TECHNOLOGY LICENSE and DISTRIBUTION AGREEMENT
Exhibit 10.2
TECHNOLOGY
LICENSE
and
DISTRIBUTION
AGREEMENT
THIS TECHNOLOGY LICENSE and
DISTRIBUTION AGREEMENT is made as of the 1st day of
August, 2008 by and between ▇▇▇▇▇ ▇▇▇▇▇ AND ASSOCIATES, INC., a Colorado
Corporation, its successors, affiliates, and assigns, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
an individual residing in the State of Arizona, his successors, and assigns
(hereinafter all collectively referred to as the "Licensee") and, FUEL CONCEPTS
LLC, an Ohio Limited Liability Company, its successors, affiliates, and assigns
("Licensor") (hereinafter all collectively referred to as the “Licensor” or
“Owner”). Sometimes referred to herein collectively as “the
parties”.
In consideration of the
representations, warranties and mutual promises set forth herein, the parties
agree as follows:
1. Owner
grants to Licensee, for a period of five (5) years from the date of the
effective date of this agreement (the “Initial Term”), the exclusive rights to
manufacture, sell and distribute one hundred percent (100%) of all design,
methods, materials, devices, utility, and know how embodied in UNITED STATES
PATENT: 7117859 including but not limited to any other alterations, amendments,
supplemental filings, whether now known or hereafter known, devise or
contrivance of any type, character or design, embodied in or would be added to
UNITED STATES PATENT: 7117859 as set forth on Exhibit A , attached
hereto and incorporated herein (hereinafter referred to as the “Technology”).
This Exclusive License shall be both ▇▇▇▇-wide and throughout the universe,
whether known or yet unknown (the “Territory”). Owner grants to Licensee three
(3) separate options to extend the term for further periods of five (5) years
each ("Option Periods"), each upon the same terms and conditions applicable to
the Initial Period, except as otherwise hereinafter set forth. The
Initial Period and every Option Period for which Licensee has exercised its
option are hereinafter sometimes referred to together as "the
Term". Each option shall be exercised, if at all, by notice to Owner
at least sixty (60) days prior to the date the Term would otherwise
expire.
a. Licensee
shall have the exclusive right to release, sell manufacture and distribute
products embodying the Technology throughout the Territory, as defined in this
Section 1, under its trade name; to use (including publish) the names (including
all professional, assumed or fictitious names), likenesses, photographs and
biographical and technical material of any party, including Owner, rendering
services hereunder or related to the products embodying the Technology; and
to publicly promote the Technology by means of the internet, radio
broadcast, television broadcast, cable transmission or any other method now or
hereafter known including new technologies.
b. Except as provided in this Agreement, all other rights of any nature in the aforementioned Technology are reserved by Owner. All drawing, designs, patents or duplicates thereof of the Technology covered hereunder, and all copyrights shall remain the sole and exclusive property of Owner, subject to the rights granted to Licensee herein.
2. Licensee
shall enter into an Exclusive Manufacturing Agreement with Owner for the
manufacturing, packaging and shipping of the products covered under this
Agreement as forth in
Exhibit B attached hereto and incorporated herein.
3.
Licensee shall market and release for distribution products embodying the
Technology, as defined in Section 1 of this Agreement, in the United States
within one hundred-eighty (180) days of Owner's delivery of the Licensed
materials set-forth in Section 8 of this Agreement. Licensee will
market and release for distribution products embodying the Technology in the
major foreign territories (such as Canada, Western Europe, U.K.) as warranted by
demand of foreign buyers.
4.
As consideration for this Agreement, Licensee shall pay to Owner 1,000,000
shares of Licensee’s $.001 par value common
stock. The Shares shall be fully paid for and non-assessable when issued and
shall bear a restrictive legend in
accordance with the rules and regulations of the United States Securities and
Exchange Commission.
5. As additional consideration
for this Agreement, Licensee shall pay to Owner a royalty of Forty ($40.00) US
Dollars and Zero cents from “Net
Receipts” on all
sales over and above Six Thousand (6,000) units per calendar year of products
embodying the Technology. This royalty shall be paid out of
the net receipts from the sales of products covered under this
Agreement. Licensee's "net receipts" are defined as actual revenue
derived and collected from the sale of products sold at Licensee's wholesale
price less hard costs for manufacturing. No Owner royalty shall be
paid in connection with free or promotional goods. "Hard costs" means
all costs incurred with respect to the manufacture, distribution and sale
of products embodying the Technology including without limitation, graphic
design, artwork, printing, including proofs and color separations, physical
manufacturing and duplication, packaging and shipping of said products. Hard
costs do not include warehousing, accounting, distribution and internet,
television, radio and retail advertising, marketing and promotion.
a. Royalties
in respect of sales of products embodying the Technology outside the United
States shall be computed in the same national currency as Licensee is accounted
to by its licensees and shall be paid to Owner at the same rate of exchange as
Licensee is paid. It is understood that such royalties will not be
due and payable until payment thereof or credit therefore against advances
previously taken is received by Licensee in the United States of
America. In the event Licensee is unable to receive payment in United
States dollars in the United States due to governmental regulations,
royalties therefore shall not be credited to Owner's account during the
continuance of such inability except that (i) if any accounting rendered to
Owner hereunder during the continuance of such inability shows Owner's account
to be in a credit position, Licensee will, after Owner's request and at Owner's
expense, if Licensee is able to do so, deposit such royalties to Owner's credit
in the applicable foreign currency in a foreign depository, or (ii) if the
royalties are not credited to Owner's account exceed the amount, if any, by
which Owner's account is in a debit position, then Licensee will, after Owner's
request and at Owner's expense, and if Licensee is able to do so, deposit such
excess royalties to Owner's credit in the applicable foreign currency in a
foreign depository. Deposit as aforesaid shall fulfill Licensee's
obligations under this Agreement as to record sales to which such royalty
payments are applicable.
6. Statements
as to royalties payable hereunder shall be sent by Licensee to Owner within
Thirty (30) days after the receipt of manufactured product at Licensee’s
warehouse from the manufacture. Concurrently with the rendition of each
statement, Licensee shall pay Owner all royalties shown to be due by such
statement. No statements need be rendered by Licensee for any such period after
the expiration of the Term hereof for which there are no sales of product
derived from the license hereunder. All payments shall be made to the
order of Owner and shall be sent to Owner at Owner's address contained in this
Agreement. Licensee shall be entitled to maintain a single account
with respect to all product sales subject to this or any other agreement. Owner
shall be deemed to have consented to all accountings rendered by Licensee
hereunder and said accountings shall be binding upon Owner and shall not be
subject to any objection by Owner for any reason unless specific objection, in
writing, stating the basis thereof, is given to Licensee within one (1) year
after the date rendered, and after such written objection, unless suit is
instituted within eighteen (18) months after the date upon which Licensee
notifies Owner that it denies the validity of the objection.
7. Owner shall
have the right at Owner's sole cost and expense to appoint a Certified Public
Accountant or attorney who is not then currently engaged in an outstanding audit
of Licensee to examine and copy Licensee's books and records as same pertain to
sales of the Technology subject hereto, provided that any such examination shall
be for a reasonable duration and shall take place at Licensee's offices during
normal business hours on one (1) month prior written notice and shall not occur
more than once in any calendar year.
(a) Notwithstanding
anything to the contrary contained herein, if Licensee notifies Owner that the
Certified Public Accountant designated by Owner to conduct an audit hereunder is
engaged in an outstanding audit of Licensee on behalf of another person ("Other
Audit"), Owner may nevertheless have Owner's audit conducted by such accountant,
and the running of the time within which such audit may be made shall be
suspended until such accountant has completed the Other Audit, subject to the
following conditions:
i) Owner shall notify
Licensee of Owner's election to that effect within fifteen (15) days after the
date of Licensee's said notice to Owner;
ii) Owner's accountant shall
proceed in a reasonable continuous and expeditious manner to complete the Other
Audit and render the final report thereon to the client and Licensee;
and
iii) Owner's
audit shall not be commenced by Owner's accountant before the delivery to
Licensee of the final report on the Other Audit, shall be commenced within
thirty (30) days thereafter, and shall be conducted in a reasonable continuous
manner.
(b) The
provisions hereunder will not apply if Licensee elects to waive said provisions
which require that Owner's accountant shall not be engaged in any Other
Audit.
8. Owner shall provide Licensee as
part of Owner's delivery obligation hereunder, copies
of the original patent, including all revisions thereof, photographs, rendering,
drawings, training materials, technical support documentation and other artwork
necessary to enable Licensee to produce all technical support, training, sales, marketing,
advertising and promotional material for the distribution and sale of the
Technology.
9. Owner
represents and warrants to Licensee that Owner is under no restriction,
contractual or otherwise, with respect to his right or capacity to enter into or
execute this contract. Owner further represents and warrants to
Licensee, with respect to any and all materials delivered to Licensee in
connection with this Agreement, that Owner owns said materials or has otherwise
obtained all pertinent rights associated with said materials and has paid any
and all license fees or royalties due, or any and all fees and costs
required to be paid in connection with any contractual agreements, applicable
statutes or comparable law of any other jurisdiction regulating the rights and
uses of said materials, including but not limited to Patent and Copyright laws
of the United States of America. Owner indemnifies and holds Licensee
harmless from and against any and all claims, threats, suits, penalties,
liabilities, costs, including without limitation legal fees, costs,
disbursements, incurred, suffered or expended by or threatened against Licensee
pursuant to this Agreement and any claim of infringement or copyright or
trademark, or of any claim for royalties or fees due pursuant to applicable laws
of the United States of America, or any other statutes or comparable law of any
other jurisdiction regulating the rights and uses of recorded and printed
materials.
10. Licensee
represents and warrants to Owner that Licensee is under no restriction,
contractual or otherwise, with respect to Licensee's right and capacity to enter
into and execute this Agreement, and that Licensee has full right and authority
to make the commitments made by Licensee under this Agreement. With
respect to any and all materials prepared by Licensee, and not supplied by
Owner, to be used in connection with Licensee's fulfillment of its
responsibilities under this Agreement, Licensee represents and warrants to Owner
that Licensee owns such materials or has otherwise obtained all pertinent rights
associated with such materials, including any and all payments required to be
made in connection with Licensee's use of such materials. With
respect to Licensee's representations and warranties, Licensee indemnifies and
holds Owner harmless from and against any and all claims, threats, suits,
penalties, liabilities, costs, including without limitation legal fees, costs
and disbursements, incurred, suffered, or expended by or threatened
against Owner pursuant to this Agreement and any claim of infringement of
copyright or trademark, or of any claim for payments pursuant to contract, or
applicable laws of the United States of America, or any other statutes or
comparable law of any other jurisdiction regulating the rights and use of such
materials.
11. Licensee
shall be entitled to sell and distribute, for a period of twelve (12) months
following the termination of this Agreement, all products covered hereunder in
Licensee's possession prior to such termination. At any time during
the term of this Agreement, including the twelve-month period referred to above,
Owner may purchase from Licensee, at wholesale price less royalty, a reasonable
quantity of products for resale.
12. During
the term of this Agreement, Licensee purchase and maintain a policy or policies
of comprehensive product liability insurance. Such insurance
shall afford minimum protection of not less than Two Million Dollars
($2,000,000) single limit coverage of bodily injury, property damage or
combination thereof. Owner shall be listed as an additional insured on
Licensee’s policy or policies of comprehensive product liability insurance,
Licensee shall provide Owner with current Certificates of Insurance evidencing
Licensee’s compliance with this Paragraph.
13. This
Agreement may be terminated only:
(a) By either party for substantial breach of any material
provision of this Agreement by the other, provided due notice has been given to
the other of the alleged breach and such other party has not cured the breach
within
thirty (30) days thereof; or
(b) By Owner:
(i) If Licensee ceases to function as a
going concern or makes an assignment for the benefit of creditors; if a petition
in bankruptcy is filed by or against the Licensee, resulting in an adjudication
of
bankruptcy;
(c) By
Licensee:
(i) If Owner
ceases to function as a going concern or makes an assignment for the benefit of
creditors; if a petition in bankruptcy is filed by or against the Licensee,
resulting in an adjudication of
bankruptcy;
(d) Upon termination of this Agreement all further rights and
obligations of the parties shall cease, except that Licensee shall not be
relieved of (i) its obligation to pay any moines due, or to become due, as of or
after
the date of termination, and (ii) any other obligation set forth in this
Agreement which is to take effect after the date of termination.
14. MISCELLANEOUS
(a) Counterparts. This Agreement may be
signed in one or more counterparts with the sameeffect as if
the signatures to each counterpart were upon a single
instrument, and all suchcounterparts together shall
be
deemed an original of this Agreement. Delivery of an executed
counterpart of the signature to this Agreement by telecopy shall be effective as
delivery of a manually executed counterpart of this Agreement.
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(b)
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Choice of Law; Venue;
Jurisdiction; Attorneys’ Fees. The parties
acknowledge and agree that this Agreement has been made in Arizona, and
that it shall be governed by, construed, and enforced
in accordance with the laws of the State of Arizona, without
reference to its conflicts of laws principles. The parties also
acknowledge and agree that any action or proceeding arising out of or
relating to this Agreement or the enforcement thereof shall be brought in
the Maricopa County Superior Court, and each of the parties irrevocably
submits to the exclusive jurisdiction of that Court in any such action or
proceeding, waives any objection the party may now or hereafter have to
venue or to convenience of forum, agrees that all claims in respect
of such action or proceeding shall be heard and determined only in that
Court, and agrees not to bring any action or proceeding arising out of or
relating to this Agreement or the enforcement hereof in any other
court. The parties also acknowledge and agree that either or
both of them may file a copy of this paragraph with any court as written
evidence of the knowing, voluntary and bargained agreement between the
parties irrevocably to waive any objections to venue or convenience of
forum, or to personal or subject matter jurisdiction. The
parties also acknowledge and agree that any action or proceeding referred
to above may be served on any party anywhere in the world without any
objection thereto. The parties also acknowledge and agree that the
prevailing party in any such action or proceeding shall be awarded the
party’s reasonable attorneys’ fees and costs (including, but not limited
to, costs of court).
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(c)
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Fair
Meaning. The parties agree that the wording of this
Agreement shall be construed as a whole according to its fair meaning, and
not strictly for or against any of the parties to this Agreement,
including the party responsible for drafting the
Agreement.
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(d)
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Entire
Agreement. The parties declare and represent that no
promise, inducement or agreement not herein expressed has been made, and
that this Agreement constitutes the entire Agreement between the parties,
and supersedes all prior negotiations, proposed agreements, or
understandings, if any, between the parties concerning any of the
provisions or contents of this
Agreement.
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(e) Mutual Drafting. The parties hereto
acknowledge and agree that they are sophisticatedand have been represented by
attorneys who have carefully negotiated the provisions ofthis
Agreement. As a consequence,
the
parties also agree that they do not intend that the presumptions of any laws or
rules relating to the interpretation of contracts against the drafter of any
particular clause should be applied to this Agreement and
therefore waive their effect.
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(f)
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Jurisdiction. Service
of Process. Any action or proceeding arising out of or relating
to this Agreement shall be governed by Section 12(b) of this Agreement,
and each of the parties irrevocably submits to the exclusive jurisdiction
of each court identified therein in any such action or proceeding; waives
any objection the party may now or hereafter have to venue or to
convenience of forum; agrees that all claims in respect of the
action or proceeding shall be heard and determined only in any such
court; and agrees not to bring any action or proceeding arising out of or
relating to this Agreement or any transaction contemplated hereby in any
other court. The parties agree that either or both of them may
file a copy of this paragraph with any court as written evidence of the
knowing, voluntary and bargained agreement between the parties irrevocably
to waive any objections to venue or to convenience of
forum. Process in any action or proceeding referred to in the
first sentence of this Section 12(f) may be served on any party anywhere
in the world.
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(g)
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Waiver; Remedies
Cumulative. The rights and remedies of the parties to
this Agreement are cumulative and not alternative. Neither any
failure nor any delay by any party in exercising any right power or
privilege under this Agreement will operate as a waiver of such right,
power or privilege, and no single or partial exercise of any such right,
power or privilege will preclude any other or further exercise of such
right, power or privilege, or the exercise of any other right, power or
privilege. To the maximum extent permitted by applicable
law,
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(i) no
claim or right arising out of this Agreement can be discharged by one party, in
whole or in part, by a waiver or renunciation of the claim or right unless in
writing signed by the other party;
(ii) no
waiver that may be given by a party will be applicable except in the specific
instance in which it is given; and
(iii) no
notice or demand on one party will be deemed to be a waiver of any obligation of
that party or of the right of the party giving such notice or demand to take
further action without notice or demand as provided in this
Agreement.
Provided
however, that notwithstanding the contents hereof, Owner’s rights and remedies
in the event of any breach or alleged breach of this Agreement by Licensee shall
be limited to Owner’s right, if any, to recover damages in an action at law, and
in no event shall Owner be entitled, by reason of any such breach or alleged
breach, to enjoin, restrain or seek to enjoin or restrain the distribution or
any other exploitation of the Technology licensed herein.
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(h)
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Notices. All
notices or other communications required or permitted to be given
hereunder shall be in writing and shall be deemed given to a party
when:
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(i) delivered
by hand or by a nationally recognized overnight courier
service (costs prepaid),
(ii) sent
by facsimile with confirmation of transmission by the transmitting equipment,
or;
(iii) received
or rejected by the addressee, if sent by certified mail, postage prepaid and
return receipt requested, in each case to the following:
(i) if to
Owner,
to: Fuel
Concepts, LLC
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▇▇▇▇▇
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Facsimile:(▇▇▇)
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(ii) if
to Licensee,
to: ▇▇▇▇▇
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Phone: (▇▇▇)-▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇)-▇▇▇-▇▇▇▇
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(i)
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Binding on Successors
and Assigns. This Agreement shall be binding on and shall inure to
the benefit of each party, its successors, and
assigns.
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(j)
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Third-Party
Beneficiaries. This Agreement is for the sole benefit of
the parties hereto and their permitted successors or assigns, and nothing
herein expressed or implied shall give or be construed to give to any
person, other than the parties hereto and such successors or assigns, any
legal or equitable rights, remedy or claim
hereunder.
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(k)
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Severability. If
any provision of this Agreement or the application of any such provision
to any person or circumstance shall be held invalid, illegal or
unenforceable in any respect by a court of competent jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision hereof.
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(l) Authority of
Signers. The parties represent and warrant that the person
whose signatureis set forth below on behalf of a party is fully
authorized to execute this Agreement onbehalf of that party.
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(m)
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Amendment. No
amendment to this Agreement shall be effective unless it shall be in
writing and signed by the parties
hereto.
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(n)
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Assignment.
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(i)
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By
Licensee. The Licensee may assign its rights, in whole or in
part, under this Agreement without prior consent of owner to any person or
entity including, without limitation any subsidiary, affiliated or
controlling corporation, any person owning or acquiring a substantial
portion of the stock or assets of the Licensee, or any partnership or
other venture in which the Licensee substantially participates, and any
such rights may be similarly assigned by any assignee of the Licensee. The
Licensee may also assign any of its rights to any of its sub-licensees,
distributors or sub-distributors.
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(ii)
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By
Owner. Owner may only assign this Agreement to a corporation,
limited liability company or other entity that is wholly owned and
controlled by Owner, provided such assignee accepts in writing
responsibility to perform all of Owner’s executory obligations pursuant to
this Agreement, and provided further that no such assignment(s) shall
excuse, discharge or otherwise relieve Owner from any of Owner’s
obligations under this Agreement. Owner also may assign the proceeds
derived from this Agreement, as and when
payable.
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(o) Cure for
Default. No failure by any party to perform any of its
obligation hereunder shall be
deemed a breach of this Agreement unless such failure is material, and the
party asserting such a breach delivers
written notice of the failure to the other party, expressly setting forth
the full particulars of the breach, and the breaching party
fails to cure the breach within thirty (30) days after delivery
of such notice, or to
commence to cure in the event that cure cannot be accomplished within such
a period of time.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and
year first above written.
"OWNER"
FUEL
CONCEPTS, LLC a Ohio Limited Liability Company
EIN#
▇▇-▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇
By: ▇▇▇
▇▇▇▇▇▇
Its:
Managing Member
"LICENSEE"
▇▇▇▇▇
YOUNG AND ASSOCIATES, INC., a Colorado Corporation
EIN#
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▇▇▇▇
▇▇▇▇▇▇▇▇
By: ▇▇▇▇
▇▇▇▇▇▇▇▇
Its:
President
"LICENSEE"
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, an Individual
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By: ▇▇▇▇▇▇
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EXHIBIT A
EXHIBIT B