DATED THIS 8th DAY OF December 1997
BETWEEN
EVERBLOOM INTERNATIONAL TECHNOLOGY PTE LTD
AND
EVERBLOOM MUSHROOM (UK) LIMITED
LICENCE AGREEMENT
Contact person:
▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
Managing Director
Tel: ▇▇▇▇▇▇▇
Fax: ▇▇▇▇▇▇▇
THIS AGREEMENT is made on the 8th day of December 1997 BETWEEN EVERBLOOM
INTERNATIONAL TECHNOLOGY PTE LTD, a company incorporated in the Republic of
Singapore and having its registered office at ▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (hereinafter referred to as "Everbloom") of the one part AND
EVERBLOOM MUSHROOM (UK) LIMITED of United Kingdom, formerly PM 172 LIMITED,
whose registered office is at ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
(hereinafter referred to as "EM UK") of the other part;
WHEREAS
(A) Everbloom has the Know-how/Technology to cultivate Shiitake Mushroom
using the Process as set out in USA Patent Nos. 4987698, 4542608 and
4833821, European Patent Nos. 0107911 and 0248636 and British Patents
Nos. 0107911, 2191074 and 2223922 and the Materials to produce Logs and
Spawn.
(B) EM (UK) is desirous of cultivating Shiitake Mushroom and producing Logs
and Spawn.
(C) Everbloom hereby agrees to grant to EM (UK) the right to cultivate
Shiitake Mushroom and to produce Logs and Spawn in United Kingdom and
to supply the technical know-how and data and to provide the necessary
assistance upon the terms and conditions hereinafter appearing.
IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 Whenever used in this Agreement the following terms shall be deemed to have
the following meanings unless the context otherwise requires:-
"Business" shall mean the cultivation of Shiitake Mushroom
and production of Logs and Spawn by EM (UK).
"Chemical Mix" shall mean the nutrients developed by
Everbloom for the cultivation of Shiitake
Mushrooms and production of Logs and Spawn.
"Documentation" shall mean the written Technical Information
and Improvements pertaining to Product and
the plant, machinery and raw materials
required for production thereof and shall
include designs, drawings, manuals,
brochures, pamphlets, slides, photographs,
audio and video tapes, advertisement
materials and promotional aids.
"Effective Date" shall mean the date on which this Agreement comes
into operation.
"Everbloom's shall mean a suitably qualified consultant to be
Consultant" made available by Everbloom for the purpose of
providing the services referred in Clause 4 hereof.
"Improvements" shall mean future improvements relating to Technical
Information and Documentation.
"Know-how/ shall mean all information and data including
Technology" formulae designs specifications techniques procedures
plans discoveries and inventions (whether
patented or not) as used at any time by
Everbloom in growing, marketing and selling
Shiitake Mushroom at their facilities in
Singapore and by any other licensees
wherever legally possible, which pertain to
the use and exploitation of the Process or
the cultivation or marketing and sale of Shiitake
Mushroom by means of the Process, together with any
further information or data pertaining
thereto as may be available with Everbloom.
"Logs" shall mean raw materials comprising
preformulated materials such as chopped wood
and/or sawdust and Chemical Mix mixed with
water in a ratio of approximately ______
grams of dry substrate to ______ grams of
water produced according to Everbloom's
Know-how/Technology.
"Materials" shall mean Logs, Spawn and Chemical Mix.
"Parties" shall mean Everbloom and EM (UK).
"Process" shall mean the process to produce fungi of
the species Lentinus edodes by the means
described in USA Patent Nos. 4987698,
4542608 and 4833821, and European Patent
Nos. 0107911 and 0248636 and British Patent
Nos 0107911, 2191074 and 2223922, copies of
which are available upon receipt.
"Product" shall mean Logs, Spawns and Shiitake Mushrooms.
"Plant" shall mean a facility in United Kingdom
designed and approved by Everbloom and to
produce ___________ metric tons of fresh
Shiitake Mushrooms per annum, using the
Technical Information, Documentation and
Improvements provided by Everbloom
hereunder. The land and investment for the
Plant will be committed by EM (UK).
"Shiitake Mushroom" shall mean the fungi of the species Lentinus edodes
cultivated according to the Process or any part
thereof.
"Spawn" shall mean the spawn of the species Lentinus edodes
produced according to Everbloom's Know-how/Technology.
"Technical Information" shall mean the information,
know-how, data, formulae, specifications,
techniques, designs, procedures, plans,
discoveries and inventions (whether patented
or not) available with Everbloom and
relating to the following, in so far as the
same has been commercially tested and used
and found to be successful, including (but
not limited to):-
(a) design, engineering, fabrication,
erection and installation of plant,
machinery and equipment required for
the production of Product and
sources of supply thereof;
(b) production processes and methods,
operating conditions, pollution and
quality control and testing and
product development in respect of
Product; and
(c) chemical mixes and all other
materials and ingredients to be used
in the production of the Product
including instructions on the
required quantities and
characteristics thereof and their
treatment in the production of
Product as well as sources of supply
thereof.
1.2 In this Agreement, unless the context of subject matter otherwise
requires:-
(a) The singular includes the plural and vice versa. Words
importing any gender include the other gender. Words importing
persons include corporations and incorporated bodies of
persons and vice versa;
(b) References to clauses and schedules are references to Clauses
and Schedules to this Agreement;
(c) References to agreements and deeds include all renewals,
extensions and amendments thereof; and
(d) The headings to the clauses herein are for convenience of
reference only and do not form part of this Agreement or
affect the interpretation hereof.
2. SCOPE OF LICENCE
In consideration of EM (UK)'s agreement to pay the amounts specified
herein, Everbloom hereby grants to EM (UK) the right to use the
Know-how/Technology in the production of Logs and Spawn and the
cultivation of Shiitake Mushroom in United Kingdom.
3. FINANCE & ACCOUNTING
3.1 It is the responsibility of EM (UK) to operate and maintain proper
accounting procedures in accordance with generally accepted accounting
principles.
3.2 EM (UK) shall keep at its registered office true and accurate records,
accounts books and data ("Business Records") which shall accurately
reflect all particulars relating to the Business and shall submit to
Everbloom such information and reports concerning the Business in such
form as may be specified by Everbloom.
3.3 EM (UK) shall submit quarterly statements of sales to Everbloom and
Royalties payable within 15 days after the end of each quarter.
3.4 EM (UK) shall submit financial reports relating to the Business on a
half-yearly basis.
3.5 EM (UK) shall submit annual audited accounts of the Business within 90
days after the year end.
3.6 EM (UK) shall preserve and keep all Business Records for a period as
required by local tax laws.
3.7 Everbloom reserves the right to appoint a firm of independent
accountants to review the records of the Business pertaining to the
calculation of Royalties payable.
4. TECHNICAL INFORMATION ETC, TO BE PROVIDED BY EVERBLOOM
4.1 Everbloom shall furnish to EM (UK) all Technical Information,
Documentation and Improvements and render all assistance necessary to
enable EM (UK) to successfully establish the Plant and to produce and
cultivate the Product.
4.2 Without prejudice to the generality of the foregoing, Everbloom shall,
from time to time, provide to EM (UK), complete and uptodate Technical
Information, Documentation and Improvements:-
(a) to enable EM (UK) to design, engineer, erect, install and
commission the Plant and all machinery and equipment therein
and to successfully produce, develop and sell the Product;
(b) to enable EM (UK) to procure suitable machinery, equipment and
spares at reasonable prices and to fabricate and manufacture
the same indigenously in United Kingdom;
(c) with regard to import substitution in respect of Plant,
machinery, equipment and ingredients for the Product;
(d) with regard to operational safety and maintenance procedures
of the Plant and quality control, testing and product
development in respect of Product and ingredients, packaging
etc as required by the markets from time to time;
(e) to enable EM (UK) to procure in the international markets,
alternative raw materials, consumables and other imputs
necessary for production of Product at reasonable prices;
(f) with regard to measures to ensure the the project will not
cause any pollution problems or environmental hazards and that
the effluents will meet statutory requirements, and
(g) with regard to the conversion into useful byproducts, of spent
materials including logs after harvesting of mushrooms.
4.3 All Documentation to be furnished by Everbloom hereunder shall be in
English and in the metric system.
4.4 Everbloom shall furnish the Technical Information and Documentation as
aforesaid within thirty (30) days of the Effective Date.
5. TRAINING OF EM (UK) PERSONNEL
5.1 During the tenure of this Agreement, Everbloom shall train EM (UK)
personnel at the Plant as well as at other suitable factories for the
proper use and exploitation of Technical Information, Documentation and
Improvements furnished hereunder and for development of new products
and articles. For the purpose, Everbloom shall deploy, as and when
necessary, sufficiently knowledgeable and experienced consultants.
5.2 Any such consultants deployed by Everbloom shall, during their stay in
United Kingdom, observe all rules and regulations that apply to EM (UK)
employees. Likewise, any EM (UK) personnel being trained outside United
Kingdom by Everbloom shall observe all rules and regulations that apply
to Everbloom's employees in those countries respectively.
5.3 The EM (UK) personnel to be trained, the Everbloom consultants to be
deployed and the periods of such training and deputation etc, shall be
as agreed by the parties from time to time.
5.4 EM (UK) will meet the actual expenses of the Everbloom consultants
deployed in United Kingdom, in respect of their travel, board and
lodging; but no daily or other fees or remuneration will be paid to
them.
6. MANAGEMENT OF PLANT
6.1 During the tenure of this Agreement, Everbloom shall deploy its
personnel in such numbers as are necessary to supervise, oversee and
manage the operation of the Plant.
6.2 All costs and expenses incurred or accrued to the personnel shall be
borne and paid by EM (UK). The costs and expenses shall include, but is
not limited to, remuneration, salary, board, lodging, travel,
transportation and other reasonable amenities.
7. PAYMENTS
7.1 In consideration of the rights and licence granted, and duties and
obligations undertaken by Everbloom herein, EM (UK) shall pay Everbloom
a technology fee of (pound)100,000.00 upon the signing of this
Agreement net of all taxes (including but not limited to withholding
taxes), dues, charges and expenses, which shall be for EM (UK)'s sole
account.
7.2 As consideration for the continual transfer of the Know-how/Technology,
EM (UK) shall pay Everbloom a royalty of 10% on profit before tax.
7.3 Such royalties due under Clause 7.2 above shall be due immediately
after the end of the quarter and payable within 30 days from that date
without the need for a demand from Everbloom. Any late payment shall
attract interest calculated at the rate of 1.5% per month from the due
date.
7.4 Time will run from the date on which the production of sawdust and logs
commences.
7.5 Any improvements to the Know-how/Technology shall be passed on to EM
(UK) without any further requirement of payments of fees or royalties.
7.6 The payments to be made by EM (UK) to Everbloom hereunder is also
subject to the required approvals of the Government of United Kingdom
and to such modifications as may be made by them.
8. MARKETING OF PRODUCTS
Everbloom agrees to use their best endeavours to assist EM (UK) to
market the Products for sale internationally. Such sales shall be under
the brand "Everbloom".
9. WARRANTY
9.1 Everbloom warrants that the Technical Information, Documentation and
Improvements furnished by it hereunder shall be of the latest and best
type and quality and which in the experience, studies and tests of
Everbloom have proved to be sufficient and technically and economically
efficient and practical for the production of the Product and for
establishment of a Plant of the specified capacity. Based on current
specifications, production should be not less than 150 grams of fresh
mushrooms from 1 kilogram of sawdust log.
9.2 Everbloom further warrants that all rights in the Technical
Information, Documentation and Improvements furnished hereunder are
proprietory and belong to Everbloom and that the use and exploitation
thereof by EM (UK) and/or its sub licensees pursuant hereto will not
infringe or violate any rights of any third parties.
9.3 Everbloom hereby indemnifies and shall keep indemnified EM (UK) and its
sub licensees from and against all liabilities, expenses, losses, costs
and damages that may be incurred by them on account of the infringement
of the rights of any third party rights arising from the use and
exploitation of the Technical Information, Documentation and
Improvements and the production and cultivation of the Product.
10. SUPPLY OF RAW MATERIALS AND COMMERCIAL SERVICES
10.1 In the event that EM (UK) requires any raw materials for the production
and cultivation of the Product and makes a written request for the
same, Everbloom shall supply the same for such prices and on such other
terms as may mutually be agreed upon.
10.2 Everbloom will assist EM (UK) in the sourcing/supply of machinery and
consumables required to set up and operate the Plant,as and when called
upon to do so by EM (UK).
10.3 The raw materials shall include the Chemical Mix, which shall be
supplied by Everbloom at the price of S$4.00 per kilogram FOB Singapore
11. CONFIDENTIALITY
Each Party hereto undertakes to keep secret all information of a
confidential or secret nature supplied by one Party to the other
pursuant to this Agreement and agrees not to disclose any of such
information to the public or to any third party without the express
prior consent in writing of the supplying Party and each Party in
receipt of such information is to ensure that it discloses such
information only to responsible employees and consultants whose duties
are in furtherance of the objectives of this Agreement and which cannot
be fulfilled without use by such Party of the information and where it
is relevant to those duties and who are under binding obligations to
keep secret such of the information as is necessarily disclosed to
them.
12. ASSIGNMENT
12.1 This Agreement shall enure to the benefit of the successors and assigns
of Everbloom.
12.2 EM (UK) shall not be entitled at any time to assign, transfer or
encumber this Agreement or any part thereof or the benefit thereof or
control thereof or any benefit hereunder except with the previous
written consent of Everbloom such consent not to be unreasonably
withheld.
13. DEFAULT AND TERMINATION
13.1 In the event that EM (UK) shall become insolvent or make an assignment
for the benefit of creditors or be placed under judicial management or
if other proceedings for the appointment of a receiver of EM (UK) or
other custodian for EM (UK)`s business or assets if filed and is
consented to by EM (UK) and is not dismissed within thirty (30) days or
a receiver or other custodian is appointed or if proceedings for
composition with creditors under any state or federal law shall be
instituted by or against EM (UK) or if the real or personal property of
EM (UK) shall be sold after levy thereupon by any sheriff, receiver,
then upon the occurance of any said events, EM (UK) shall be deemed to
be in default under this Agreement and all rights granted to EM (UK)
hereunder shall thereupon terminate without any need for notice to EM
(UK) and this Agreement shall thereupon be terminated.
13.2 Without prejudice to the generality of the foregoing EM (UK) shall be
in default under this Agreement:-
(a) if EM (UK) fails to submit when due financial reports which
Everbloom is entitled to under this Agreement.
(b) if EM (UK) fails to comply substantially with any of the
requirements imposed upon it by the Agreement.
13.3 EM (UK) shall have the right to terminate this Agreement if
Everbloom shall be in default of any of the following conditions:-
(a) in the event that Everbloom is liquidated, dissolved or
becomes insolvent or bankrupt or is placed under judicial
management or the control to receivers or trustees.
(b) if Everbloom is unable to conduct the business contemplated by
this Agreement.
In such event, the formulae for the Chemical Mix, which is held by
▇▇▇▇▇▇▇▇ ▇▇ & Partners of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇/▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, shall be made available to EM (UK) on written demand.
In addition, should the Government of United Kingdom so require, the
formula for the Chemical Mix shall be sent by ▇▇▇▇▇▇▇▇ ▇▇ & Partners to
EM (UK)'s nominated patent agents/attorneys upon receipt of a written
request together with documentary proof of the Government's
requirement.
14. RIGHTS AND OBLIGATIONS OF PARTIES ON TERMINATION OR EXPIRATION
Upon the termination or expiration of this Agreement all rights granted
herein by Everbloom to EM (UK) shall revert to Everbloom.
15. RELATIONSHIP OF PARTIES AND INDEMNIFICATION
15.1 It is hereby declared that EM (UK) is an independent contractor and not
an agent, legal representative, joint venturer, partner, employee or
servant of Everbloom and is not empowered to act on Everbloom's behalf
in any manner. EM (UK) agrees that Everbloom is not in any way a
fiduciary of EM (UK).
15.2 EM (UK) shall indemnify Everbloom, its officers, directors, employees,
agents affiliates, successors and assigns, against:
(a) any and all claims, damages or liabilities based upon, arising
out of, or in any way related to any negligence or act or
omission by EM (UK) or any its agents, contractors, servants,
employees or licensees, and any obligation of EM (UK) incurred
pursuant to any provision of this Agreement.
(b) any or all fees (including attorney's fees), costs and other
expenses incurred by or on behalf of Everbloom in the
investigation, defence or prosecution of any and all claims.
16. NOTICES
16.1 All notices or other communication to Everbloom contemplated by the
terms of this Agreement shall be in writing and sent by registered
mail, return receipt requested, addressed to Everbloom at ▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (or such other address as Everbloom
shall designate in writing) or by facsimile or to such address
confirmed by registered mail.
16.2 All notices to EM (UK) required by the terms of this Agreement shall be
in writing and sent by registered mail, addressed to EVERBLOOM MUSHROOM
(UK) LIMITED at ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ or such other address as EM (UK) shall designate in writing, or
by facsimile or to such address confirmed by registered mail.
16.3 If by registered mail, any notice shall be deemed to have been given
when received.
17. TERMS
17.1 This Agreement embodies all the terms and conditions agreed upon
between the Parties hereto and supercedes and cancels in all respects
all previous agreements and undertakings between the Parties hereto
with respect to the subject matter hereunder whether such be written or
oral.
17.2 Nothing in this Agreement shall constitute a partnership between the
Parties nor constitute one Party the agent of the other Party and vice
versa.
18. NO WAIVER
No omission or delay on the part of any party in exercising its rights
under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise by any Party of any such right preclude the
further or other exercise thereof or the exercise of any other right
which it may have.
19. SEVERANCE
In the event that any provision of this Agreement shall be void or
unenforceable by reason of any provision of applicable law it shall be
deleted and the remaining provisions hereof shall continue as amended
so as to give effect to the spirit of this Agreement so far as
possible.
20. COSTS AND EXPENSES
Unless otherwise expressly stated herein all costs and expenses
incurred by either Party in the performance of this Agreement shall be
borne by the Party incurring the same.
21. AMENDMENTS
The conditions contained in this Agreement may be varied, altered,
amended or deleted and fresh conditions embodied from time to time by
mutual consent in writing and duly signed and executed by the Parties
hereto and such writing would then be deemed for all purposes to be
part and parcel of this Agreement and to be read and interpreted so and
neither Party would contest the validity thereof.
22. GOVERNMENTAL APPROVALS
22.1 The Parties hereto undertake to obtain from the respective Governments
all approvals and authorisations necessary or required for the
implementation of the provisions of this Agreement.
22.1 Should approval and or authorisation from the respective Governments be
subsequently withdrawn for any reason whatsoever, this agreement shall
automatically be terminated unless otherwise agreed between the
Parties.
23. APPLICABLE LAW/JURISDICTION
23.1 This Agreement shall in all respects be governed by and construed in
accordance with the laws of the Republic of Singapore and the Parties
agree to submit to the non-exclusive jurisdiction of the courts of the
Republic of Singapore.
IN WITNESS WHEREOF the parties have duly executed this Agreement as of
the date and year written above.
SIGNED by ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ )
for and on behalf of EVERBLOOM )
INTERNATIONAL TECHNOLOGY )
PTE LTD in the presence of :- )
SIGNED by ▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇ )
for and on behalf of EVERBLOOM )
MUSHROOM (UK) LTD )
in the presence of :- )