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MANUFACTURING AND MARKETING
EXCLUSIVE LICENSE AGREEMENT
This Agreement made the 20th day of April, 1999.
BETWEEN:
XXXXXXX XXXXX
an individual
XXXXXXXX XXXXX
an individual
(The "Licensor")
AND:
CORONADO RESOURCES, INC.
a Corporation incorporated in the
State of Nevada
(The "Licensee")
WHEREAS:
A. The Licensor is the sole owner of proprietary technologies and
"Know-how" related to the Products hereinafter referred to as the
"Properties;" and
B. The Licensor warranties that the Trade Secrets related to the
Properties, have been maintained as Trade Secrets and are afforded the
protections under trade secret laws; and
C. The Licensor further warranties that the Properties and the related
Products are free of any lien, encumbrance, joint-ownership, or prior
commitment to a third party;
D. The Licensor wishes to grant and the Licensee desires the exclusive
rights to the Products, including but not limited to the development,
manufacturing, marketing, sale, sublicensing, and any and all usages of
the Products, in the United States and throughout the world;
E. The Licensor wishes to grant and the Licensee desires the exclusive
rights to use the Properties, as well as Licensor's "Know-how", related
to the development, manufacturing, marketing, sale, sublicensing, and
usage of the Products, and any future products derived from the
Properties, in the United States and throughout the world;
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NOW THEREFORE, in consideration of the premises and mutual promises, terms and
conditions and other good and valuable considerations, the parties do hereby
agree as follows:
1. DEFINITIONS
For the purposes of the Agreement:
1.1 "Products" shall mean all licensed proprietary property,
specified in Exhibit A1;
1.2 "Properties" shall mean all proprietary intellectual properties,
encompassed in the Trade Secret, set forth in Exhibit A1;
1.3 "Know-how" shall mean secret processes, formulae, trade secrets,
engineering, design, process and operating information,
inventions, developments, technical data and other scientific and
technical information relating to any process or method now owned
or controlled by the licensor or its Affiliate relating in any
way to the Products;
1.4 "Confidential Information": shall mean that part of the Technical
Information, whether written or oral which is:
1.41 not publicly known, and
1.42 annotated as "confidential" or "proprietary." Any
information which is not annotated as "confidential" or
"proprietary" shall be deemed to be in the public domain.
In addition, "Confidential Information" shall include
information disclosed by either party to the other party
in accordance with (Modifications and/or Improvements of
Products);
1.5 "Affiliate" whether of the Licensee or the Licensor, shall mean
any corporation, firm, association or other business owned or
controlled beneficially or directly or indirectly by the Licensee
or the Licensor, by its principal officers, directors,
supervisory employees or members of their families. Ownership of
50% or more of such business by any one of such persons shall
constitute beneficial ownership or control;
1.6 "Manufacturing Cost" shall mean the cost of the "Products" F.O.B.
the Licensee's manufacturing plant at point of shipment;
1.7 "Effective Date" shall mean the later of:
1.71 the date on which Licensor executes this Agreement,
1.72 the date on which Licensee executes this Agreement.
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2. GRANT OF RIGHTS
The Licensor grants the following rights to Licensee:
2.1 LICENSED TERRITORY
Exclusive Worldwide Rights: The Licensor grants the Licensee the
exclusive rights to the Products and the Properties in the United
States and throughout the world;
2.2 GRANTS RELATED TO LICENSOR'S PRODUCTS, PROPERTIES AND "KNOW-HOW"
2.21 Grants Related to Products. The Licensor grants the
Licensee the exclusive right to the Products, specified in
Exhibit A1, including but not limited to, the Licensee's
rights to the development, manufacturing, marketing, sale,
sublicensing, and any and all usages of the Products, in
the United States and throughout the World.
2.22 Grants Related to Properties. The Licensor grants the
Licensee the exclusive right to use the Licensor's
Properties, specified in Exhibit A1, including but not
limited to, the Licensee's rights to develop, manufacture,
market, sell and sublicense any and all products, having
derived and to be derived from the Properties, in the
United States and throughout the world;
2.23 Grants Related to "Know-how". The Licensor grants the
Licensee the exclusive right to the Licensor's "know-how"
trade secrets, and other technical information, related to
the Products and the Properties, to be conveyed to
Licensee in confidence, upon the consummation of this
Agreement.
3. CONSIDERATIONS TO LICENSOR
As considerations for the Grants, the Licensee agrees to provide the
Licensor with the following payments:
3.1 Equity Consideration
(i) 5,000 fully paid and non assessable shares of the
Licensees' Common stock with restrictions on sale.
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4. TERMS AND CONDITIONS
4.1 TERMS AND CONDITIONS RELATED TO THE GRANTS TO LICENSEE
4.11 Development of Technology. The Licensor agrees to assist
the Licensee to conclude the negotiations on technologies
under consideration as set out in Exhibit A1,
"Properties."
4.12 Marketing and Manufacturing Perimeters. The Licensee, at
its own costs, shall manufacture and market the Products
to potential client firms.
4.13 Best Effort by Licensee. The Licensee agrees to use its
best efforts and all due diligence to promote the sale of
the product and other products derived from the
Properties, in all licensed territories;
4.14 Training and Technical Assistance. To assist Licensee in
exercising its rights hereunder, Licensor agrees to
provide appropriate training and technical assistance to
Licensee, its employees and its permitted sublicensees, in
order for the Licensee to utilize the licensed technology
appropriately to their full potential. Such training and
assistance shall be provided by Licensor from time to
time, for training purposes at Licensee's facilities.
Travel costs, lodging and all related expenses incurred by
one party, in connection with sending its employees or
permitted sublicensees to the other party's location,
shall be paid in full by the party requesting the training
or technical assistance. However, the Licensee
acknowledges hereunder that said training obligation of
the Licensor may be limited by the availability of its
training and technical personnel;
4.15 When to Disclose "Know-how" by Licensor. Commencing ten
(10) days after the execution of this Agreement, the
Licensor agrees to make full disclosure of its "know-how"
to the Licensee's technical personnel, designated by the
Licensee. In addition, the Licensor agrees to promptly
inform the Licensee of any newly developed technical and
trade "know-how", which the Licensee is entitled to record
confidentially with any available medium;
4.16 Terms for "Know-how" Disclosure. All disclosures and
instructions shall be made or given at the Licensor's
locations, without cost to the Licensee, provided,
however, that at the Licensee's request, the Licensor may
from time to time send one of its qualified personnel for
the purpose of "know-how" disclosure, to the Licensee's
location, at the request of the Licensee, for not more
than 15 days, the related costs of which shall be assumed
by the Licensee;
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4.17 Confidentiality Maintained by Licensee. All disclosures of
the Licensor's "know-how" shall be confidential and shall
be held confidentially by the Licensee, without disclosure
to a third party, and shall remain confidential for a
period of five years. This obligation of non-disclosure
shall not apply to any information, which is already known
to the Licensee, at the time of disclosure, or which is
rightfully obtained from a third party without obligation
of confidence, or which is freely available in the public
domain. Licensee agrees that the Licensor has a
proprietary interest in its Confidential Information,
provided to the Licensee. During the term of the Agreement
and for five years thereafter, all proprietary disclosures
to the Licensee, its agents, and employees shall be held
in strict confidence by Licensee. Licensee shall disclose
the Confidential Information only to its agents and
employees, to whom the dissemination of confidential
information is deemed necessary, in order to properly
carry out their duties, designated by the Licensee, in its
execution of the License. During the term of this
Agreement and for five years thereafter, Licensee shall
not use the Confidential Information, except for the
purposes of exercising its rights and carrying out its
duties hereunder. This provision of the Agreement shall
also apply to any consultants or subcontractors of the
Licensee, that Licensee may engage in connection with its
execution of the License.
4.18 Product Quality Maintained by Licensee. In order to comply
with the Licensor's quality control standards, Licensee
agrees to maintain the quality of the Product, adhering to
specific quality control standards, in all aspects of
manufacturing, that the Licensor may from time to time
communicate to the Licensee, with respect to certain
product;
4.2 TERMS AND CONDITIONS RELATED TO THE CONSIDERATIONS TO LICENSOR
Interim Funding to Licensor. Licensee shall advance funds to the
Licensor, subject to written approval by the Licensee for
services required of the Licensor by the Licensee.
4.3 OTHER TERMS AND CONDITIONS
4.31 Ownership of New Product Development. The undersigned
mutually agree to the following ownership rights to new
product development:
(a) Joint Ownership. Any invention, protectable by
patent, copyright or other legal proprietary
protection, made or conceived during the term of
this Agreement, by one or more employees or
consultants of the Licensor jointly with one or
more employees or consultants of the Licensee,
shall be jointly owned, of which the parties agree
to grant the license of the related invention(s) to
each other without any payment, royalty or
consideration. Title to all related patents issued
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shall be jointly owned. All expenses incurred in
obtaining and maintaining such patents, shall be
jointly shared. In the event one of the parties
declines to apply for a patent, or alternatively
fails to pay their portion of the patent costs,
then the ownership of the patent shall be held by
that party, who wishes to file the patent and
assumes the related expenditures;
(b) Sole Ownership. Any invention, protectable by
patent, copyright or other legal proprietary
protection made or conceived solely by the
employees or consultants of either party of the
undersigned, shall become the sole property of such
party.
4.32 Right to Assign License Agreement. The Licensor and the
Licensee mutually agree not to assign the explicit rights
of the Licensor or the Licensee, as defined by this
Agreement, in whole or part, to a third party, whether by
operation of law or otherwise, without the prior written
consent of the other party, except that either party may
assign its rights hereunder to a successor, subsidiary or
affiliated corporation, without releasing the assignor and
the assignee, from the contractual responsibilities,
stipulated hereunder. Any assignment contrary to the terms
hereof shall be null and void and of no force or effect.
4.33 Non-Competition. The Licensor, during the term of this
Agreement agrees not to compete with the Licensee on the
Licensed Products;
5. WARRANTIES
5.1 LICENSOR'S WARRANTIES
5.11 Patents Maintained. The Licensor warranties that the
Patents and Patent Applications, related to the
Properties, are current, updated, and properly maintained
with respective patent agencies, with jurisdiction over
the Patent and Patent Applications; and
5.12 Properties Without Other Commitment. The Licensor further
warranties that the Properties and the related Products
are free of any lien, encumbrance, joint-ownership, or
prior commitment to a third party.
5.13 No Knowledge of Third Party Claims. Licensor represents
and warrants to Licensee that Licensor knows of no claim
by any third party of infringement by Licensor on such
party's trademark, copyright, trade secret or any other
intellectual property rights in the Territory of the
Licensee.
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5.2 LICENSEE'S WARRANTIES
5.21 Lawful Corporation. The licensee is a lawful U. S.
Corporation incorporated in the State of Nevada.
6. DEFENSE OF LICENSED INTELLECTUAL PROPERTIES
Pertaining to the infringement of patented licensed technology by a
third party, the Licensor of the technology and the Licensee shall
together determine whether to take any and all actions, legal or
otherwise, which are necessary to:
6.1 terminate infringements of any part of the Licensed
Products; or
6.2 terminate any attempt of imitation of any of the Licensed
Products, including without limitation, obtaining damages,
injunction and all other appropriate relief.
The legal costs of said intellectual property defense shall be the
responsibility of the Licensee and said Licensor. In addition, if the
defense is successful and damages are awarded by the court related to
the infringement, such damage award shall be shared equally between the
Licensor and the Licensee. However, if for any reason or for no reason,
a party of the undersigned elects not to incur the expenditure of the
legal defense, and the other party elects to carry solely said
expenditure, then accordingly, the damage award, if any, shall be
received by the party which has incurred the expenditure of the defense.
7. INDEMNITY
7.1 Indemnity by Licensor
7.11 Except as provided in subsection 7.12 below, Licensor of the
technology shall defend and indemnify Licensee from and against
any damages, liabilities, costs and expenses, including
reasonable attorney's fees and court costs, arising out of any
claim, involving Licensee's usages of the Licensed Products, or
manufacturing of the products, which infringe a valid
intellectual property right, or which represent a
misappropriation of a trade secret of a third party; provided,
however, that:
7.11a Licensee shall have promptly submitted to said
Licensor the related written notice of
infringement, along with reasonable cooperation,
information and assistance from the Licensee, in
connection with the case; and
7.11b The said Licensor shall have sole control and
authority with respect to the defense settlement,
or compromise thereof;
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7.12 The said Licensor shall have no liability or obligation to
Licensee under this Article with respect to any claim based upon:
7.12a Use of the Products by Licensee, its sublicensees
or its customers in an application or environment
for which such Products were not designed or
contemplated; or
7.12b Modifications and/or improvements of the Products
introduced by Licensee, its permitted sublicensees
or its customers.
7.13 In the event a claim is based partially on an indemnified
claim, described in subsection 7.11, and partially on an
non-indemnified claim described in subsection 7.12, any
payments and reasonable legal fees incurred in connection
with such claim are to be apportioned between the parties
in accordance with the degree of cause attributable to
each party.
7.2 INDEMNITY BY LICENSEE
7.21 Indemnity for Products. Licensee shall defend and
indemnify Licensor of the technology from and against any
damages, liabilities, costs and expenses, including any
reasonable legal fee and court cost, arising out of
injuries or damages caused by the Products, which are not
attributable to faulty materials or workmanship in the
manufacture, or the assembly of the Products by the said
Licensor and by the Licensee;
7.22 Offering Related Indemnity. The Licensee hereunder agrees
to indemnify and hold harmless the said Licensor, against
any and all losses, claims, damages, liabilities and
expenses, including any litigation arising from the
Licensee's Offering, or involving the subject matter
hereof, including but not limited to litigation by the
shareholders of the Licensee, upon the fulfillment of the
Licensor's contractual duties, except for willful default
or negligence perpetrated by the Licensor, involving this
Agreement. The Licensee agrees to assume the sole
responsibility toward its investors, in all matters
relating to the Offering.
8. DURATION AND TERMINATION
8.1 TERMS OF AGREEMENT
The Licensor shall offer the Grants to the Licensee, for a period
of ten (10) years, with automatic renewal each year thereafter,
subject to written notification, sixty (60) days in advance to
the renewal, by both parties of the undersigned.
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8.2 TERMINATION FOR CAUSE
This Agreement may be terminated by a party of the undersigned,
by serving written notice of termination to the other party,
which shall become immediately effective upon the documented
receipt of such notice of termination, after the occurrence of
any of the following events, unless a mutual remedy is reached,
by both parties of the undersigned in writing, to obviate the
termination, within ninety (90) days from the date of receipt of
the notice by a served party:
8.21 a material breach or default as to any obligation,
specified hereunder, by the Licensee or the Licensor, and
the failure of the notified party to promptly pursue a
reasonable remedy to cure such material breach or default;
or
8.22 the filing of a petition in bankruptcy, insolvency or
reorganization by the Licensee or the Licensor, or the
Licensee or Licensor becoming the subject to a composition
for creditors, whether by law or agreement, or the
Licensee or the Licensor going into receivership or
otherwise becoming insolvent; or
8.23 in the event of liquidation, caused by insolvency, the
Licensor and the Licensee hereunder agree to give the
first right of refusal to acquire the liquidation
properties of the other, subject to the rulings of the
court on this matter.
8.3 AFTER TERMINATION OR EXPIRY
The parties hereto agree to the following conditions, once this
Agreement is terminated or expires:
8.31 Terminate Usage of Products and Properties by Licensee.
Licensee shall cease any use or practice of the Licensed
Products and other products involving the Properties; and
upon termination or expiration of this Agreement, all
sublicenses granted by Licensee during the term of this
Agreement shall terminate. Licensee shall, at its own
expense, return to Licensor all Confidential Information
as soon as practicable after the date of such termination,
including original documents, drawings, computer
diskettes, models, samples, notes, reports, notebooks,
letters, manuals, prints, memoranda and any copies which
have been received by Licensee. All such Confidential
Information shall remain the exclusive property of
Licensor during the term of this Agreement and for five
(5) years thereafter.
8.32 Payment Obligations for Unpaid Consideration to Licensor.
Upon termination of this Agreement, nothing shall be
construed to release Licensee from its obligations to pay
Licensor any and all royalties or other accrued but unpaid
considerations due Licensor, incurred prior to the date of
such termination or expiration.
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9. DISPUTE RESOLUTION
The Licensor and the Licensee agree mutually hereunder to submit any and
all unresolved disputes, related to this Agreement, firstly, to the
American Arbitration Board (or to a licensed arbitrator mutually agreed
on by both parties) and abide by the binding resolution of said
arbitration. The venue, if any, of said arbitration board shall reside
in the State of Nevada. Since the offices of the Licensor and the
Licensee are situated at a considerable distance from each other, to
conserve time and costs, the Licensor and the Licensee agree herein to
conduct said arbitration by video conferencing, if permitted by the
arbitrator. The non-prevailing party in said arbitration shall be
responsible for the costs directly incurred by the arbitration,
including but not limited to the arbitrator's fees and telecommunication
fees. In addition, the Licensor and the Licensee agree mutually herein
that any dispute arising from the Agreement is limited to the
compensatory (not punitive) considerations of this Agreement, unless the
disputes arise from some unanticipated factors based on criminal
negligence or criminal act committed by a party, or malicious and
egregious refusal to participate in the dispute arbitration by a party,
in which case the ruling of a competent court with jurisdiction over the
matter shall be binding. In the unlikely eventuality of the requirement
of a court ruling, the venue of said court action shall reside in the
State of Nevada or alternatively, in the city where the Licensee has its
primary business. In said case, the ruling of a competent court, in said
venue, with jurisdiction over the matter shall be binding;
10. SEVERABILITY
If any provision of this Agreement is held in whole or in part to be
unenforceable for any reason, the Licensor and the Licensee agree
hereunder to notify the other party immediately of said unenforceable
provision(s) in the Agreement, and to modify this Agreement accordingly
to the benefit and consent of both parties. Furthermore, if any
provision of this Agreement is declared invalid or unenforceable by a
court having competent jurisdiction, it is mutually agreed that this
Agreement shall endure except for the part declared invalid or
unenforceable by order of such court. The parties shall consult and use
their best efforts to agree upon a valid and enforceable provision which
shall be a reasonable substitute for such invalid or unenforceable
provision in light of the intent of this Agreement.
11. FORCE MAJEURE
11.1 Either the Licensee or the Licensor shall be released from its
obligations hereunder to the extent that performance thereof is
delayed, hindered or prevented by Force Majeure as defined below,
provided that the party claiming hereunder shall notify the other
with all possible speed specifying the cause and probable
duration of the delay or non-performance and shall minimize the
effects of such delay or non-performance.
11.2 Force Majeure means any circumstances beyond the reasonable
control of the affected party;
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11.3 Without prejudice to the generality of Section 10.12a and without
being thereby limited, force majeure includes any one or more of
the following: acts or restraints of governments or public
authorities; wars, revolution, riot or civil commotion, strikes,
lockouts or other industrial action; failure of supplies of power
or fuel; damage to the premises or storage facilities by
explosion, fire , corrosion, ionizing radiation, radio-active
contamination, flood, natural disaster, malicious or negligent
act of accident; and breakdown or failure of equipment whether of
the affected party or others.
12. ENTIRE AGREEMENT, NO OTHER RELATION, COUNTERPARTS
This Agreement contains the entire Agreement between the Licensor and
the Licensee. No other agreement, or promise made or before the
effective date of the Agreement will be binding on the parties. No
modification or addendum to this Agreement is valid, unless mutually
endorsed and dated by both parties. Nothing contained herein shall be
deemed to create a joint venture, agency or partnership relationship
between the parties hereto. Neither party shall have any power to enter
into any contracts or commitments in the name of or on behalf of the
other party, or to bind the other party in any respect whatsoever, in
business outside of this Agreement. This Agreement may be executed in
any number of counterparts and by a different party hereto on separate
counterparts, each of which, when so executed, shall be deemed to be
original and all of which, when taken together, shall constitute one and
the same Agreement.
IN WITNESS WHEREOF, the Licensor and the Licensee have executed this Agreement
on the day and the year first above-written.
BY: /s/ Xxxxxxx Xxxxx Dated 4/20/99
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Xxxxxxx Xxxxx, an Individual
BY: /s/ Xxxxxxxx Xxxxx Dated 4/20/99
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Xxxxxxxx Xxxxx, an Individual
BY: /s/ Xxxxxxx Xxxxx Dated 4/20/99
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Coronado Resources, Inc.
Xxxxxxx Xxxxx, President, Director
BY: /s/ Xxxxxxxx Xxxxx Dated 4/20/99
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Coronado Resources, Inc.
Xxxxxxxx Xxxxx, Secretary, Director
LISTS OF EXHIBITS
EXHIBIT A1 Description
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Exhibit A1
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DESCRIPTION OF PROPERTIES
The Licensor's solar protection window film consists of a design of three layers
of polyester laminated sheets; one sheet coated with protective scratch
resistant material, one sub-strata sheet sputter coated with stainless steel,
and one sheet coated with a trade secret formula of blended light reflectors and
ultraviolet inhibitors. The trade secret formula of light reflectors and
ultraviolet inhibitors specifically provides sunlight fade protection up to the
visible light range at 400 nanometers.
The Licensor's solar protection window film secret processes, formulae, trade
secrets, engineering, design, process and operating information, inventions,
developments, technical data and other scientific and technical information
relating to any process or method now owned or controlled by the Licensor or its
Affiliate relating in any way to the Products shall remain a trade secret and
are non-disclosable.
