensee's use of a ▇▇▇▇ infringes or otherwise
violates the rights of any other Person.
Licensee agrees, at its own expense and as Licensors may reasonably
request, to (i) cooperate fully with Licensors in the prosecution and
elimination of any infringement or other violation of the "Licensed ▇▇▇▇(s)",
including, but not limited to, joining in a suit or proceeding against a Person
making such infringing or other violating use; and (ii) execute any further
agreements or documents as may become necessary or useful in connection
therewith.
ARTICLE 20
ASSIGNABILITY.
Neither this Agreement nor the license or other rights granted hereunder
may be assigned, sublicensed or transferred by Licensee, whether to a Subsidiary
or Affiliate except as approved by Licensor in advance, in writing, which
approval will not be unreasonably denied. This Article does not apply to the
rights granted to a Sub-licensee by the Licensee, in a particular Territory,
under the terms of a standard sub-license agreement.
Licensor retains the right to assign any and all of its rights and
interests in this Agreement and the Intellectual Property subject to the
limitations set forth herein. This Agreement shall be binding upon any such
assignee as well as upon any successor of Licensor in ownership or control of
the intellectual Property.
Other than the license granted herein, all right, title, and interest in
and to the Intellectual Property is owned and expressly reserved by Licensor for
its own use and benefit subject to the terms and conditions of this Agreement.
Except as relates to the enforcement of any rights granted to Licensee
hereunder, Licensee will not at anytime challenge the validity or enforceability
of the Intellectual Property and/or of any registrations thereof, or challenge
the Licensor's ownership right, tide, or interest in or to the Intellectual
Property or that of any successor, assignee, affiliate, or subsidiary of
Licensor.
ARTICLE 21
REMEDIES FOR BREACH
Licensee acknowledges and agrees that (i) the Business Concept, including
Intellectual Property and Trade ▇▇▇▇ constitute valuable property of Licensors
and have acquired a valuable reputation and goodwill; (ii) violation by Licensee
or its directors, officers, employees, agents, subcontractors, or Sub-licensees
of any provision of this Agreement may cause Licensors irreparable injury not
compensable by money damages for which Licensors may not have an adequate remedy
at law; and (iii) if Licensors institute an action or proceeding to enforce the
provisions of this Agreement and seek injunctive or other equitable relief as
may be necessary to enjoin, prevent, or curtail any breach thereof, threatened
or actual, then Licensors shall not be required to prove irreparable injury, and
shall be entitled to such relief without the posting of any bond or other
security.
ARTICLE 22
RESOLUTION OF DISPUTES
This Agreement shall be governed by and interpreted in accordance with the
laws of the state of Colorado. The parties agree that the procedures set forth
herein shall be the exclusive means for resolving any claim, dispute, or
controversy arising from or relating to this Agreement, whether sounding in
contract, tort, equity, or otherwise, including any dispute over the validity
and/or scope of this Section or of any other aspect of this Agreement. Any
dispute arising under this Agreement will be first referred for resolution to
each party's respective management designee. To the extent that such designees
cannot resolve the dispute within ten (10) business days of referral to them,
the parties agree to try in good faith to settle the dispute by non-binding
mediation under the Commercial Mediation Rules of Judicial Arbitration and
Mediation Services, Inc. ("JAMS"). Any and all mediation hearings shall be held
in Denver County, Colorado, unless the parties agree otherwise. If and to the
extent after five (5) days of mediation with the mediator, the dispute is not
settled, or if the mediator declares an impasse prior to the end of the five (5)
day period, then and only then the aggrieved party may pursue arbitration as set
forth herein. Any arbitration hereunder shall be conducted under the Dispute
Resolution Rules of JAMS as modified herein. Arbitration proceedings shall take
place in Denver County, Colorado, before a single arbitrator who shall be a
lawyer. The parties shall request that JAMS provide them with a list of five (5)
arbitrators and each party, beginning with Licensee, shall alternately strike
one name from such list until one arbitrator remains and such arbitrator shall
conduct the proceedings. All arbitration proceedings shall be confidential.
Neither party shall disclose any information about the evidence produced by the
other party in the arbitration proceedings, except in the course of judicial,
regulatory, or arbitration proceeding, or as may be demanded by government
authority. Before making any disclosure permitted by the preceding sentence, a
party shall give the other party reasonable advance written notice of the
intended disclosure and an opportunity to prevent disclosure. In connection with
any arbitration provisions hereunder, each party shall have the right to take
the deposition of up to two individuals and any expert witness retained by the
other party. Additional discovery may be had only where the arbitrator so
orders, upon a showing of substantial need. Only evidence that is directly
relevant to the issues may be obtained in discovery. Each party bears the burden
of persuasion of any claim or counterclaim raised by that party. The arbitration
provisions of this Agreement shall not prevent any party from obtaining
injunctive or other equitable relief from a court of competent jurisdiction to
enforce the obligations for which such party may obtain provisional relief
pending a decision on the merits by the arbitrator. Each of the parties hereby
consents to the jurisdiction of Colorado courts for such purpose. The arbitrator
shall have authority to award any remedy or relief that a court of the State of
Colorado could grant in conformity to applicable law, except that the arbitrator
shall have no authority to award attorneys' fees or punitive damages. Any
arbitration award shall be accompanied by a written statement containing a
summary of the issues in controversy, a description of the award, and an
explanation of the reasons for the award. The arbitrator's award shall be final
and judgment may be entered upon such award by any court.
ARTICLE 23
EFFECT OF TERMINATION
(a) Upon the expiration or termination of this Agreement for any reason:
(i) Subject to the terms of this Agreement, Licensee's License immediately
and automatically shall terminate, and all rights in the Business
Concept, including the Intellectual Property, including any "Licensed
▇▇▇▇" granted to Licensee under this Agreement shall revert to
Licensor; and
(ii) Licensee shall, within sixty (60) days from the termination of this
Agreement (such period, the "Transitional Period"), discontinue using
the "Licensed Marks" and remove the "Licensed ▇▇▇▇" from all
promotional and advertisement materials, stationery, computer and
electronic systems (including all Internet websites), and any and all
documents (whether in written, electronic, optical, or other form) in
the possession or control of Licensee, and during the Transitional
Period (the last day of such period being the "Cessation Date") all of
the obligations of Licensee hereunder shall remain in force; provided,
however, that Licensee shall not be required to remove the "Licensed
Marks" from internal business records. '
(b) Upon expiration of the Transitional Period, Licensee shall:
(i) destroy all materials utilizing the "Licensed Marks" and provide
confirmation of same to Licensors;
(ii) not use any trademark, service ▇▇▇▇, domain name, or name that is
confusingly similar to or dilutive of the "Licensed Marks", and at
Licensors' request Licensee will assign any rights to the "Licensed
Marks" to one or more of the Licensors or an Affiliate of one of the
Licensors, as requested by Licensors;
(iii) remove all content from any Internet website corresponding to the
Domain Names, and shall (x) post, at the request of Licensors and
subject to the prior written approval of Licensors, a notice or legend
which shall state that the license granted hereunder has been
terminated and any other information reasonably requested by
Licensors, including hypertext links to one or more of Licensors', or
its Affiliates', other Internet websites; or (y) redirect the Domain
Names to a website of Licensors' choosing;
(iv) take all steps necessary, and fully cooperate with Licensors and/or
their Affiliates, to remove the "Licensed Marks" from Licensee's trade
and assumed names and Sub-licensee's corporate names and cancel any
recordation of such names with any Governmental Entity; and (v) change
any corporate, trade, and assumed name that uses the "Licensed Marks"
to a name that does not include the "Licensed Marks" or any variation,
derivation, or colorable imitation thereof.
ARTICLE 24
MISCELLENOUS
(A) RIGHT AND AUTHORITY: The Parties respectively represent and warrant
that they have full right, power and authority to enter into this Agreement and
perform all of their obligations hereunder and that they are under no legal
impediment which would prevent their signing this Agreement or consummating the
same. Licensor represents and warrants that it has the right to license Licensee
the Business Concept including the Licensed Marks, when and if granted, and that
Licensor has not granted any other existing license to use the Licensed Marks on
products covered hereunder in the Territory and that no such license will be
granted during the term of this Agreement except in accordance with the
provisions hereof.
Not withstanding anything to the contrary contained in this Agreement,
Licensor shall not have the right to negotiate or enter into agreements with
third parties pursuant to which it may grant a license to use prior to the
termination or expiration of this Agreement.
(B) RELATIONSHIP OF THE PARTIES: This Agreement does not create a
partnership, joint venture, or agency relationship between the parties, and
neither Licensee nor Licensor shall have the right, power, or authority to act
as a legal representative of the other, and neither party shall have any power
to obligate or bind the other, or to make any representations, express or
implied, on behalf of or in the name of the other in any manner or for any
purpose. This Article shall also apply to any Sub-licensee which may enter into
an agreement with the Licensee.
(C) VOID PROVISIONS: If any provision or any portion of any provision of
this Agreement shall be held to be void or unenforceable, the remaining
provisions of this Agreement and the remaining portion of any provision held
void or unenforceable in part shall continue in full force and effect.
(D) LIMITATION OF LIABILITY: Notwithstanding anything to the contrary
contained herein, in the event Licensee incurs any expenses, damages or other
liabilities (including, without limitation, reasonable attorneys' fees) in
connection with the breach by Licensor of any term or provision hereof,
Licensor's liability to Licensee thereunder shall not exceed the remuneration,
excluding reimbursement of expenses, actually paid to Licensor by Licensee
hereunder.
(E) CONSTRUCTION: This Agreement shall be construed without regard to any
presumption or other rule requiring construction against the party causing this
Agreement to be drafted. If any words or phrases in this Agreement shall have
been stricken out or otherwise eliminated, whether or not any other words or
phrases have been added, this Agreement shall be construed as if those words or
phrases were never included in this Agreement, and no implication or inference
shall be drawn from the fact that the words or phrases were so stricken out or
otherwise eliminated.
(F) FORCE MAJEURE: Neither party hereto shall be liable to the other for
delay in any performance or for the failure to render any performance under the
Agreement (other than payment or any accrued obligation for the payment of
money) when such delay or failure is by reason of lockouts, strikes, riots,
fires, explosions, blockade, civil commotion, epidemic, insurrection, war or
warlike conditions, terrorism or threat of terrorism, the elements, embargoes,
act of God or the public enemy, compliance with any law, regulation or other
governmental order, whether or not valid, or other similar causes beyond the
control of the party effected. The party claiming to be so affected shall give
notice to the other party promptly after it learns of the occurrence of said
event and of the adverse results thereof. Such notice shall set forth the nature
and extent of the event. The delay or failure shall not be excused unless such
notice is so given. Notwithstanding any other provision of this Agreement,
either party may terminate this Agreement if the other party is unable to
perform any or all of its obligations hereunder for a period of six (6) months
by reason of said event as if the date of termination were the date set forth
herein as the expiration date hereof. If either party elects to terminate this
Agreement under this paragraph, Licensee shall have no further obligations for
the License Fee beyond the date of termination (which shall be prorated if less
than an Annual Period is involved) and shall be obligated to pay any Sales
Royalty which is then due or becomes due.
(G) BINDING EFFECT: This Agreement shall inure to the benefit of and shall
be binding upon the parties, their respective successors, Licensor's transferees
and assigns and Licensee's permitted transferees and assigns.
(H) CAPTIONS: The captions used in this Agreement have been inserted only
for reference purposes. The captions and order of such captions shall not be
deemed to govern, limit, modify, or in any manner affect the scope, meaning, or
intent of any of the provisions and/or terms of this Agreement nor shall any
captions be given any legal effect.
(I) WAIVER INTEGRATION, ALTERATION: No provision of this Agreement shall be
deemed to have been waived unless such waiver is contained in a written notice
given to the Party claiming such waiver has occurred. A waiver or consent,
express or implied, of or to any breach or default by any Person in the
performance by that Person of its obligations with respect to this Agreement is
not a consent or waiver to or of any other breach or default in the performance
by that Person of the same or any other obligations of that Person with respect
to this Agreement. Failure on the part of a Person to complain of any act of any
Person or to declare any Person in default with respect to this Agreement,
irrespective of how long that failure continues, does not constitute a waiver by
that Person of its rights with respect to that default until the applicable
statute-of-limitations period has run. Acceptance of payments by Licensor shall
not be deemed a waiver by Licensor of any violation of or default under any of
the provisions of this Agreement by Licensee.
(J) MODIFICATION OF AGREEMENT: Any modification or amendment of this
Agreement shall be effective if made in writing and signed by both parties.
(K) ILLEGAL OR UNENFORCEABLE: If, any part, term, or provision of this
Agreement shall he found illegal, unenforceable, or in conflict with any valid
controlling Law, the validity of the remaining portions of any provisions, and
any other provisions in this Agreement, shall not be affected thereby.
(L) THIRD PARTIES: Third Parties. Except as specifically set forth or
referred to herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or give to any person, corporation or other entity
other than the parties hereto and their successors or assigns, any rights or
remedies under or by reason of this Agreement.
(M) ASSIGNMENT/DELEGATION: Licensee shall not assign or delegate or
otherwise transfer their obligations under this Agreement without the prior
written consent of Licensor. Any assignment or other transfer in violation of
the foregoing sentence shall be void and of no force and effect. This Agreement
shall be binding upon and inure to the benefit of the Parties and their
respective permitted successors and assigns.
(N) PARAGRAPH HEADINGS: The paragraph headings in this Agreement are for
convenience of reference only and shall be given no substantive effect.
(O) COUNTERPARTS: This Agreement may be executed in several counterparts,
each of which will be deemed an original but all of which will constitute one
and the same instrument.
(P) INVALIDITY: Wherever possible, each provision hereof shall be
interpreted in such manner as to be effective and valid under applicable law,
but 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
provision shall be ineffective only to the extent of such invalidity,
illegality, or unenforceability without invalidating the remainder of such
invalid, illegal, or unenforceable provision or provisions or any other
provisions hereof, unless such a construction would be unreasonable.
(Q) AMENDMENT: Except as expressly provided herein, this Agreement may be
amended only by a written agreement executed by all of the Parties. Following
such amendment, this Agreement, as amended, shall be binding upon the Parties.
(R) EFFECT OF WAIVER AND CONSENT: No provision of this Agreement shall be
deemed to have been waived unless such waiver is contained in a written notice
given to the Party claiming such waiver has occurred. A waiver or consent,
express or implied, of or to any breach or default by any Party in the
performance by that Party of its obligations with respect to this Agreement is
not a consent or waiver to or of any other breach or default in the performance
by that Party of the same or any other obligations of that Party with respect to
this Agreement. Failure on the part of a Party to complain of any act of any
Party or to declare any Party in default with respect to this Agreement,
irrespective of how long that failure continues, does not constitute a waiver by
that Party of its rights with respect to that default until the applicable
statute-of-limitations period has run.
(S) HEADINGS: The headings of the Articles and Sections herein are inserted
for convenience
(T) INTERPRETATION: Each definition in this Agreement includes the singular
and the plural. The words "include" or "including" when used in this Agreement
shall mean "including, without limitation". The word "or" shall not be
exclusive. Except as otherwise stated, reference to Articles, Sections,
Schedules and Exhibits means the Articles, Sections, Schedules and Exhibits of
this Agreement. The Schedules and Exhibits are hereby incorporated by reference
into and shall be deemed a part of this Agreement.
(U) SEVERABILITY: If, any part, term, or provision of this Agreement shall
be found illegal, unenforceable, or in conflict with any valid controlling Law,
the validity of the remaining portions of any provisions, and any other
provisions in this Agreement, shall not be affected thereby.
(V) GOVERNING LAW: THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT REGARD TO THE CHOICE
OF LAWS OR RULES THEREOF, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS. Any legal suit,
action, or proceeding against any of the Parties arising out of or relating to
this Agreement shall only be instituted in any federal or state court in Denver,
Colorado, and each Party hereby irrevocably submits to the exclusive
jurisdiction of any such court in any such suit, action, or proceeding. The
Parties hereby agree to venue in such courts and hereby waive, to the fullest
extent permitted by law, any claim that any such action or proceeding was
brought in an inconvenient forum. Each of the Parties hereby irrevocably waives
all right to trial by jury in any suit, action, or proceeding arising out of or
relating to this Agreement.
(W) ENTIRE AGREEMENT: This Agreement contains the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof,
supersedes all other agreements, representations, understandings, and
warranties, express or implied, oral or written understandings and agreements
relating thereto concerning the Business Concept and any part thereof, and may
not be modified, discharged or terminated, nor may any of the provisions hereof
be waived, orally.
SIGNATURES
VENITECH, LLC
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Date: March 14, 2005
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - Managing Director
FRESH IDEAS MEDIA, INC.
By: ▇▇▇▇ ▇. ▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇ Date: March 14, 2005
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▇▇▇▇ ▇. ▇▇▇, President