Exhibit 10.5
LICENSE AGREEMENT
This Agreement is made and is effective this 30th day of September, 2002.
BETWEEN: AMANASU ENERGY CORPORATION, a Nevada corporation
with its office at 701 5th Avenue, 36th floor,
Xxxxxxx, Xxxxxxxxxx 00000, X.X.X.
( hereinafter called " Licensee " )
AND: SANYO KOGYO KABUSHIKI GAISHA, A Japanese corporation with
its office at 2-39-13 Xxxxxxxxxxxxx, Xxxxxxxxx,
Xxxxx 000- 0000, Xxxxx.
( hereinafter called " Licensor # 1" )
AND: EVER GREEN PLANET CORPORATION, a Japanese corporation with
its office at 985- 0853 Wiyagiken, Ishinomakishi,
Xxxxxxxxxx, Xxx Xxxxxxxxx 000- 0, Xxxxx
( hereinafter called " Licensor # 2 " )
WHEREAS Licensor # 1 and Licensor # 2 are both referred to collectively as "
Licensors " from here onwards.
WHEREAS, Licensors are in the business of developing, manufacturing and
marketing a state of the art hot water boiler system to extract heat energy from
waste tires, referred to as the Product (see definition of Product in Section
1).
AND WHEREAS Licensee wishes to establish production and marketing centers
throughout the world for the production and marketing of such Product invented,
and presently produced and marketed by Licensors.
AND WHEREAS Licensors and Licensee have subject to the terms and conditions set
forth in this Agreement, agreed to the licensing to the Licensee of the
Technology ( see definition of Technology in Section 1 ) for the production and
marketing of the Product throughout the world. For such exclusive rights, before
October 30, 2002, Licensee will allot and issue to :
(1) Licensor # 1 a total of 500,000 common shares of Licensee and 30,000,000
Japanese Yen ( equivalent to US $250,000 ),
(2) Licensor # 2, a total of 100,000 common shares of Licensee, and
(3) 50,000 common shares of Licensee to Motohiko Kogetsu, whose address is
4-41-10-104 Nishi-Shinjuku, Shinjuku - xx, Xxxxx 000- 0000, Xxxxx.
NOW THEREFORE this Agreement witnesses that in consideration of the premises
hereto and covenants and agreements hereinafter contained, the parties hereto
covenant and agree to each other as follows :
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SECTION 1 - DEFINITIONS
1.00 Technology relates to the Product produced from such a technology described
below.
1.02 " Licensed Product " means any manner of chemical or other derivative that
is used by the Technology and/or Patent/Patent Rights ( if applicable ),
for the production of the Product. The Product that is ready for production
and marketed is referred to as FireBirdPDC5000, which is a hot water boiler
that collects heat from waste tires. It is a safe, non polluting and highly
efficient boiler for a variety of uses. It uses petrol product wastes to
generate heat.
1.03 " Sub-license " means the right to enter into agreements with third parties
to assign all or part of this Agreement.
1.04 " Gross Receipts " means the total of the gross invoice prices of
Licensee's Product without any deductions and allowances for discounts,
tariff, duties, excise taxes, transportation charges, credits to customers
for rejected Products, etc. In relation to Licensed Method means any amount
received or receivable by Licensee for the sale and or use from Third
Parties of the right to practice " Licensed Method ".
1.05 " Third Parties " means any person, corporation or entity recognized by law
that is dealing at arms length.
SECTION 2 - GRANT OF LICENSES
2.00 Subject to the conditions of this Agreement, Licensors grant to Licensee
the exclusive right to use the Technology to make, have made, use and sell
the Licensed Product and practice Licensed Method on a world wide basis.
2.01 It is understood that Licensee shall have the right to issue sub-licenses
to Third Parties on such terms and conditions as Licensee in its discretion
may bona-fide determine in all areas of the world.
2.02 To the extent applicable, such sub-licenses shall include all the rights of
and obligations due to Licensors that are contained in this Agreement.
SECTION 3 - ROYALTY
3.00 Licensee is to pay Licensors, a royalty equal to two ( 2 ) percent of
Licensee's Gross Receipts from Licensed Product or Licensed method payable
to Licensors, within sixty (60) days upon receipt of royalty by Licensee or
from Sub-licensees.
3.01 All monies due to Licensors shall be payable in U.S. funds. The earned
royalties will be determined in the foreign currency of the country in
which such are made and converted into equivalent U.S. funds, and remitted
likewise.
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3.02 If at any time legal restrictions prevent the prompt remittance of any or
all of the royalties by Licensee with respect to any country of sale,
Licensee shall have the right and option to make such payment by depositing
the amount thereof in local currency at Licensors' account in a bank or
other depository in such country.
SECTION 4 - REPRESENTATIONS, WARRANTIES AND COVENANTS OF
LICENSORS
4.00 Licensors hereby represents and warrants to, and covenants with Licensee,
now and during the term of this Agreement that ;
(a) Licensors have the sole and exclusive right to grant the rights,
licenses and authorities granted to Licensee herein and they are the
sole and exclusive owner of all Patent/Patent Rights ( if applicable).
(b) The licenses herein granted are unencumbered by any lien, mortgage,
prior assignment, charge, other encumbrance, commitment or interest of
any other person.
(c) Licensors will not directly or indirectly enter into, negotiate or
solicit any agreement or arrangement for the creation or imposition of
any encumbrance or restriction of any nature which may be inconsistent
with the rights, licenses and authorities granted to Licensee herein.
(d) To the best of Licensors' knowledge, the claims for the Technology
and/or Patent/Patent Rights ( if applicable), do not infringe any
Canadian or U.S. patents or patent applications of any other party.
(e) Licensors are corporations and they have the power and capacity to
enter into this Agreement and carry out its terms to the full extent.
(f) Licensors and their employees will not disclose to any person other
than the legal advisors of the parties hereto, any information
pertaining to Licensee or this Agreement that has not been generally
disclosed to the public.
SECTION 5 - LICENSEE'S OBLIGATIONS
5.00 Licensee shall keep books and records showing all Licensed Product and
License Method used and/or sold under the terms of this Agreement. Such
records shall be open for inspection by representatives or agents of
Licensor at reasonable times.
5.01 Licensee shall at all times diligently proceed with the manufacture and
sale of Licensed Product and Licensed Method and shall earnestly and
diligently market same and in quantities sufficient to meet market demands.
Licensee shall be entitled to exercise prudent and reasonable business
judgment in meeting its due diligent obligations.
5.02 Licensee covenants and agrees that during the life of this Agreement it
shall :
(a) In the manufacturing of the Licensed Product, contract/ employ or
cause to be employed, those persons or contractors who have the
necessary skills, care and experience to manufacture the Licensed
Product, to a reliability and safety standards that are established by
Licensors.
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(b) Conduct product testing both prior to and after commercial production
to ensure the reliability and safety of the Licensed Product and
Licensed Method, and shall furnish Licensors with results of such
testing.
(c) In the manufacturing of Licensed Product it shall use only those parts
and materials that meet or exceed the specification established by
Licensors.
(d) At all reasonable times and on reasonable notice, permit Licensor
and/or authorized representatives of Licensors to inspect any
facilities in which any parts or materials are manufactured.
(e) Properly report to Licensors any occurrence involving the use of
Licensed Product or Licensed Method that in the reasonable judgment of
Licensee may give rise to a claim against the License, Licensors or
any user of Licensed Product or Licensed Method. It shall continue to
keep Licensors abreast of any subsequent report, investigation,
inquest or legal proceeding arising therefrom.
(f) Comply with the patent, and all applicable laws, regulations, decrees
or requirements of those countries in which Licensed Product is sold
or Licensed method is practiced.
SECTION 6 - LIFE OF AGREEMENT
6.00 Unless otherwise terminated by operation of law or acts of the parts in
accordance with the terms of this Agreement, this Agreement shall be in
force from the effective date recited on page one, and shall remain in
effect for thirty ( 30 ) years.
SECTION 7 - TERMINATION BY LICENSORS
7.00 If Licensee should violate or fail to perform any term or covenant of this
Agreement, then Licensors may give written notice of such default ( Notice
of Default ) to Licensee. If Licensee shall fail to repair such default
within ninety days of the effective date of such notice, Licensors will
have the right to terminate this Agreement and the Licenses herein, by a
second written Notice ( Notice of Termination ) to Licensee.
If Notice of Termination is sent to Licensee, this Agreement shall
automatically terminate on the effective date of such Notice. Such
termination should not relieve Licensee of its obligation to pay any
royalty at the time of such termination and shall not impair any accrued
right of Licensors.
SECTION 8 - TERMINATION BY LICENSEE
8.00 Licensee shall have the right to terminate this Agreement by giving notice
in writing to Licensors. Such notice of termination of this Agreement shall
be effective ninety ( 90 ) days from the effective date of such notice.
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8.01 Any termination pursuant to the above paragraph, shall not relieve Licensee
of any obligation or liability accrued hereunder prior to such termination
or rescind anything done by Licensee or any payments made to Licensors
hereunder prior to the time such termination became effective, and such
termination shall effect in any manner any rights of Licensors arising
under this Agreement prior to such termination. Furthermore, upon
termination of Licensee, all rights of Licensee hereunder shall be
surrendered effective upon such date that termination becomes effective.
SECTION 9 - PATENT PROSECUTION AND MAINTENANCE
9.00 The following sub-sections will only be applicable, if and when, Patent(s)
are applied for, at the sole discretion of Licensors.
9.01 Licensors shall diligently prosecute and maintain the United States and
Canadian Patents ( if any ) comprising Licensor's Patent Rights using
counsel of its choice. Licensors shall provide Licensee with copies of all
relevant documentation so that Licensee may be informed and apprised of the
continuing prosecution. Licensee agrees to keep this documentation
confidential and shall at the request of Licensee, apply for patent
protection in any country that Licensee markets the Licensed Products and
Licensed Method.
9.02 Licensors shall use all reasonable efforts to amend any Patent application
to include claims reasonably requested by licensee to protect the products
contemplated to be sold under this Agreement.
9.03 Licensors shall co-operate with Licensee in applying for an extension of
the term of any Patent included with Licensors' Patent Rights ( if any ).
Licensors agree to execute such documents and take such additional action
as Licensee may reasonably request in connection therewith.
9.04 The cost of preparing, filing, prosecuting and maintaining all Patent
applications contemplated by this agreement, shall be borne by Licensors.
SECTION 10 - PATENT / PATENT RIGHTS INFRINGEMENT
10.00 In the event that Licensee shall learn of substantial infringement of any
Patent /Patent Rights licensed under this Agreement, Licensee shall notify
Licensors in writing and shall provide Licensors with reasonable evidence
of such infringement.
Both parties shall use their best efforts in co-operation with each other
to terminate such infringement without litigation.
10.01 Licensee may request that Licensors take legal action against the
infringement of Licensors' Patent/Patent Rights. Such request shall be made
in writing and shall include reasonable evidence of such infringement and
damages to Licensee. If the infringing activity has not been abated within
thirty (30) days following the effective date of such request, Licensors
shall have the right to :
- commence legal suit on their own account; or
- refuse to participate in such suit, and Licensors shall give notice of
their election in writing to Licensee by the end of the ninetieth
(90th) day after receiving notice of such request from Licensee.
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Licensee may thereafter bring suit for patent infringement if and only
if Licensors elects not to commence legal suit ( other than as nominal
party plaintiff ), and if the infringement occurred during the period.
However, in the event Licensee elects to bring legal suit in
accordance with this paragraph, Licensors may thereafter join such
legal suit at its own expense.
10.02 Such legal action is decided upon shall be at the expense of the party on
account of whom suit is brought, and all recoveries recovered thereby,
shall belong to such party, provided, however, that legal action brought
jointly by Licensee and fully participated in by both, shall be at the
joint expense of the parties, and all recoveries shall be shared jointly by
them in proportion to the share of expense paid by each party.
10.03 Each party agrees to co-operate with the other in litigation proceedings
instituted hereunder but at the expense of the party on account of whom
suit is brought. Such litigation shall be controlled by the party bringing
the suit, except that Licensors may be represented by counsel of their
choice pursuant to Licensors' determination in any suit brought by
Licensee.
SECTION 11 - COMMON COVENANTS OF LICENSOR AND LICENSEE
11.00 Governing Law & Submission to Jurisdiction
This Agreement shall be interpreted and construed in accordance with the
laws of Nevada of the United States, and the parties hereto submit to the
jurisdiction of the Courts of Nevada, but the scope of any patent or patent
applicable shall be governed by the applicable laws of the country of such
patent or patent application.
11.01 Conformity with Local Laws
Any provision or provisions of this Agreement which in any way contravene
the law of any State or Country in which this Agreement is effective, shall
in such State or Country, to the extent of such contravention of law, be
deemed severable and shall not affect any provision or provisions of this
Agreement. The parties shall each at its own expense in its own countries,
take such steps as may be required to satisfy the laws and requirements of
the respective countries with respect to declaring, recording, or otherwise
rendering this Agreement valid.
11.02 Arbitration
Both parties shall act in good faith and utilize their best efforts to
resolve any dispute, controversy or difference arising in connection with
this Agreement, to their mutual satisfaction.
All disputes, controversies or differences arising in connection which are
not resolved mutually, shall be finally settled by arbitration under the
Rules of Conciliation and Arbitration of the International Chamber of
Commerce, by a panel of three arbitrators each of whom shall speak fluent
English and shall be appointed in accordance with the said Rules. Any award
made by the arbitrators shall be made as promptly as possible and shall
state the reasons for their decisions taking into account all aspects of
the dispute, controversy or difference.
Any such arbitration shall be held in Nevada. The laws to be applied by the
arbitrators shall be the laws of the United States. The decision of the
arbitrators shall be final and binding on both parties. Judgment upon any
award rendered by the arbitrators may be entered in any court having
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jurisdiction or application may be made to such court for a judicial
acceptance of the award, and an order of enforcement as the case may be.
Such an arbitration shall be a condition precedent to the institution of
any such suit, claim, action or other legal proceeding arising in
connection with this Agreement.
11.03 Notice
Any notice, consent, request, demand or other communication required or
permitted to be given or delivered under this Agreement, shall be in
writing and delivered by registered mail, facsimile or telegram, addressed
to the party at its address first set out above. Each notice shall be
deemed to have been received upon delivery to the addressee, provided that
such notice shall be deemed to have been received upon expiration of 12
days from the date of mailing, or within 24 hours if sent by facsimile or
telegram.
11.04 Assignment and Succession
Licensee can assign or transfer this Agreement or any of its rights or the
performance of its obligations under this Agreement, without the prior
written consent of Licensors. All rights and obligations of the parties
shall be binding upon and shall endure to the benefit of their respective
successors and permitted assigns.
11.05 Entire Agreement
This Agreement constitute the entire agreement between the parties hereto
relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, negotiations and discussion,
whether oral or written, of the parties, and there are no general or
specific warranties, representations or other agreements by or among the
parties in connection with the entering of this Agreement or the subject
matter hereof except as specifically set forth herein.
11.06 Unenforceable terms
If any term, covenant or condition of this Agreement or the application
thereof to any party or circumstance shall be invalid or unenforceable to
any extent, the remainder of this Agreement or application of such term,
covenant or condition to a party or circumstance other than those to which
it is held invalid or unenforceable, shall not be affected thereby and each
remaining term, covenant or condition of this Agreement, shall be valid and
shall be enforceable to the fullest extent permitted by law.
11.07 Counterparts
This Agreement may be executed in several counterparts, each of which when
so executed, shall be deemed to be an original and such counterparts shall
constitute one and the same instrument and notwithstanding their date of
execution, shall be deemed to bear date as of the date of this Agreement.
11.08 Force Majeure
The parties to this Agreement shall be excused from any performance
required hereunder if such performance is rendered impossible or unfeasible
due to any catastrophes or other major events beyond their reasonable
control, including, without limitation, war, riot, and insurrection, laws,
proclamations, edicts, ordinances or regulations; strikes, lock-outs or
other serious labour disputes; and floods, fires, explosions, or other
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natural disasters. When such events have abated, the parties' respective
obligations hereunder shall resume.
11.09 Waiver
No provision of this Agreement shall be waived and no breach excused,
unless such waiver or consent excusing the breach shall be in writing
signed by the party to be charged with such waiver or consent. A waiver of
a provision of this Agreement shall not be construed to be a waiver of a
further breach. All rights, remedies, and benefits contained in this
Agreement shall be cumulative and none of them shall be a limitation or
exclusion of any other remedy, right, or benefit provided by this Agreement
or by law.
IN WITNESS WHEREOF the parties hereby executed this Agreement as of the day,
month and year first above written.
Signed, Sealed and Delivered
by Lessor # 1 in the presence of : SANYO KOGYO KABUSHIKI GAISHA
Karuo Ferada
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Witness
/s/ Yotaro Uchida
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Address Yotaro Uchida - President
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Address
Signed, Sealed and Delivered
by Lessor # 2 in the presence of : EVER GREEN PLANET CORPORATION
Xxxxxxxx Xxxxxx
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Witness
/s/ Tanokura Harumasa
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Address Tanokura Harumasa
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Address
Signed, Sealed and Delivered
by Lessee in the presence of : AMANASU ENERGY CORPORATION
Xxxxxxx Xxxxxxxxx
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Witness
/s/ Xxxxxxx Xxxx
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Address Xxxxxxx Xxxx - President
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Address
