KNOW-HOW LICENSE AGREEMENT
THIS
KNOW-HOW LICENSE AGREEMENT (the "Agreement") is made as of the 22nd day of
January, 2006 (the "Effective Date"), by and between Mr. ▇▇▇ ▇▇▇, a Chinese
citizen (the "Licensor"), and Harbin OT Pharmaceutical Co., Limited, a Samoa
company (the "Licensee").
Each
of
the Parties above may hereinafter be referred to as a “Party” or collectively
referred to as the “Parties”.
WITNESSETH:
WHEREAS,
the Licensor is the owner of certain know-how titled “A
Kind of Broad-spectrum and Antibacterial Gynecological Suppository and Generic
Technique of Manufacture for Ointment”
(the
“Know-how”);
WHEREAS,
the Licensee desires to obtain from the Licensor and the Licensor desires
to
grant to the licensee to use such License, upon the terms and conditions
set
forth herein.
NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants
herein contained, the parties hereby agree as follows:
Article
1
Definitions
| 1.1 |
“License”
shall mean a non-exclusive, world-wide, revocable, perpetual right
and
license, under any and all copyrights, patents, trade secrets,
trademark,
and other intellectual property rights owned or hereafter acquired
by the
Licensor, to use the Know-How for the purposes of designing, developing
and manufacturing gynecological
suppositories.
|
| 1.2 |
“Licensed
Products” shall mean any service, product, or part thereof that is
manufactured with the benefit of the
License.
|
| 1.3 |
“Net
Sales” shall mean the gross amount billed by Licensee and its Sub-licensee
for Licensed Products.
|
| 1.4 |
“Reporting
Period” shall begin on the first day of each calendar year and end on the
last day of such calendar year.
|
| 1.5 |
“Sub-licensee”
shall mean any sub-licensee of the rights granted Licensee under
Article 2
of this Agreement.
|
| 1.6 |
“PRC”
shall mean the People’s Republic of
China.
|
1
Article
2
Grant
of
License
| 2.2 |
The
Licensor shall provide samples, drawings and other documents relating
to
the Know-how to the Licensee at the time the use of the Know-how
is
licensed to the Licensee.
|
| 2.3 |
The
Licensee shall have the right to grant sublicenses of the rights
granted
under Article 2.1 hereof to any third parties provided that a prior
written approval from the Licensor is
obtained.
|
Article3
Royalty
Licensee
shall pay to Licensor a running royalty of two percent (2.0%) on Net Sales
of
License Product by Licensee and Sub-licensee, Running royalties shall be
payable
for each Reporting Period and shall be due to Licensor within sixty (60)
days of
the end of each Reporting Period.
Article
4
Responsibilities
and Obligations
| 4.1 |
Unless
otherwise stipulated in this Agreement, the Licensor shall license
the use
of the Know-how to the Licensee according to Article 2 of this
Agreement.
|
| 4.2 |
The
Licensee may sub-license the Know-how to any third party with the
written
consent of the Licensor.
|
Article
5
Representations
and Warranties
| 5.1 |
Representations
and warranties by the Licensor:
|
| (1) |
The
Licensor possesses legal title on the Know-how licensed under this
Agreement and has the legal right to license the Know-how to the
Licensee;
|
| (2) |
The
Licensor's execution and performance of this Agreement will not
violate
any law or regulation, nor will it contradict with the any legal
document
to which he is a party or is otherwise bound. This Agreement will
constitute legal and binding obligations of the Licensor once duly
executed.
|
| 5.2 |
Representations
and warranties by the Licensee
|
2
| (1) |
The
Licensee is a company duly organized, validly existing and in good
standing under the laws of Samoa and has the requisite corporate
power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement.
|
| (2) |
The
Licensee's execution and performance of this Agreement will not
violate
any law or regulation, nor will it contradict with the Licensee's
articles
of association or any legal document to which it is a party or
is
otherwise bound. This Agreement will constitute legal and binding
obligations of the Licensee once duly executed.
|
Article
6
Proprietary
Rights
The
Licensee acknowledges and agrees that the Licensor has and will retain all
ownership title to the Know-How, including all patent rights, copyrights,
copyright registrations, trade secrets, trademarks, service marks, trademark
and
service ▇▇▇▇ registrations, related goodwill and confidential and proprietary
information. The Licensee will have no rights in the Know-How except as
explicitly stated in this Agreement.
Article
7
Confidentiality
| 7.1 |
Each
party shall not disclose any confidential information received
from the
other party for the purpose of executing or performing this Agreement,
and
shall not disclose, transfer or license such confidential information
to
any third party or use it for any purpose other than this Agreement,
unless previously authorized in writing by the provider for a period
of
five years from the date of disclosure hereunder, except as otherwise
permitted by this Agreement or with the other party’s prior consent. For
the purpose of this Agreement, confidential information shall not
include
information that(in each case as evidenced by written records or
other
competent evidence):
|
| (1) |
was
known to the receiving party at the time of disclosure hereunder
by the
disclosing party;
|
| (2) |
was
generally available to the public or was otherwise part of the
public
domain at the time of disclosure hereunder, or became generally
available
to the public or otherwise part of the public domain after disclosure
hereunder other than through any act or omission of the receiving
party in
breach of this Agreement;
|
| (3) |
became
known to the receiving party after disclosure from a source that
had a
lawful right to disclose such information to others;
or
|
| (4) |
was
independently developed by the receiving party without the use
of any
confidential information of the disclosing
party.
|
| 7.2 |
Upon
the termination of this Agreement, the receiver party shall return
any
document, material or software containing the confidential information
to
the provider for a period of five years from the date of disclosure
hereunder, except as otherwise permitted by this Agreement or with
the
other party’s prior consent. For or otherwise destroy the same at the
provider's request, and remove the confidential information from
any of
its memory equipment, and shall not continue to use the same confidential
information therefrom.
|
3
| 7.3 |
Both
Parties agree that this Article shall survive after this Agreement
is
expired or terminated unless otherwise agreed upon by the
parties.
|
Article
8
Innovation
and Upgrading of the Know-how
Both
the
Licensor and the Licensee have the right to innovate and upgrade by itself
the
Know-how and unless otherwise agreed by the parties, the innovated or upgraded
Know-how and related intellectual property shall remain the property of the
party innovating or updating the Know-how.
Article
9 Term and Termination
| 9.1 |
This
Agreement shall become effective on the date first above written,
and
shall continue to be effective for 5 years and shall thereafter
be
automatically renewed for 5 years, unless either party gives the
other a
notice of termination in written form at least three (3) months
prior to
the expiration of the original term or any such renewal term of
this
Agreement.
|
| 9.2 |
This
Agreement shall be terminated under the following
circumstances:
|
| (1) |
This
Agreement may be terminated upon expiration of the term of this
Agreement;
|
| (2) |
This
Agreement may be terminated by mutual agreement of the
Parties;
|
| (3) |
Failure
by either Party to comply with any of its material obligations
set forth
in this Agreement shall entitle the non-defaulting Party to give
the
defaulting Party a notice specifying the nature of the default
and
requiring the defaulting Party to cure its default. If such default
is not
cured within 30 days after such notice, the non-defaulting Party
shall be
entitled, without prejudice to any of its other rights under this
Agreement or available to it as law or in equity, to terminate
this
Agreement effective upon a notice of termination to the defaulting
Party.
|
| 9.3 |
Effect
of Termination
|
| (1) |
Expiration
or termination of this Agreement for any reason shall be without
prejudice
to any rights which shall have accrued to the benefit of either
Party
prior to such expiration or termination, and shall not relieve
either
Party from its obligations which are expressly indicated to survive
expiration or termination of this Agreement; such rights and obligations
include, without limitation, those under [] of this
Agreement.
|
4
| (2) |
On
nay termination of this Agreement (other than by virtue of expiration
of
its term) the Licensee promptly shall return to the Licensor all
tangible
licensed Know-how and other property owned by Licensor (whether
solely or
jointly with the Licensee) that are in the Licensee’s possession or
control.
|
Article
10
Miscellaneous
| 10.1 |
Unless
otherwise provided in this Agreement, either party shall not transfer
all
or part of its rights or obligations under this Agreement without
prior
written consent of the other party.
|
| 10.2 |
This
Agreement and the appendices hereto constitute the complete and
integrated
agreement between the two parties hereto and shall supersede any
prior
agreement, consent, understanding and communication upon the same
subject
of this Agreement between the two parties, whether oral or written.
|
| 10.3 |
The
illegality, invalidity or unenforceability of any provision of
this
Agreement shall not affect the validity and enforceability of the
other
provisions hereof.
|
| 10.4 |
This
Agreement or its appendices can only be amended by written agreements
signed by authorized representatives of both parties.
|
| 10.5 |
Unless
otherwise provided, the omission or delay by either party in exercising
any of its rights, powers or privileges under this Agreement shall
not
constitute its waiver of the same rights, powers or privileges,
and the
exercise of a single or a part of either party's rights, powers
or
privileges under this Agreement will not prejudice the exercise
of the
other rights, powers or privileges of the same party.
|
| 10.6 |
This
Agreement shall be governed by and construed in accordance with
the laws
of Samoa.
|
| 10.7 |
With
the consent of both Parties, all matters under dispute under this
Agreement may be referred to arbitration. The arbitrator’s award shall be
final and binding on both Parties. The dispute shall be submitted
to the
Hong Kong International Arbitration Centre (HKIAC) for arbitration,
which
shall be conducted in Hong Kong in accordance with the HKIAC Procedures
for arbitration in effect at the time of applying for
arbitration.
|
| 10.8 |
Headings
are for the convenience of reference only and shall not control
the
construction or interpretation of any of the provisions of this
Agreement.
|
| 10.9 |
This
Agreement may be executed in two or more counterparts, each of
which shall
be deemed an original for all purposes, but all of which together
shall
constitute one and the same
instrument.
|
5
In
witness whereof,
the
Parties hereto have caused this Agreement to be signed by their duly authorized
representatives as of the date and the year first above written.
| The licensor: | |||
| /s/ Zhu ▇▇▇ | |||
|
▇▇▇ Lei |
|||
| The Licensee |
| Harbin OT Pharmaceutical Co., Limited (Samoa) | |||
| /s/ Zhu ▇▇▇ | |||
|
▇▇▇ Lei |
|||
| Title: Director |
6