INVENTION LICENSE AGREEMENT
Exhibit
4(a)(iii)
THIS
INVENTION LICENSE AGREEMENT (hereinafter referred to as the “License
Agreement”), by and between ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, residing at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇,
▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the “Licensor”), and MK
Enterprises LLC, a Nevada corporation, having a place of business at ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as the “Licensee”).
W
I T
N E S S E T H:
WHEREAS,
Licensor is the owner of certain Patent Rights and Know-How, hereinafter
defined, and has developed Licensed Products, hereinafter defined, which utilize
the Patent Rights and Know-How; and
WHEREAS,
Licensee desires to have the exclusive right to license and/or sublicense the
Patent Rights and Know-How to commercialize the Licensed Products, all as set
forth in this License Agreement; and
WHEREAS,
Licensor desires to grant to Licensee such rights and licenses, as set forth
in
this License Agreement;
NOW,
THEREFORE, in consideration of the mutual covenants and obligations hereinafter
set forth and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE
I
DEFINITIONS
Each
of
the following terms shall, wherever found in this License Agreement, be used
and
understood in accordance with the corresponding definition below:
1.1 “Territory”
shall mean the entire world and each and every country, jurisdiction and/or
sovereign nation therein.
1.2 “Licensed
Products” shall mean the products listed on Exhibit “A”, attached hereto and
made a part hereof, all future products and any improvements to such listed
products and future products conceived, developed or reduced to practice by
Licensor past, present and future, and any other goods that embody, employ,
include or incorporate the Patent Rights and Know-How. Licensed Products shall
also include Improvements. Licensed Products may also be referred to
individually and termed Licensed Product.
1.3 “Ancillary
Products” shall mean any goods or services relating to the Licensed Products
including goods and services sold as a part of the Licensed Products, goods
sold
as replacement parts for the Licensed Products, or goods and services sold
to
repair the Licensed Products.
1.4 “Patent
Rights” shall mean and include the patents and applications set forth on Exhibit
“B”, attached hereto and made a part hereof, and any future patents and
applications owned or acquired by Licensor, and/or any divisions, continuations
or reissues thereof, all foreign patent applications corresponding thereto,
and
all United States and foreign patents issued upon any such applications.
1.5 “Know-How”
shall mean all of the technical know-how, trade secrets, technical information,
and knowledge, directly or indirectly, relating to the manufacture and use
of
the Licensed Products, including, without limitation, configurations, formulas,
engineering, materials, scientific and practical information and the disclosure
in the Patent Rights, whether patentable or unpatentable, and all physical
manifestations or embodiments of the Licensed Products including without
limitation all data specifications, prototypes, drawings, schematics, notes,
records and other writings; all such Know-How to be used or practiced or capable
of being used or practiced in the manufacture and use of the Licensed
Products.
1.6 “Improvements”
shall mean and include any improvements and modifications to particular Licensed
Products, including, without limitation, the materials and configuration of
the
Licensed Products and any machinery or equipment for the manufacture or use
of
the Licensed Products, together with any improvements and modifications thereof,
developed by Licensor during the term of this License Agreement.
1.7 “Net
Sales” of the Licensed Products and Ancillary Products for any given period
shall mean monies actually received by Licensee during the said period in
consideration for the Licensed Products and Ancillary Products, adjusted for
exchanges and returns of the Licensed Product and Ancillary Products sold or
delivered by Licensee during a previous period. Net Sales shall not include
any
charges for freight, packing, or insurance if such charges are identified and
billed separately and in addition to the list price for the Licensed Products
and Ancillary Products; nor shall Net Sales include charges for tax or duty
on
sales or delivery of the Licensed Products and Ancillary Products. Net Sales
shall not include Net Sales by sublicensees pursuant to Paragraph
2.2.
1.8 “Gross
Receipts” for a given period shall mean monies actually received by Licensee
during the said period from sublicensees pursuant to sublicenses to
commercialize the Licensed Products and Ancillary Products pursuant to Paragraph
2.2.
1.9 “License
Year” shall mean each successive period of twelve months, commencing on March 31
in the year in which the License Agreement becomes effective.
1.10 “Effective
Date” shall mean the date of execution of this License Agreement, which is the
day on which this License Agreement shall begin effect.
1.11 “Affiliate”
shall mean a company, sole proprietorship, partnership, joint venture or
corporation in which one of the parties hereto and/or their officers, directors
or shareholders, owns or controls, directly or indirectly, at least twenty
percent (20%) of the voting stock and/or equity, or a company, sole
proprietorship, person, partnership, joint venture, or corporation which owns
at
least twenty percent (20%) of the voting stock and/or equity of one of the
parties hereto.
ARTICLE
II
GRANT
OF LICENSES
2.1 Licensor
grants to Licensee the exclusive right and license throughout the Territory
to
use and employ the Patent Rights and Know-How to make, use and sell the Licensed
Products
and
Ancillary Products
for the
term hereof and subject to the provisions of this License
Agreement.
2.2 The
licenses granted pursuant to Paragraph 2.1 above shall specifically include
the
right of Licensee to grant sublicenses throughout the Territory. Any sublicense
granted by Licensee shall be consistent with the terms of this License
Agreement. Any sublicense granted pursuant to this Paragraph 2.2 that varies
the
terms of this License Agreement shall require the prior written approval of
Licensor. Licensee shall provide Licensor with copies of all documents or
contracts regarding any sublicense hereunder.
2.3 Within
ten (10) days after execution of this License Agreement, Licensor shall supply
to Licensee, at a mutually agreeable location, without expense to Licensee,
all
Know-How, including materials and written information related to the Licensed
Products not previously delivered.
ARTICLE
III
CONSIDERATION
- PAYMENT - REPORTING - RECORDS
3.1 Licensee
agrees to pay a royalty (hereafter “Running Royalty”) to Licensor for the term
of this License Agreement in the amount of One and One-Half Percent (1.5 %)
of
Net Sales of Licensee for the Licensed Products sold by Licensee and One Percent
(1.0 %) of Net Sales of Licensee for any Ancillary Products sold by Licensee.
3.2 Licensee
agrees to pay Licensor a percentage (hereinafter “Percentage Royalty”) to
Licensor for the term of this License Agreement in the amount of Twenty Five
Percent (25%) of the Gross Receipts received by Licensee from sublicensees
of
the Licensed Products and Ancillary Products.
3.3 The
amount of the Running Royalties and Percentage Royalty payable according to
Paragraphs 3.2 and 3.3 have been negotiated to include payment of the license
for the Know-How and the Patent Rights without regard to the patentability
of
the Patent Rights.
3.4 For
the
purposes of computing and paying the Running
Royalty and the Percentage
(“Royalties”)
pursuant
to this Article:
(a) The
Licensed Product and Ancillary Products shall be deemed sold and Licensor’s
Running Royalty thereon earned upon receipt by Licensee of amounts invoiced
for
the Licensed Product and Ancillary Products, and Licensor’s Royalties shall be
due as set out in Paragraphs (c) and (d) below.
(b) Payment
of the Royalties shall be in U.S. Dollars by certified check or wire transfer
to
a bank account specified by Licensor and the selling price, for purposes of
computations of such Royalties, shall be converted to U.S. Dollars, when
necessary, as of the date when the Licensed Product are deemed
sold.
(c) Payment
of the Running Royalty and shall be due and paid to Licensor within sixty (60)
days of the close of each three (3) month period during each License Year
of
the
term of this License Agreement.
(d) Payment
of the Percentage Royalty shall be due and paid to Licensor within thirty (30)
days of receipt of Gross Receipts by Licensee.
(e) The
Royalties due hereunder shall be calculated using U.S. Generally Accepted
Accounting Principles.
3.5 Together
with each payment, Licensee shall render to Licensor a written report stating,
for the preceding period covered by such payment, the number of units of each
of
the Licensed Products sold by Licensee in such quarter, the Unit Sales of
Licensee for the Licensed Product and Ancillary Products, the Net Sales of
the
Licensed Product and Ancillary Products sold by Licensee in such quarter, the
Gross Receipts or other consideration received by Licensee from sublicensees,
the Running Royalty and Percentage Royalty due to Licensor, and the Running
Royalty and Percentage Royalty paid to Licensor by Licensee.
3.6 Licensee
agrees to keep records of the Licensed Products and Ancillary Products sold
and
Gross Receipts received in sufficient detail to enable the Royalties payable
by
Licensee to Licensor to be determined and further agrees to permit its books
and
records pertinent to the Licensed Products, Ancillary Products and Gross
Receipts to be examined from time to time, but not more often than twice a
year,
during normal business hours by providing at least five business days written
notice, to the extent necessary to verify the amount of Royalties payable
hereunder.
ARTICLE
IV
PATENT
APPLICATIONS AND PATENTS
4.1 The
parties hereto agree that Licensor shall hold the entire right, title, and
interest in and to the Patent Rights and Know-How, and Licensee agrees to
perform all acts and to execute, acknowledge and deliver all instruments or
writings reasonably requested and necessary for Licensor to perfect title to
the
Patent Rights and Know-How. Licensor hereby grants an exclusive license of
the
Patent Rights and Know-How to Licensee pursuant to Paragraph 2.1.
4.2 The
parties hereto agree that they will procure Patent Rights on the Licensed
Products. Licensor shall have the sole right to prosecute, control, and pursue
such Patent Rights under the patent laws of the United States and foreign
countries. Licensor agrees to prosecute, with good faith and due diligence,
all
pending and future patent applications. All fees, costs and expenses shall
be
borne by Licensee. Licensee agrees to cooperate with Licensor to whatever extent
is necessary to procure such patent protection.
4.3 In
the
event Licensee decides to abandon any pending United States or foreign patent
application or to not pay any annuity or maintenance fee required by any
country, Licensee shall give Licensor thirty (30) days prior written notice
of
such decision and shall allow Licensor to pay such fee. Licensee’s decision
shall have no effect on the Royalties.
4.4 Licensor
agrees to keep Licensee fully informed, at Licensee’s expense, of the
prosecution of all U.S. and foreign patent applications including submitting
to
the Licensee copies of all official actions and responses thereto.
4.5 Licensee
agrees to comply with any marking requirements of Licensor to insure compliance
with 35 U.S.C. § 287, and agrees to insure compliance by its sublicensees, if
any.
ARTICLE
V
CONFIDENTIALITY
5.1 Subject
to the rights of the parties pursuant to the licenses granted in Article II,
the
parties agree to receive and hold in confidence the Know-How and Patent Rights
revealed to Licensee pursuant to this License Agreement. The provisions of
this
paragraph shall not be applicable with respect to any portion of the Know-How
and Patent Rights which:
(a) is,
or
shall have been in the possession of disclosee prior to the first disclosure
by
discloser thereof to disclosee;
(b) is,
or
through no fault of the disclosee, becomes published or otherwise available
to
others or the public under circumstances such that such others or the public
may
utilize the Know-How, Patent Rights and Improvements without any direct or
indirect obligation to Licensor or Licensee;
(c) is,
or at
any time may be, acquired by the disclosee from any third party rightfully
possessed of the Know-How, Patent Rights and Improvements and having no direct
or indirect obligation to the discloser with respect to such Know-How, Patent
Rights and Improvements; or
(d) is
necessarily disclosed through the sale of Licensed Products pursuant to this
License Agreement.
5.2 Licensee
agrees to protect and safeguard the Know-How and Patent Rights (“Confidential
Information”) against unauthorized publication or disclosure by the same
procedures utilized by Licensee in regard to its own Confidential Information,
and agrees not to use any of the Confidential Information except for such
purposes and licenses as are authorized and granted by this License Agreement.
Licensee further agrees that the Confidential Information will be disclosed
only
to such of Licensee’s employees, sublicensees, agents, or contractors as have
need for such Confidential Information in furtherance of the purposes for which
Licensee is authorized to use it. Licensee will cooperate with Licensor in
the
enforcement of any secrecy agreement executed by such persons and will insure
that all sublicensees, employees, and others to whom Licensee discloses
Confidential Information executes such a secrecy agreement.
ARTICLE
VI
INFRINGEMENT
BY OTHERS; PROTECTION OF PATENTS
6.1 Licensor
and Licensee shall each promptly inform the other of any suspected infringement
of any Patent Rights or patented Elected Improvements by a third party, and
Licensor and Licensee each shall have the right to institute an action for
infringement of the Patent Rights against such third party in accordance with
the following procedure:
(a) Licensee
shall have the right to institute suit in its name. Licensee shall bear the
entire cost thereof, including attorneys’ fees, and shall be entitled to retain
the entire amount of the recoveries, if any, whether by judgment, award, decree
or settlement, subject to Licensor’s right of approval of any provisions
relating to the validity and/or infringement of any Patent Rights owned by
Licensor and provided, however, that Licensor shall be paid any back Royalties
relating to such action. Licensee shall exercise control over such actions;
provided, however, that Licensor may, if it so desires, be represented by
counsel of its own selection, the fees for which counsel shall be borne by
Licensee.
(b) If
Licensee determines not to institute a suit and in the event that Licensor
and
Licensee agree to institute suit jointly, the suit shall be brought in both
their names, the cost thereof, including attorneys’ fees, shall be borne by
mutual agreement and in the event the parties cannot reach mutual agreement,
then the cost thereof shall be borne equally. The recoveries, if any, whether
by
judgment, award, decree or settlement, shall be shared in proportion to the
costs borne by each party. Licensor’s share of the costs of such suit shall be
deducted, at Licensor’s option, from Royalties payable to Licensor pursuant to
Article III. Licensor shall exercise control over such actions; provided,
however, that Licensee may, if it so desires, be represented by counsel of
its
own selection, the fees for which counsel shall be borne by Licensee.
(c) In
the
absence of agreement to institute a suit jointly and if Licensee determines
not
to institute a suit, Licensor may institute suit. Licensor shall bear the cost
of such litigation including attorneys’ fees and shall be entitled to all
recoveries, if any, whether by way of judgment, award, decree or
settlement.
6.2 Should
either party commence a suit under the provisions of Paragraph 6.1 and
thereafter elect to abandon the same, it shall give timely notice to the other
who may, if it so desires, continue prosecution of such suit; provided, however,
that the sharing of expenses and recovery in such suit shall be agreed upon
between the parties.
ARTICLE
VII
TERM
AND TERMINATION
7.1 This
License Agreement shall terminate upon the termination of Licensee’s payment of
Royalties pursuant to this License Agreement, unless sooner terminated as
provided in this License Agreement.
7.2 Notwithstanding
anything to the contrary contained in this License Agreement, Licensee shall
have the absolute right to terminate this License Agreement by notifying
Licensor in writing, discontinuing sales and paying any Royalties due.
7.3 In
the
event Licensee shall commit a substantial breach of any of the provisions of
this License Agreement, Licensor shall provide written notice of the substantial
breach to Licensee. If such breach is capable of being remedied or made good,
Licensee shall have thirty (30) days to remedy or make good such breach. If
such
breach is remedied within such time period, this License Agreement shall
continue in full force and effect. If such breach is not remedied within such
time period, Licensor may terminate this License Agreement upon ten (10) days
written notice.
7.4 This
License Agreement shall automatically terminate if Licensee shall become
bankrupt, or if a receiver shall be appointed for any of the property or assets
of Licensee, or if Licensee shall make a general assignment or compromise of
its
obligations with its creditors, if Licensee files for bankruptcy protection,
or
if the Licensee becomes insolvent, or if the whole or any part of the business
or shareholdings of Licensee shall be subjected to compulsory acquisition,
nationalization, or forced sale.
7.5 Licensor
shall not have the right to cancel this License Agreement for any reason other
than as provided for under this License Agreement.
7.6 Upon
termination of this License Agreement pursuant to the foregoing provisions
of
this Article VII, the licenses granted hereunder shall terminate, and Licensee
shall have no duty to pay the Royalties pursuant to Article III. Any Royalties
accrued but not paid as of the date of such termination shall be paid to
Licensor within thirty (30) days after such termination.
7.7 Irrespective
of the existence of an issued and unexpired Patent Rights and upon termination
of this License Agreement, Licensee may complete and sell any Licensed Products
and Ancillary Product in the process of production or sale by Licensee at the
time of termination or for which raw materials for the production have been
purchased, and may sell any inventory of Licensed Products or Ancillary Products
produced or sold by Licensee on hand at the time of termination; provided that
Licensee shall continue to account for and pay Royalties thereon as
if the
License Agreement had not been terminated. Notwithstanding the above, Licensee
shall have no right and license to sell Licensed Products or Ancillary Products
six months after the effective date of the termination of this License
Agreement.
7.8 Upon
termination of this License Agreement for any reason, Licensee shall assign
to
Licensor all sublicenses granted pursuant to Paragraph 2.2 such that all
consideration to be paid by sublicensees thereafter will be paid to
Licensor.
7.9 The
duties and obligations of the parties pursuant to Paragraphs 3.1, 3.2, 5.1,
and
5.2 shall survive any termination of this License Agreement.
ARTICLE
VIII
ASSIGNMENT
AND SALE
8.1 Licensor
agrees not to transfer or assign its interest in this License Agreement without
the prior written consent of the Licensee. If Licensor transfers this License
Agreement, the transferor shall be equally bound to Licensor’s obligations to
the Licensee as defined in this License Agreement.
8.2 In
the
event Licensor desires to assign all or any part of its rights, privileges
and
interests under this License Agreement, Licensor shall first offer (“Right of
First Offer”) such assignment to Licensee by notifying Licensee in writing of
the terms and conditions upon which Licensor would be willing to make such
an
assignment; and Licensee shall have the right to acquire said rights, privileges
and interests of Licensor by accepting the offer in accordance with said terms
and conditions or equivalent cash. If within fifteen (15) days after receipt
of
Licensor’s notice, Licensee advises Licensor of its acceptance of the offer as
stated in the notice, Licensor agrees to promptly make the assignment to
Licensee on the stated terms and conditions and shall have an additional thirty
(30) business days, if the assignment price is less than $1 Million Dollars
and
sixty (60) days if the assignment price is over $1 Million Dollars, to pay
for
the same with delivery against payment.
8.3 If
within
fifteen (15) days after receipt of Licensor’s notice, Licensee does not indicate
its acceptance of the offer as stated in the notice, Licensor shall thereafter
have the right, subject to the prior written consent of Licensee, to make the
assignment to another person, firm or corporation on the same terms and
conditions as stated in the notice. Should the Licensee not exercise its Right
of First Offer and should the contemplated assignment not be completed within
ninety (90) days from the date of Licensor’s notice, or should the terms and
conditions thereof be altered in any way, this Right of First Offer shall be
reinstated in any subsequent proposed assignment, or the altered terms and
conditions for the current transaction, must again be offered by Licensor in
accordance with the terms of Paragraph 8.2.
8.4 Immediately
prior to Licensor going into bankruptcy, Licensee shall have a Right of First
Offer on any of Licensor’s assets at fair market value.
8.5 It
is
hereby agreed that prior to sale to a third party contemplated pursuant to
Paragraphs 8.1 and 8.2 above, the purchaser shall agree to be bound by the
terms
of this License Agreement and to assume all of Licensor’s obligations to
Licensee thereunder.
8.6 Licensee
shall have the right to transfer and/or assign this License Agreement by
providing written notice to Licensor, provided that Licensee is in good standing
under this License Agreement and the transferee or assignee assumes all
obligations of Licensee to Licensor under this License Agreement.
ARTICLE
IX
REPRESENTATIONS
AND WARRANTIES
9.1 Licensor
hereby represents and warrants to Licensee that it has not heretofore made
any
license, commitment or agreement, or will Licensor make any license, commitment
or agreement for the term of this License Agreement which is inconsistent with
this License Agreement and the rights granted herein, and that it has full
and
complete power and authority to enter into and carry out its obligations under
this License Agreement and under any agreements and documents which may be
executed in connection herewith. Licensor represents and warrants that to the
best of its knowledge, the Patent Rights do not infringe upon the proprietary
rights or patents of any third party. Licensor represents that to the best
of
its knowledge, Licensor is not aware of any regulations or laws in the Territory
that might presently apply such that the sales potential of any of the Licensed
Product is limited or reduced through legal violation or potential violation.
Licensor agrees to indemnify and hold Licensee harmless of any liabilities,
costs and expenses (including attorneys’ fees and expenses), obligations and
causes of action arising out of or relating to any breach of the representations
and warranties made by Licensor herein.
9.2 Licensor
does not represent and warrant to Licensee that patents will issue or be granted
on any of the Patent Rights; or that any of the marks associated with the
Licensed Product are registrable as a trademark; or that any of the Know-How
is
copyrightable. Further Licensor does not represent and warrant to Licensee
that
any of the Patent Rights have commercial value.
9.3 Licensee
hereby represents and warrants to Licensor that Licensee is a corporation duly
organized, validly existing and in good standing under the laws of the state
of
Nevada. Licensee further represents and warrants that it has not heretofore
made
any license, commitment or agreement, or will Licensee make any license,
commitment or agreement for the term of this License Agreement which is
inconsistent with this License Agreement and the rights granted herein, and
that
it has full and complete power and authority to enter into and carry out its
obligations under this License Agreement and under any agreements and documents
which may be executed in connection herewith. Licensee represents and warrants
that it is Licensee’s policy not to misappropriate or violate the proprietary
trade secret or confidential information of third parties. Licensee agrees
to
indemnify and hold Licensor harmless of any liabilities, costs and expenses
(including attorneys’ fees and expenses), obligations and causes of action
arising out of or relating to any breach of the representations and warranties
made by Licensee herein.
ARTICLE
X
PRODUCT
QUALITY AND PRODUCT LIABILITY
10.1 Licensee
agrees that the Licensed Products and Ancillary Products will be produced in
compliance with all federal, state and local laws.
10.2 Licensee
and/or its sublicensees shall carry product liability insurance in an amount
commensurate with the risks connected with the production and sale of the
Licensed Products and Ancillary Products. Such insurance shall name Licensor
and
the inventors of the Patent Rights as co-insureds. As proof of insurance,
Licensee shall submit to Licensor a certificate of insurance naming Licensor
and
the inventors of the Patent Rights as insured parties and shall require
Licensee’s insurer to notify Licensor upon the failure to pay premiums due under
the policy. This submission shall be made prior to any Licensed Products or
Ancillary Products being distributed or sold.
10.3 Licensee
agrees to indemnify and hold Licensor harmless against any and all claims,
liabilities, losses, expenses, fees, including without limitation attorneys’
fees, damages, including without limitation amounts of judgment and/or amounts
paid in settlement or costs (all of the foregoing being collectively called
“Costs”) incurred by it and arising out of or attributable to the production and
sale of Licensed Products and Ancillary Products; provided, however, that such
indemnity shall be null and void as to any cause of action, which can be shown
by Licensee that Licensor knew or should have known and failed to timely inform
Licensee of such cause of action. Promptly after receipt of notice of the
commencement of any action or assertion of any claim against Licensor in respect
of which indemnification be sought, Licensor shall notify Licensee in writing
of
the commencement of such action or assertion of such claim. Upon receipt of
the
notice of commencement of suit or assertion of such claim, Licensee shall notify
Licensor within fifteen (15) days that Licensee shall appear and defend
(including the sole authority to compromise and settle such claims; provided,
however, that such settlement or compromise does not affect in any way the
activities or rights of Licensor) against any such suit or claim at Licensee’s
expense, with an attorney of its choice. In the event Licensee shall fail to
give notice of and undertake to appear and defend within such fifteen (15)
day
period, then it is hereby expressly agreed that the right to appear and defend
by Licensee has been waived, and Licensor shall proceed on its sole authority,
at Licensee’s expense.
ARTICLE
XI
GENERAL
11.1 Binding
Agreement.
This
License Agreement shall be binding upon the successors and assigns of the
parties hereto. Nothing contained in this License Agreement shall be construed
to place the parties in the relationship of legal representatives, partners,
or
joint venturers.
11.2 Applicable
Law.
This
License Agreement shall be construed, interpreted and applied in accordance
with
the laws of the State of Texas.
11.3 Notices.
All
notices, demands or other writings in this License Agreement provided to be
given or made or sent, or which may be given or made or sent, by either party
hereto to the other, shall be deemed to have been fully given or made or sent
when made in writing and deposited in the United States mail, first class,
postage prepaid, sent certified or registered mail, and addressed to the
addresses first hereinabove given or at such other address as either party
hereto may specify by notice given in accordance with this
paragraph.
11.4 Waiver.
Each
party covenants and agrees that if the other party fails or neglects for any
reason to take advantage of any of the terms hereof providing for the
termination of this License Agreement, or if, having the right to declare this
License Agreement terminated, such other party shall fail to do, any such
failure or neglect shall not be or be deemed or be construed to be a waiver
of
any subsequently occurring cause for the termination of this License Agreement,
or as a waiver of any of the terms, covenants or conditions of this License
Agreement or the performance thereof. None of the terms, covenants or conditions
of this License Agreement can be waived except by the written consent of the
waiving party. Except as otherwise stated herein, each of the parties hereby
waives any claims which it might have against the other prior to the date of
execution of this License Agreement.
11.5 Force
Majeure.
Neither
party hereto shall be liable to the other party for failure or delay in the
performance of any duties or obligations hereunder or in making shipments of
Licensed Product produced hereunder due to strikes, lockouts, acts of God,
acts
of war, fire, flood, explosions, embargo, litigation or labor disputes,
Government or any other laws and regulations, or any other cause beyond the
control or without the fault of such party.
11.6 Scope
of Agreement.
This
License Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof.
11.7 Construction.
The
parties acknowledge that each party and its counsel have reviewed and revised
this License Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not
be
employed in the interpretation of this License Agreement or any amendments
or
exhibits hereto.
11.8 Headings.
The
subject headings of the paragraphs of this License Agreement are included for
purposes of convenience only, and shall not effect the construction or
interpretation of any of its provisions.
11.9 Counterparts.
This
License Agreement may be executed in one or more counterparts, and also executed
shall constitute one agreement, binding on both parties hereto, notwithstanding
that both parties are not signatory to the same counterpart.
11.10 Severability.
If any
part or parts of this License Agreement are found to be illegal or
unenforceable, the remainder shall be considered severable, shall remain in
full
force and effect, and shall be enforceable.
11.11 Further
Documents.
Each of
the parties shall take all necessary actions, including the execution and
delivery of all necessary documents or instruments, as may be reasonably
requested by the other party in order to effectuate the intent of this License
Agreement.
IN
WITNESS WHEREOF, the parties hereto have executed this License Agreement in
duplicate originals, individually, or by their duly authorized officers or
representatives, as of the date of the last party to execute this License
Agreement.
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Date:______________
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| LICENSEE: MK ENTERPRISES LLC | ||
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| WITNESS:________________________________ | By: | /s/ |
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▇. ▇▇▇▇▇▇, President
Date:______________
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EXHIBIT
“A”
LICENSED
PRODUCTS
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Licensed
Product One
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DUST
WOLF
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The
duster is a simple device that fits on the end of most standard vacuum cleaners.
It uses the negative pressure of the incoming air to drive a rotating brush
that
is covered with soft bristles. The alignment of the brush is such that upon
each
rotation of the brush, the bristles move across the air import vent that runs
the length of the brush. Using the vacuum power, this cleans the brush on each
rotation and prevents the spread of dust to surrounding areas. The brush is
driven by an impeller mounted in the base of the Dust Wolf just above the
connection port that goes to the vacuum cleaner hose. The incoming rush of
air
drives the impeller and thus turns the brush. The length of the brush is
designed to allow the Dust Wolf to easily clean a large surface, specifically
several mini-blind blades at a time.
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Licensed
Product Two
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SONIQUE
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Sonique
is a sonic skin care system with various attachments that facilitates personal
hygiene. It utilizes specific ultrasonic frequencies to vibrate a cleaning
head
at the end of the device. This ultrasonic vibration has many beneficial effects
on the skin’s surface that can be enhanced through the use of different
attachments, i.e. deep-seated soil can be brought to the surface, dead skin
can
be exfoliated and the skin can be rejuvenated. The system is operated on a
rechargeable battery that is built into the unit.
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Licensed
Product Three
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TOMORROW
GARDEN
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The
Tomorrow Garden (TG) and associated Plant Tissue Culture (PTC) Process result
in
a kit designed to take advantage of PTC and offer, direct to the consumer,
an
easy to use kit featuring plants not readily available in the marketplace.
These
plants are of a guaranteed superior quality and have significantly improved
“Fresh Life” span. PTC or ‘micro-propagation’ is a laboratory process that
allows for the rapid production of mass quantities of genetically identical
plants. This process removes the randomness of genetics by using the plant’s own
cells that already exhibit the identified desirable traits. The Tomorrow Garden
Kits are multi-plant packages (typically 6 packs) arranged in pre-selected
themes i.e. Italian herbs, pet plants, African violets, etc. to suit the
client’s preferences.
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Licensed
Product Four
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ELECTRONIC
PLANT STIMULATOR
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The
invention relates to the electronic stimulation of plant development. More
particularly, it relates to the stimulation of plant development through
electrifying the environment around a plant or part of a plant with an
electrical field, preferably a pulsed field. The invention also relates to
an
electronic method of stimulating the active membrane transport systems of
growing plants and harvested plant products in order to promote growth and
extend the shelf life of harvested material. The invention is of particular
interest as it relates to shipment and marketing of cut flowers, greens and
trees and more particularly to methods and apparatus for handling, shipping,
and
marketing of cut flowers.
EXHIBIT
“B”
PATENT
RIGHTS
Dust
Removal Device, US App No 60/687,152, filed June 3, 2005.
Ultrasonic
Skin Cleaner, US App No 10/890,041, filed 7/13/04
Ultrasonic
Skin Cleaner, PCT No PCT/US04/22476, filed 7/14/04