LICENCE AGREEMENT (this “Agreement”), entered in Montreal, Quebec, Canada, as of September 11, 2008.
LICENCE AGREEMENT (this “Agreement”), entered in
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, as of September 11, 2008.
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BETWEEN:
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OCEANUTRASCIENCES Inc, a
corporation duly incorporated in Canada, having its head office at ▇▇, ▇▇▇
▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, represented for the purpose hereof by
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, duly authorized as he so
declares;
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(hereinafter
called "ONS")
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AND:
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BIO-SOLUTIONS CORP, a
corporation duly incorporated under the laws of Nevada, .having its head
office at ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
represented for the purpose hereof by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, duly authorized as
he so declares;
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(hereinafter
called “BIO”)
WHEREAS ONS has rights in
certain technology known as Nutra-Pro 80-20;
WHEREAS ONS is interested in
granting license rights to market and sell the ONS Product (as defined below)
and to use the Trademarks (as defined below) in the Territory (as defined
hereinafter);
WHEREAS ONS owns or has access
to the equipment, facilities and has the required skills to manufacture or have
manufactured the ONS Product in accordance with applicable
standards;
WHEREAS BIO desires to
acquire license and Trademark rights to the ONS Product in the Territory, upon
the terms and conditions herein set forth in this Agreement;
WHEREAS BIO wishes to retain
the services of ONS to supply it with the ONS Product upon the terms and
conditions set forth this
Agreement;
NOW
THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND
INTENDING TO BE LEGALLY BOUND, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. DEFINITIONS
(Defined Terms). Each time the following terms are used in
this agreement and as far as the context does not clearly give them another
meaning, they shall have the following meaning:
1.1. “Affiliates” shall mean any
legal entity (such as a corporation, partnership, or limited liability company)
that controls is controlled by, or under common control with, BIO or ONS, as
applicable. For the purposes of this definition, the term "control"
means (i) beneficial ownership of at least fifty percent (50%) of the voting
securities of a corporation or other business organization with voting
securities or (ii) a fifty percent (50%) or greater interest in the net assets
or profits of a partnership or other business organization without voting
securities.
1.2. "Agreement" shall mean this
License Agreement.
1.3. “ONS Marketing Resources” means
all currently existing and future marketing materials, research reports,
advertisements, educational materials, art work, designs or other materials
related to ONS Product that are developed by or for ONS, and used by ONS or its
predecessor to promote or market ONS Product in the Territory, and all currently
existing and future Published Studies (as defined below). BIO is free
to use the ONS Marketing Resources at its entire discretion, provided however
that it acknowledges that ONS makes no representations or warranties with
respect to the accuracy of the information, the regulatory compliance or the
validity of the claims found in the ONS Marketing Resources that were prepared
by or for ONS.
1.4. "ONS Product" means Nutra-Pro
80-20, in its pure form,
1.5. "Effective Date" means the date
of this Agreement as set forth above.
1.6. “Finished Package” 5 kilos
seal pack
1.7. “Nutra-pro 80-20” See Schedule
A
1.8. “Materials” means any
packaging, labels and/or advertisement relating to the ONS Product, any claim
relating to the functions and characteristics of the ONS Product, or the dose
and dosage in respect of the ONS Product used in the Territory, as well as any
future changes related to any of the aforementioned, including Promotional Items
and Product Packaging, but not including ONS Marketing Resources.
1.9. “Patents” means all currently
existing and future US, Canadian and international patents, patent applications,
and any future patents and patent applications relating to Nutra-Pro 80-20, or
the ONS Product, including any other patents and other intellectual property
protection resulting from reissues, reexaminations, extension, modifications or
divisions of such patents, as well as any rights granted pursuant to patents
pending.
1.10. “Product Packaging” means the
packaging and labels designed by BIO for the ONS Product in the Territory that
incorporate the Trademarks for the applicable ONS Product required or permitted
by this Agreement.
1.11. “Promotional Items" means any
type of promotional material or object used to entice the use and sale of the
ONS Product in the Territory, but excludes ONS Marketing Resources.
1.12. “Published Studies” means
published research materials; reports and clinical studies related to
non-prescription cholesterol management applications of any ONS
Product.
1.13. "Purchase Order" means the form
on which BIO shall order the ONS Product as described in Section 3
below.
1.14. "Territory" North America,
animal feed.
1.15. "Trademarks" means ONS
currently existing and future US, Canadian and international trademarks, logos
and trade names, including, but not limited to “Nutra Pro 80-20” and their
representations in the form of designs, that are related to the ONS Product, as
they may be modified from time to time as well as all applications and
registrations related thereto, including, but not limited to, those identified
on Schedule B
to this Agreement which is hereby incorporated herein by this
reference.
1.16. The
“Animal Feed” means
sales and marketing to the following vet, hand users, feed company all market
for animal feed.
2. LICENCE
RIGHTS
2.1. ONS
hereby grants to BIO, and BIO hereby accepts, the right to licence the ONS
Product during the Term, including co-packaging, marketing, selling and
distributing, in the Territory, subject to the terms and conditions set forth
below and otherwise set forth in this Agreement.
(a) This
licence right shall be exclusive with respect to the Territory
(b) BIO shall
at all time uses its best efforts in order to actively promote the sales of the
ONS Product pursuant to this Agreement and develop the market for the ONS
Product in the Territory.
2.2. BIO
hereby acknowledges that any claims made in the packaging and/or advertisement
relating to the ONS Product which is created or used by BIO, any claim relating
to the functions and characteristics of the ONS Product made in the Materials
used in the Territory, as well as any future changes related to any of the
aforementioned, shall be the sole responsibility of BIO, except for the use of
Published Studies or the use of claims made or information provided in the
Published Studies. All such Materials used in the Territory shall be
subject to the prior written approval of ONS, with the sole objective being to
ensure that they adequately protect ONS trademarks and copyrights, with such
approval not being unreasonably withheld... ONS shall not
require BIO to make any changes to the Materials that do not affect ONS
trademarks, copyrights, or ONS trademark policies that have been applied
worldwide in a consistent manner to all distributors of the ONS
Product. BIO shall submit to ONS all proposed Materials at
least thirty (30) days prior to publicly releasing any such
Materials. Except as otherwise provided herein, upon termination or
expiration of this Agreement, each of BIO and ONS agrees not to use or advertise
any trademarks, logos or other property rights of the other party.
2.3. ONS
hereby grants BIO the right to use the Trademarks in connection with the
promotion, marketing and sale of ONS Product in the Territory and the right to
use the applicable Trademarks in relation with the Promotional Items and Product
Packaging, ONS Marketing Resources, and the Materials in the Territory, the
whole without any consideration other than as provided herein. ONS
hereby grants BIO the right to use the Trademarks in the Territory that relate
to the ONS Product in relation with the Promotional Items and the Materials in
the Territory, the whole without any consideration other than as provided
herein. Notwithstanding the foregoing, the rights granted under this
Section 2.3 are subject to revocation or modification if the license granted
under Section 2.1 above is revoked or modified as provided in Sections 2.1(a),
2.1(b), or 2.1(c).
2.4. ONS shall
make available to BIO, and BIO may use, all ONS Marketing
Resources. In addition, subject to the limitations set forth above,
BIO may design, create and use any Promotional Items and Product Packaging in
connection with the marketing and sale of the ONS Product; provided, however,
any such Promotional Items and Product Packaging shall be subject to the
approval of ONS, with the sole objective being to ensure that they adequately
protect ONS trademarks and copyrights, which approval shall not be unreasonably
withheld.
2.5. BIO may
not grant any licence rights related to the ONS Product to third parties without
the prior written approval of ONS, such approval being at ONS sole discretion;
provided, however, that BIO may, with the approval of ONS, grant all or any of
the licence rights granted to BIO under this Agreement to any of BIO’s
Affiliates and to the third parties that are listed on Schedule C to this
Agreement, such ONS approval shall not unreasonably be withheld.
2.6. Any license rights
granted by BIO shall include provisions that require the licensee to be subject
to the terms and conditions of this Agreement, including, but not limited to
Sections 2.2 and 9.3 of this Agreement. Any licence agreement
granted by BIO shall include a provision pursuant to which, upon termination of
this Agreement for any reason whatsoever, the licence agreement will be either
terminated or assumed by ONS, at ONS sole discretion. No
distributor shall be granted a term greater than the term of this
Agreement. Should this Agreement be terminated, BIO’s ability to
grant further licence rights shall immediately terminate. BIO shall
be solely liable for any and all such distributors.
2.7. As
consideration for the license granted hereunder, BIO agrees that it will pay ONS
the following amounts:
after the
execution and delivery of this Agreement by both BIO and ONS, a payment
of One hundred Fifty Thousand Canadian dollars
(CDN$150,000.00).
50,000.00$
on the 31 July 2008
50,000.00$
on the 31 October 2008
50,000.00$
on the 31 December 2008
3. SUPPLY
3.1. ONS
hereby undertakes and agrees to manufacture or have manufactured all ONS Product
required by BIO, in accordance with the orders received from BIO, such orders
being in the form of a Purchase Order (a “Purchase Order”) having terms
and conditions to be established in good faith, to the satisfaction of the
parties, acting reasonably, the whole in accordance with the Specifications for
the ONS Product which are annexed hereto as Schedule “A”, which
shall be subject to modification as described in Section 3.2 below (the “Specifications”). Schedule A hereto
sets forth the Specifications for Nutra-Pro 80-20 and shall be modified from
time to time, to add Specifications related to any other ONS Products that may
be sold by BIO under this Agreement, or any modification made pursuant to
Section 3.2 below. Each Purchase Order shall be for at least one
hundred kilograms (100 Kg) of the ONS Product. After the first
anniversary of this Agreement, ONS, may, at its sole option, supply the ONS
Product only in bulk powder and ONS will have no further obligation to supply
finished product to BIO. ONS may reject any Purchase Order that does
not meet the requirements established by this Agreement; provided, however, that
ONS shall have been deemed to accept each Purchase Order, unless it provides BIO
with a written objection to such Purchase Order within ten (10) days of receipt
of such Purchase Order, and sets forth with reasonable particularity the grounds
for the rejection of such Purchase Order.
3.2. ONS may,
at any time, modify the Specifications of the ONS Product in a reasonable
manner, provided that such modification does not substantially alter the nature
of the ONS Product, subject to ninety days (90) prior written notice of same
being given to BIO, such notice to be accompanied by an explanation of such
modification with any applicable regulatory documents from the country of
manufacture. Any such
modification shall apply only with respect to orders received after the
expiration of such ninety (90) day prior notice period.
3.3. The ONS
Product shall conform to all applicable United States laws, rulings, rules,
standards and regulations relating to the manufacturing and storing of the ONS
Product.
3.4. ONS shall
ship the quantities of the ONS Product specified by BIO in any Purchase Order
within sixty (60) days from the date of the approval of any Purchase Order, in
the form of powder in sealed bags, as specified in the BIO Purchase Order,
subject to the provisions of Section 3.1 above. The delivery
lead-time shall be revisited at such time as ONS’s manufacturing facility is
operational. The Finished Boxes shall be included in a retail
shipper box that includes 10 Finished sealed bags. ONS shall have manufactured
and use the Product Packaging designs and specifications provided by BIO to
package and label the ONS Products. Unless prohibited by applicable
law, BIO may identify itself (using its trade names or trademarks) on Product
Packaging and Promotional Items, as the manufacturer of the ONS
Product. Where required by law, ONS shall be identified on Product
Packaging and Promotional Items as the manufacturer of the ONS
Product..
3.5. All
orders shall be shipped F.O.B. ONS facility to the address or addresses
indicated by BIO in the Purchase Order.
3.6. Prior to
the signing of this Agreement, BIO shall provide ONS with a forecast of the
quantities required for the Territory for the remainder of 2008, including the
projected delivery date and quantity of bulk ONS Product
required. BIO shall use its best efforts to provide accurate
forecasts, and shall update such forecasts each subsequent quarter for the
duration of the Agreement. ONS will have the right to refuse any
Purchase Order that exceeds by 51% or more the most recent forecast provided by
BIO to ONS; unless BIO has provided ONS with an updated forecast not less than
thirty (30) days prior to the date of such Purchase Order.
3.7. The ONS
Product sold to BIO pursuant to the terms hereof will be set at a price of
CDN$126.00 per kilogram of bulk powder 5 kilos seal bag, pre-tax and FOB the ONS
facility. ONS may increase this price at any time upon one hundred
and twenty (120) days prior written notice to BIO, provided that such written
notice is accompanied by a reasonable explanation of the justification for the
price increase. Any such price increase shall apply only with respect
to Purchase Orders given after the expiration of such 120-day notice
period. Notwithstanding the foregoing, the parties agree that the
initial price set forth above will be guaranteed for the first year of this
Agreement.
3.8. The terms
of payment will be net 30 days from the date of invoicing, such date of
invoicing being the same as the shipment date of the ONS Product.
3.9. Title to
the ONS Product sold and risk of loss of such ONS Product passes to BIO upon
delivery of such ONS Product to the carrier at ONS facility.
3.10. BIO shall
be obligated to order from ONS, for the Territory, the following minimum
quantities of the ONS Product for the periods indicate below:
|
Period
|
Total
Annual Amount of ONS Product Purchased by BIO
|
|
First
year (starting at the Effective Date)
|
1,250
Kg
|
|
Second
year
|
-----------
Kg*
|
|
Third
year
|
-----------Kg*
|
* ONS and BIO agree for 6 months open
starting at the effective date, to establish needs for year 2 and
3.
Should
BIO fail to order the minimum quantity specified during any period, ONS may, but
shall not be required to, by giving BIO written notice within thirty (30) days
after the end of the applicable period to either, (i) change the licence rights
and the right to the Trademarks granted to BIO, or (ii) terminate this
Agreement. Notwithstanding the foregoing, BIO shall have thirty (30)
days from receipt of such written notice, to cure any such failure, by ordering
such amount of additional ONS Product as required to make up the deficiency, in
which case this Agreement shall continue as if such deficiency had not
occurred.
3.11. If this
Agreement is renewed for one or more additional terms as provided in Section 7.2
below, prior to the commencement of each additional renewal term, the parties
shall negotiate in good faith, a reasonable increase in the minimum quantities
required for each one-year period during each renewal term.
4. CONTRACTUAL WARRANTY;
LIMITATION OF LIABILITY
4.1. ONS
warrants to BIO that all ONS Products sold to BIO will materially conform to the
Specifications established from time to time for the ONS Products, in accordance
with sub-section 3.1. ONS warrants to BIO that all ONS Products sold
to BIO will comply with all applicable laws as set forth in Section 3.3 of this
Agreement. ONS will replace in a commercially reasonable period at no
cost to BIO, any ONS Product suffering from a material non-compliance with these
aforementioned Specifications subject to the limitations contained in Section
4.2.
4.2. The
present product warranty does not cover defects resulting from use that is
non-compliant with the instructions of ONS, improper use (including use that
does not conform to the dosage recommended and approved by ONS), improper
storage or handling after the ONS Product has been shipped from the ONS
facility, or any modification or transformation of the ONS Product after the ONS
Product has been shipped from the ONS facility.
4.3. The
product warranty contained in Section 4.1 is granted on an exclusive basis and
replaces any other product warranty that may have been provided, whether
verbally or in writing, implied or expressed.
4.4. NO
EXPRESS AND NO IMPLIED WARRANTIES WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR USE, OR OTHERWISE OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE WHICH
ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, SHALL APPLY TO THE ONS
PRODUCTS SOLD TO AND BY BIO, AND NO WAIVER, ALTERATION, OR MODIFICATION OF THE
FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN
EXECUTIVE OFFICER OF ONS.
4.5. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME OR LOST
REVENUE. EXCEPT FOR THE INDEMNITY PROVISION CONTAINED IN ARTICLE 9,
AS OTHERWISE EXPRESSLY PROVIDED FOR ELSEWHERE IN THIS AGREEMENT OR AS MAY BE
PROHIBITED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO THE INDEMNIFICATION
PROVISIONS PROVIDED FOR HEREIN, EACH PARTY'S AGGREGATE CUMULATIVE LIABILITY
HEREUNDER FOR ALL DIRECT DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT
NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY
ACTION IS BROUGHT, SHALL BE LIMITED TO THE AMOUNT RECEIVED BY ONS FROM BIO WITH
RESPECT TO THE ONS PRODUCT PROVIDED HEREUNDER DURING THE THREE (3) MONTH PERIOD
IMMEDIATELY PRECEDING SUCH CLAIM.
4.6. Except in
the case of gross negligence by ONS, in no case shall ONS be liable to BIO or
any other person for damages, notably loss of profit, loss of savings or
fortuitous or consequential damages resulting from the marketing of the ONS
Products in the Territory.
4.7. Except in
the case of gross negligence by BIO, in no case shall BIO be liable to ONS or
any other person for damages, notably loss of profit, loss of savings or
fortuitous or consequential damages resulting from the manufacturing of bulk
powder ONS Product in the Territory.
5. REPRESENTATIONS AND
WARRANTIES OF ONS
ONS represents and warrants the
following to BIO:
5.1. ONS is,
and at all relevant times shall be, the sole and exclusive owner or has the
exclusive rights to the entire unencumbered right, title and interest in and to
the Patents and the Trademarks (collectively, the “Intellectual Property
Rights”), free and clear of any liens, charges, encumbrances, and has all
of the rights and power necessary, and the exclusive rights, to enter into this
Agreement and grant the licenses and other rights granted hereunder, and to
fulfill all of its obligations hereunder, and ONS has all the necessary power to
enter into this Agreement, grant the licenses and other rights provided in this
Agreement, and to fulfill all of its obligations under this Agreement, and is
not subject to any restriction that would prevent ONS from doing any of the
foregoing.
5.2. The
exercise by BIO, BIO Affiliates and their authorized licensee of the rights
granted herein shall not contravene the patents, trademarks, industrial designs,
copyrights or other rights belonging to third parties.
5.3. To the
actual knowledge of ONS, the exercise by BIO, BIO Affiliates and their
authorized licensee of the rights granted herein will not contravene any laws,
regulations or government directives in the Territory.
5.4. There are
no pending or threatened actions, suits, proceedings, assessments,
investigations or claims pending before any court or by any federal, provincial,
municipal or other governmental department, commission, board, bureau or agency
related to the Intellectual Property Rights or the ONS Product, or that could
adversely effect the consummation of the transactions contemplated by this
Agreement, have a material adverse effect on BIO or the rights granted to BIO
under this Agreement, and to the best of ONS knowledge, there is no event or act
based on which such actions, suits, proceedings, assessments, investigations or
claims may be initiated.
5.5. ONS is
not a party to any contract or agreement or subject to any charter or other
corporate restriction that could unfavourably affect the free and complete
exercise by BIO of the rights granted to it hereunder.
5.6. Neither
ONS or any other person or entity with rights to the ONS Product or the
Intellectual Property Rights will grant any right to any third party that is or
would be inconsistent BIO with the rights granted to BIO under this
Agreement;
5.7. The
Intellectual Property Rights are valid and enforceable.
5.8. All
safety risks, adverse events and other serious side effects associated with the
ONS Product of which ONS is aware have been disclosed to BIO, and should ONS
become aware of any future adverse events or serious side effects any where in
the world, it will notify BIO in writing within seventy two (72)
hours. .
5.9. ONS
acknowledges that each of the representations and warranties given herein are
essential considerations for BIO. Accordingly, subject to Section 4 above, ONS
undertakes to indemnify BIO, BIO Affiliates and their clients as well as their
respective officers, directors, shareholders, agents, employees and
representatives, in respect of any damage, loss or defect to the extent
resulting from the inaccuracy or falseness of any or all of the representations
and warranties contained herein and any legal suit, procedure, claim, demand,
contribution or judgment, any fees and legal expenses resulting from the
preceding.
5.10. To the
best of ONS knowledge, Nutra-Pro 80-20 is safe for its intended
use.
6. REPRESENTATIONS AND
WARRANTIES OF BIO
BIO represents and warrants the
following to ONS:
6.1. BIO has
all the necessary powers to conclude this Agreement.
6.2. To the
actual knowledge of BIO, the importation, packaging, and/or marketing by BIO of
the ONS Product in the Territory shall not contravene the patents, trademarks,
industrial designs, copyrights or other rights belonging to third
parties.
6.3. To the
actual knowledge of BIO, the importation of the ONS Products to the Territory by
BIO shall not contravene any laws, regulations or government directives in the
Territory or of the United States of America. BIO specifically
assumes all liability and responsibility BIO for determining and complying with
all governmental exportation and importation issues.
6.4. BIO’s
importation, packaging, storage, transportation, labelling, marketing and all
other activities related to the ONS Product in the Territory shall conform in
all respects to present and future laws, rulings, rules, standards and
regulations related applicable to ONS Product by the applicable authorities. BIO
shall provide ONS with any evidence that ONS may reasonably request in this
respect.
6.5. BIO will
only produce bulk of ONS Product. Furthermore, BIO will market Nutra-Pro 80-20
as a product with a daily-recommended dose of …. Grams. Any
modification to the amount of ONS Product in the feed mixed, or the frequency of
daily administration of Nutra-Pro 80-20 will require the prior written
authorization of ONS, which will be free to withhold such authorization at its
sole discretion.
6.6. BIO
acknowledges that each of the representations and warranties given herein are
essential considerations for ONS. Accordingly, BIO undertakes to indemnify ONS,
ONS Affiliates, and their clients as well as their respective officers,
directors, shareholders, employees, agents and representatives in respect of any
damage, loss or defect to the extent resulting from the inaccuracy or falseness
of any or all of the representations and warranties contained herein and any
legal suit, procedure, claim, demand, contribution or judgment, fees and any
legal expenses resulting from the preceding.
6.7. In the
event that BIO becomes aware of safety risks, adverse events and other serious
side effects associated with the ONS Product in the Territory, BIO will inform
ONS in writing within seventy two (72) hours.
7. TERM
7.1. This
Agreement is made for an initial term of three (3) years commencing on the
Effective Date (the “Initial Term”).
7.2 This
Agreement will be automatically renewed for successive periods of three (3)
years at the end of the initial term and each renewal term, as applicable,
provided, however, the parties shall negotiate in good faith and agree upon the
applicable terms and conditions (including the minimum quantities to be ordered
by BIO during any renewal period), to the mutual satisfaction of both parties,
under condition that BIO has fulfilled its obligations stipulated in this
Agreement, including section 3.11 above. If BIO decides not to renew
the contract at the end of any term, it shall provide ONS with 90 days
notice.
8. TRADEMARKS AND INTELLECTUAL
PROPERTY INFRINGEMENT
8.1. Trademarks
(a) BIO
shall, in order to protect and preserve ONS rights to the Trademarks in the
Territory, on all Product Packaging and on each Promotional Item, and on any
other Materials, display the Trademarks for the applicable ONS
Product. For greater clarity, no ONS Product, nor any Product
Packaging, Promotional Item or other Material may be marketed without clearly
displaying the Trademarks for the applicable ONS Product in accordance with the
present sub-section. Unless prohibited by applicable law, BIO may
identify itself (using its trade names or trademarks) on Product Packaging,
Promotional Items and on other Materials, as the manufacturer of the ONS
Product.
(b) Every
representation (whether on Product Packaging, Promotional Items or Materials) of
the Trademarks that BIO intends to use must, prior to any use, be submitted to
ONS for written approval, which approval shall not be unreasonably withheld
provided however, that ONS shall be deemed to have approved each Trademark,
unless it shall provide BIO with a written objection detailing the reasons for
such objection, within thirty (30) days after BIO submission of such Trademark
to ONS for consideration.
(c) ONS is
the sole and exclusive owner of all Trademarks, trade names, technical
information or other intellectual property rights stemming from the Materials
and BIO agrees, to the extent required under Section 8.2, to secure, protect and
maintain the Trademarks, trade names and intellectual property of ONS in the
Territory, and to assist ONS in securing the Trademarks, trade names and
intellectual property. BIO further agrees to assign to ONS any
Trademarks, intellectual property rights or other related rights that may accrue
to BIO with respect to the ONS Product under the laws of any part of the
Territory or elsewhere.
8.2. Infringement
(a) Each of
the parties shall promptly notify the other party upon learning of any actual or
threatened infringement or violation of any of the Trademarks or Patents, as
soon as such party becomes aware of such actual or threatened
infringement. The parties hereto undertake to consult each other in
order to determine the appropriate measures to be taken under the
circumstances.
(b) ONS shall
institute a legal suit against any infringement or serious infringement threat
regarding the Trademarks or Patents in the Territory it deems
appropriate.
(c) In the
event ONS, in consultation with BIO, decides to institute a legal suit, pursuant
to Section 8.2(b), such action will be controlled by ONS on its own and BIO
behalf. To this end, and if necessary in order to institute the
legal suit, BIO will give ONS an appropriate power of attorney. Any
recovery obtained following such action, after the reimbursement of the costs
and expenses of such suit will be shared equally between ONS and BIO. BIO
undertakes to provide all reasonable assistance that may be required by
ONS.
(d) In the
event that ONS refuses or neglects, without justification, to institute an
infringement claim when requested by BIO, the latter may, but shall not be
obligated to, institute such infringement claim at its own cost. ONS undertakes
to supply, free of charge, any reasonable assistance that may be required by
BIO.
9. INDEMNITY AND LIABILITY
RELATING TO THE ONS PRODUCTS
9.1. Each
party undertakes to advise the other within seventy two (72) hours following
receipt of any information likely to have a substantial negative impact, of any
notice or complaint relating to the ONS Product, including those regarding the
consumption and use of such products, their innocuousness, the right to market
them and any Intellectual Property infringement, originating in any territory
whatsoever.
9.2. Subject
to the provisions Section 4.5 and 9.4 of this Agreement and except as otherwise
prohibited by applicable law, ONS undertakes to indemnify BIO, BIO Affiliates,
and their Approved Sub licensees as well as their respective officers,
directors, shareholders, employees, agents, representatives, successors and
assigns (each an “BIO
Indemnified Person”) and
to hold them harmless from and against all losses, claims, damages, actions,
suits, proceedings, demands, deficiencies, assessments, adjustments, costs and
expenses (including, but not limited to, reasonable attorneys’ fees and expenses
of investigation) and all amounts paid in settlement of any of the foregoing,
that any BIO Indemnified Person may pay, incur or suffer, to the extent
resulting from, arising out of, or in relation to (1) the material inaccuracy or
breach of any representation, warranty or covenant made by ONS under this
Agreement; or (2) directly caused by defects or failures in the manufacturing of
the ONS Product, to the extent manufactured by, or manufactured at the direction
of, ONS, except to the extent caused by the gross negligence or wilful
misconduct of such BIO Indemnified Person, BIO or any BIO
Affiliate.
9.3. Subject
to the provisions of Section 4.5 (except as otherwise prohibited by applicable
law), BIO undertakes to indemnify ONS, ONS Affiliates, and their respective
officers, directors, shareholders, employees, agents, representatives,
successors and assigns (each a “ONS Indemnified Person”) and
to hold them harmless from and against all losses, claims, damages, actions,
suits, proceedings, demands, deficiencies, assessments, adjustments, costs and
expenses (including, but not limited to, reasonable attorneys’ fees and expenses
of investigation) and all amounts paid in settlement of any of the foregoing,
that the ONS Indemnified Person may pay, incur or suffer, to the extent
resulting from, arising out of, or in relation to (1) the material inaccuracy or
breach of any representation, warranty or covenant made by BIO under this
Agreement; or (2) BIO packaging, storage, transportation, promotion, sale or
other licence of the ONS Product, except to the extent caused by the gross
negligence or wilful misconduct of such Indemnified Person, ONS or any ONS
Affiliate.
9.4. Except as
specifically provided in Section 4.1 of this Agreement, and except for the
representations and warranties included in this Agreement , ONS shall not assume
any obligation and does not make any representation or warranty of any nature
whatsoever regarding the ONS Product, the Promotional Items or any other
Material and, without limitation of the following, ONS does not make any
representation or warranty of any nature whatsoever regarding the usefulness,
the quality or the marketability of the ONS Product or the effects which may
result from their consumption or use. ONS will be in no way
responsible BIO for the warranties, representations, undertakings or any other
obligation given or assumed by BIO towards any party whatsoever regarding the
manufacturing, promotion, licence, consumption, use or sale of any ONS Product
and Promotional Item or any other activity relating thereto.
9.5. Each
Party hereby agrees to maintain at all times a sufficient insurance in order to
indemnify the other party, its clients and the other Indemnified Persons
(minimum CDN $5,000,000 per event) pursuant to this Agreement and to provide
proof thereof to the other party upon request (maximum once per
year).
10. TERMINATION
10.1. In
addition to what is provided in Section 7 of this Agreement, either party may
terminate this Agreement upon the occurrence of one of the following
events:
(a) If the
other party becomes bankrupt, makes a voluntary assignment of its assets to a
receiver, is declared bankrupt or insolvent or makes a voluntary assignment of
its assets for the benefit of its creditors;
(b) If BIO or
any of its Affiliates or its licensees proceeds with any operation,
manipulation, modification or other similar act of the ONS Product in order to
modify the composition or attempts to manufacture a similar product to the ONS
Product and BIO becomes aware of the same and fails to stop such activity within
sixty (60) days; or
(c) The
breach by the other party or of BIO Affiliates or its licensees of any
obligation or undertaking contained herein provided that such breach is not
corrected within sixty (60) days following receipt of a written notice to this
effect.
10.2. In the
event of early termination of this Agreement, BIO shall
immediately:
(a) Cease to
use the Trademarks in the Territory, except in connection with exercising its
rights under Section 10.2(c) below;
(b) Cease to
market and promote the ONS Product, except in connection with exercising its
rights under Section 10.2(c) below;
(c) Diligently
proceed with the sale of its inventories of ONS Product in its possession in the
Territory within no more than ninety (90) days following termination of this
Agreement;
(d) Upon the
expiration of the ninety (90) day period following the termination of this
Agreement, destroy any ONS Product still in its possession; and
(e) Pay to
ONS any amount due pursuant to this Agreement.
11. ASSIGNMENT
BIO may not assign its rights pursuant
to this Agreement to any related party or any third party without the prior
written consent of ONS, which may be given or not, at ONS’s sole
discretion.
12. ARBITRATION
12.1. Any
dispute arising between the parties hereto arising under this Agreement shall be
resolved by arbitration in Montreal, Quebec (or such other location as otherwise
mutually agreed) in accordance with the Quebec Civil Code, and the award of the
arbitrator(s) shall be final and binding upon the parties. The
arbitration award may be entered as a final judgment in any court of competent
jurisdiction.
12.2. All
arbitration proceedings shall be before a board of three (3) arbitrators, for
each of which each party shall select one (1) arbitrator and the selected
arbitrators shall select the third arbitrator.
12.3. The costs of the
arbitrators shall be divided equally between the parties, and each party
shall be solely responsible for its own costs in connection with the
arbitration..
12.4. The
parties hereto agree that the laws of the province of Quebec, without regard to
conflict of law provisions, will govern as additional provisions in any
arbitration that may be held pursuant to the provisions of the present
section.
13. NOTICE
13.1. Notice. Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and delivered
in person or by commercial overnight courier, or by facsimile transmission, or
mailed by certified mail, postage prepaid, return receipt requested, as
follows:
All communications to ONS should be
directed to:
Oceanutrasciences .inc.
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇, ▇▇▇
▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
All communications to BIO should be
directed to:
BIO Solutions
Corp
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
14517,
▇▇▇▇▇▇-▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Fax: (▇▇▇) ▇▇▇ ▇▇▇▇
Any such
notice or other communication shall be deemed received and effective upon the
earlier of (a) if personally delivered, the date of delivery to the address of
the person to receive such notice; (b) if delivered by commercial overnight
carrier, one day following the receipt of such communication by such carrier
from the sender, as shown on the sender’s delivery invoice from such carrier;
and (c) if given by telex or telecopy, when sent. Any reference
herein to the date of receipt, delivery, or giving, as the case may be, of any
notice or other communication shall refer to the date such communication becomes
effective under the terms of this section. Notice of change of
address or facsimile number shall be given by written notice in the manner
detailed in this section. Rejection or other refusal to accept or the
inability to deliver because of changed address or facsimile number of which no
notice was given shall be deemed to constitute receipt of the notice or other
communication sent.
14. CONFIDENTIALITY.
14.1. In
connection with this Agreement, it is acknowledged that each party may disclose
its confidential and proprietary information to the other party. Any
such information that is (i) first disclosed in writing, (ii) if first disclosed
orally is later transmitted in written form, and is labeled as “Confidential”, or (iii) should
be understood to be confidential by a reasonably prudent person, is referred to
herein as “Confidential
Information.”
14.2. Each
party hereto shall maintain the Confidential Information of the other party in
confidence, and shall not disclose or otherwise communicate such Confidential
Information to others, or use it for any purpose except pursuant to, and in
order to carry out, the terms and objectives of this Agreement, and hereby
agrees to exercise every reasonable precaution to prevent and restrain the
unauthorized disclosure of such Confidential Information by any of its
directors, officers, employees, consultants or agents.
14.3. The
provisions of Section 15.2 of this Agreement shall not apply to any Confidential
Information disclosed hereunder which:
(a) Either
was or will be lawfully disclosed to the recipient by an independent third party
rightfully in possession of the Confidential Information; or
(b) Either
has been or will be published or generally known to the public in through no
fault or omission by any of the parties; or
(c) Was
independently known to the recipient prior to receipt from the disclosing party
and is not otherwise subject to confidentiality obligations, or independently
developed by the recipient thereafter, as demonstrably documented in written
records of the recipient; or
(d) Is
required to be disclosed by any of the parties to comply with court orders or
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, provided that such party takes reasonable and lawful
actions to avoid and/or minimize the degree of such disclosure and shall give
prompt notice to the disclosing party..
15. GENERAL
PROVISIONS
15.1. Force
majeure. Any failure or omission by a party to timely perform any
obligation under this Agreement shall not be deemed a breach of this Agreement;
to the extent such failure or omission directly results from a force
majeure. Force majeure is any cause which is not within the
reasonable control of the parties hereto, that they could not reasonably have
planned for and against which they have not protected themselves. Force majeure
includes notably, without limitation, fortuitous act, third party strike,
partial or complete interruption of work, lock-out, fire, rebellion,
interventions by military or civil authorities, compliance with regulations or
rules of any governmental authority, and act of war (declared or
not).
15.2. Illegality
of a provision. The eventual illegality or nullity of a section,
sub-section or paragraph does not affect the legality or validity of the other
sections, sub-sections or paragraphs neither the rest of the sections, unless
evident contrary intention in the text.
15.3. Modification
of the Agreement. This Agreement may be modified in whole or in part
by common agreement between the parties and solely in writing.
15.4. Titles. The
titles are used for order reasons and as accessories and do not affect the
significance or the reach of the sections it refers to.
15.5. Non-waiver. Except
for the provisions of this Agreement where the exercise of a right is
accompanied with a specific delay, the silence of a party, its negligence or its
lateness to exercise a right or recourse which is given to it or opened pursuant
to this Agreement must never be interpreted against such party as a waiver of
its rights and recourses.
15.6. Cumulative
and non-alternative. All rights mentioned hereto are cumulative and
not alternative. The waiver of the exercise of a right must not be interpreted
as a waiver of any other right.
15.7. Governing
Law. This Agreement shall be governed by the laws of the Province of
Quebec, without regard to conflicts of law principles.
15.8. Entire
Agreement. This Agreement expresses the entire agreement between the
parties hereto and no document, agreement or other form of engagement entered
prior to the date of signature of this Agreement shall be considered BIO to
amend or affect in any way the provisions of this Agreement. This
Agreement specifically supersedes and replaces the ONS Agreement, which upon the
Effective Date shall no longer be in effect.
IN WITNESS WHEREOF THE PARTIES HAVE
EXECUTED THIS AGREEMENT AT THE PLACE AND ON THE DATE FIRST ABOVE
MENTIONED.
OCEANUTRASCIENCES,
INC.
____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Directeur Général
BIO Solutions Corp .
_____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Président
SCHEDULE
A
SCHEDULE
B
TRADEMARKS
SCHEDULE
C
APPROVED
DISTRIBUTORS