FORM OF
SUBLICENSE AGREEMENT
THIS SUBLICENSE AGREEMENT (the "Agreement") is made and entered into
this ___ day of _________, ____ (the "Effective Date") by and between Courant
Consulting, Inc., a California corporation with its principal offices located
at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000 (hereinafter "Courant")
and ________________________________________________________________________
____________________________________________________________________________
____________________ (hereinafter "Sublicensee") for the purpose of
establishing a sublicense arrangement between them.
RECITALS
Full Power Corporation, an Ohio corporation with its principal office
located 00000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000 (hereinafter
"FPC") is in the business of selling electric power to retail consumers for
commercial, industrial and residential consumption in California. FPC
possesses all licenses necessary for the sale of electric power to California
consumers.
Courant has entered into a Master License Agreement with FPC pursuant to
which Courant has acquired the exclusive right to certain License Marks and
the right to market certain Services of FPC in the State of California. In
accordance with the terms of the Master License Agreement between FPC and
Courant, Courant has the right to grant and sell sublicenses in the State of
California.
Sublicensee has applied to Courant to become the exclusive Sublicensee
in the Territory described on Schedule A attached hereto (the "Territory").
Courant has agreed to grant such a sublicense to Sublicensee pursuant to the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions and warranties which appear below, and intending to be legally
bound thereby, the parties hereby agree as follows:
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ARTICLE I
GRANT OF LICENSE
1.1 LICENSE
For the consideration herein provided and subject to the terms and
conditions set forth herein, Courant hereby grants to Sublicensee and
Sublicensee hereby accepts the exclusive right and license to:
A. The License Marks in the Territory in accordance with the provisions
of this Agreement.
B. Advertise, promote and procure, within the Territory, signed
Contracts in the name of FPC from commercial, industrial and residential
Customers for the delivery of Services to such Customers within the
Territory, including master metered properties.
ARTICLE II
PAYMENT
2.1 LICENSE FEE
In consideration of the Sublicense granted hereunder, Sublicensee shall
pay to Courant a one time fee in the amount of $________ and __________ (__)
non-voting units of interest in Sublicensee. Payment shall be made in
accordance with the terms of an escrow agreement between the Sublicensee,
Courant, the Recruiter and the Escrow Agent (the "Escrow Agreement").
2.2 COMPENSATION TO SUBLICENSEE
The Contracts to be procured by Sublicensee will provide that a
percentage of the savings realized by the Customer, by switching from its
current electrical provider to FPC, will be retained by the Customer and a
percentage of such savings will accrue to the benefit of FPC. In the case of
a residential customer, fifty percent (50%) of such savings will accrue to
the benefit of the Customer and 50% of such savings will accrue to the
benefit of FPC. Sublicensee shall receive compensation of 50% of the
percentage of the savings which accrues to FPC from the Contracts procured by
Sublicensee. In addition, Sublicensee shall receive 50% of the net profits of
any other services provided by FPC to residential customers procured by
Sublicensee. In the case of commercial, industrial and multiple dwelling unit
customers, 70% of such savings will accrue to the benefit of the Customer and
30% of such savings will accrue to the benefit of FPC. Sublicensee shall
receive 50%
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of the percentage of savings which accrues to FPC from the Contracts procured
by Sublicensee for commercial, industrial and multiple dwelling unit
customers. In addition, sublicensee shall receive 50% of any net profits of
other services provided by FPC to commercial, industrial and multiple
dwelling unit customers procured by sublicensee. The foregoing compensation
to Sublicensee is subject to collection of amounts owed FPC for each customer
billing cycle. Such compensation shall continue for so long as FPC or any
affiliate of FPC shall provide Services to Customer.
2.3 OWNERSHIP OF AND SALE OF CONTRACT
All Contracts and any and all rights thereunder shall be the sole and
exclusive property of FPC. In the event FPC shall sell any or all of the
Contracts, Sublicensee shall receive an amount equal to 50% of the amount
received by FPC for the Contracts sold that were procured by Sublicensee.
Where the Contracts are part of a larger sale, such value shall be
apportioned according to the purchaser's valuation process and such valuation
process shall be final and binding on Sublicensee. In the event Sublicensee
is compensated for the sale of Contracts pursuant to this paragraph, no
further compensation of any kind is due Licensee under Paragraph 2.2.
ARTICLE III
ASSIGNMENT, ASSUMPTION AND CONSENT
3.1 ASSIGNMENT
Courant hereby assigns all of its rights, title and interest in and
under the Master License Agreement in the Territory only, to the Sublicensee.
Except as to the Recitals, Paragraphs 1.6, 2.1.3, 4.1, 4.2, 11.1, 11.3 and
11.5 of the Master License Agreement (the "Excluded Terms"), all terms,
conditions and provisions of the Master License Agreement are deemed to be
terms, conditions and provisions of this Sublicense Agreement as if the same
were fully set forth in this Sublicense Agreement. The Master License
Agreement is attached to the Sublicense Agreement as Schedule B and except as
to the Excluded Terms is deemed a part of this Sublicense Agreement. Except
as to the Excluded Terms which are not deemed part of this Sublicense
Agreement, (i) each and every place the word "Licensee" appears in the Master
License Agreement shall be deemed to read, "Sublicensee" and (ii) the word
"Territory" shall mean the Territory as defined on Schedule A to this
Agreement, for purposes of this Sublicense Agreement.
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3.2 ASSUMPTION
In the Territory only, and except as to the Excluded Terms, Sublicensee
hereby assumes all of Courant's rights, titles, interests, and obligations
under the Master License Agreement. Sublicensee acknowledges and agrees that
except as to the Excluded Terms, each and every term, condition and provision
of the Master License Agreement is hereby deemed to be a term, condition and
provision of this Sublicense Agreement as if the same were fully set forth in
this Sublicense Agreement. Sublicensee acknowledges and agrees that except as
to the Excluded Terms, (i) each and every place where "Licensee" appears in
the Master License Agreement shall be deemed to read, "Sublicensee" and (ii)
the word "Territory" shall mean the Territory as defined on Schedule A to
this Agreement.
3.3 CONSENT
By virtue of its signature below, FPC hereby consents to the grant of
the Sublicense herein, the assignment of the Master License Agreement in the
Territory only to the Sublicensee and the assumption by Sublicensee, in the
Territory only, of Courant's rights, titles, interests, and obligations under
the Master License Agreement.
ARTICLE IV
MISCELLANEOUS
4.1 REPRESENTATIONS AND WARRANTIES
Each party hereby makes the following representations and warranties,
which representations and warranties shall survive the execution hereof and
the consummation of the transactions herein contemplated:
4.1.1 In the case of Courant, it is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its corporation, and in the case of the
Sublicensee, it is a ____________ duly organized and validly
existing under the laws of the jurisdiction of its
organization.
4.1.2 It has full power and authority to execute and perform this
Agreement.
4.1.3 The individuals executing this Agreement have the full power and
authority to bind their respective entities to the terms
hereof and have been properly authorized to do so.
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4.1.4 This Agreement is enforceable against each party in accordance
with its terms.
4.1.5 Sublicensee represents and warrants that it shall cooperate in
good faith with FPC to accomplish the purposes of the Master
License Agreement and this Agreement.
4.2 SUCCESSION
This Sublicense Agreement shall be binding upon and inure to the benefit
of the parties and their respective permitted successors and assigns.
4.3 NOTICES
All notices pursuant to this Agreement shall be in writing and shall be
sent by overnight delivery:
If to Courant to: COURANT CONSULTING, INC.
0000 XXXXXXX XXXX, XXXXX 000
XXX XXXXX, XX 00000
ATTN: XXXXXX XXXXXXX
If to Sublicensee to:
---------------------------------
---------------------------------
---------------------------------
---------------------------------
---------------------------------
4.4 INTEGRATION
This Agreement, together with Schedules A and B, represents the entire
agreement and understanding by the parties as to subject matter hereof. No
waiver, alteration or modification of any of the provisions of this Agreement
shall be binding unless in writing and signed by a duly authorized
representative of the party against which enforcement of such waiver,
alteration or modification is sought.
4.5 ARBITRATION
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, with
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any such arbitration to be held in Cleveland, Ohio, and judgment upon any
award rendered by the Arbitrator(s) may be entered in any Court having
jurisdiction thereof.
4.6 SAVING CLAUSE
If any term, covenant or condition of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such
term, covenant or condition to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant or condition of this Agreement shall be valid and be
enforced to the fullest extent permitted by law. All obligations and duties
which by their nature extend beyond the expiration of this Agreement shall
survive and remain in effect beyond any expiration or termination.
4.7 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Ohio.
4.8 CAPTIONS AND SECTIONS
Captions contained herein are inserted only as a matter of convenience
and in no way define, limit or extend the scope of intent of any provision
hereof. Use of the term "Section" shall include the entire subject of the
section and all its subsections where the context requires.
4.9 INDEPENDENT BUSINESS JUDGMENT
The parties hereby acknowledge and agree that the Sublicensee is an
independent business sufficiently sophisticated to exercise and is exercising
its own business judgment. The parties hereby further acknowledge and agree
that Courant has made no recommendations or representations regarding any
aspect of Sublicensee's business including, but not limited to, any
representations with regard to Sublicensee's profits therefrom.
4.10 EXECUTION
This Agreement may be executed in counterparts and each of such
counterparts shall, for all purposes, be deemed to be an original but
altogether only one Agreement.
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4.11 NON-ASSIGNMENT
Licensee may not assign this Sublicense Agreement without the prior
written consent of FPC, which written consent shall be in the sole and absolute
discretion of FPC.
IN WITNESS WHEREOF, the parties have caused this Sublicense Agreement to be
executed by their duly authorized officers as of the date first set forth above.
COURANT CONSULTING, INC.
By:
----------------------------
Date: Its:
------------------------------ ---------------------------
SUBLICENSEE:
-------------------------------
By:
----------------------------
Date: Its:
------------------------------- ---------------------------
Pursuant to Section 3.3 of this Sublicense Agreement, Full Power Corporation, by
its duly authorized officers, has executed this Agreement.
FULL POWER CORPORATION
By:
----------------------------
Date: Its:
------------------------------ ---------------------------
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SCHEDULE "A"
TERRITORY
EPSA #6
8
*EPSA-6
**ESTIMATED AMOUNT OF DOLLARS SPENT ON ELECTRICITY
[SAN DIEGO COUNTY MAP]
TOTAL POPULATION 2.5 MILLION
TOTAL HOUSEHOLDS 887,719
TOTAL RESIDENTIAL ACCOUNTS 930,277
TOTAL RESIDENTIAL REVENUES $480 MILLION
TOTAL COMMERCIAL/INDUSTRIAL ACCOUNTS 129,048
TOTAL COMMERCIAL/INDUSTRIAL REVENUE $888 MILLION
[LEGEND]
SCHEDULE "B"
MASTER LICENSE AGREEMENT
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MASTER LICENSE AGREEMENT
THIS MASTER LICENSE AGREEMENT (the "Agreement") is made and entered into
this 6th day of October, 1998 (the "Effective Date") by and between Full
Power Corporation, an Ohio corporation, with its principal office located at
00000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, Xxxx 00000 (hereinafter "FPC") and
Courant Consulting, Inc., a California corporation, with principal offices
located at 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxx Xxxxx, XX 00000, (hereinafter
"Licensee") for the purpose of establishing a master licensing arrangement
between them.
RECITALS
FPC is in the business of selling electric power to retail consumers for
commercial, industrial and residential consumption in California. FPC has
entered into seven (7) License Agreements with third parties pursuant to
which FPC has granted licenses in various locations in California (the
locations are listed on Schedule A hereto). The licenses granted permit the
Licensee to market electric power under the name "Full Power Corporation" in
the agreed upon territory.
FPC has recently completed a reverse merger with Full Power Group, Inc.,
a Florida corporation and as a result FPC is now wholly owned by Full Power
Group, Inc. Full Power Group, Inc. is a publicly traded company. FPC has
determined that it no longer wants to directly pursue establishment of
licensees, but instead wants to concentrate its business on the sale of
electric power.
Licensee has experience in the establishment of licensing arrangements.
Licensee desires to become the Master Licensee of FPC in California.
Licensee intends to grant sublicenses for the benefit of FPC in certain parts
of the Territory.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises, covenants,
conditions and warranties which appear below, and intending to be legally
bound thereby, the parties hereby agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 "Contract" means an authorized end user contract for the purchase of
electric power for retail consumption;
1.2 "Customer" means a person or entity who has executed a Contract procured
through the efforts of Licensee for the delivery of Services in the
Territory;
1.3 "License Marks" means "Full Power Corporation-TM-" and such other
service marks, trade names and trade marks of FPC as FPC may hereinafter
grant to Licensee written permission to use;
1.4 "Proprietary Information" means the information described in Section
10.1 of this Agreement;
1.5 "Services" means electric power and any ancillary services related to
the delivery of electric power provided by or through FPC and/or Licensee;
1.6 "Territory" means the Territory as described on Schedule B, attached
hereto.
ARTICLE II
GRANT OF LICENSE
2.1 LICENSE
For the consideration herein provided and subject to the terms and
conditions set forth herein, FPC hereby grants to the Licensee and the
Licensee hereby accepts the exclusive right and license to:
2.1.1 The License Marks in the Territory in accordance with the
provisions of this Agreement.
2.1.2 Advertise, promote and procure, within the Territory, signed
Contracts in the name of FPC from commercial, industrial and
residential Customers for the delivery of Services to such
Customers within the Territory, including master metered properties.
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2.1.3 Licensee shall have the right to grant sublicenses, but only with
the prior written consent of Licensor, which consent shall
not be unreasonably withheld; provided however, that each
sublicensee shall be required to assume the obligations of
Licensee to FPC pursuant to this Agreement.
2.2 USE OF LICENSE MARKS
Licensee agrees that it will use the License Marks only in the Territory
and only for the purpose of marketing and selling the Services. So long as
this Agreement is in effect, Licensee shall not market or sell the Services
under any trade name, trade xxxx, service xxxx, grant or symbol other than
the License Marks without the written permission of FPC.
ARTICLE III
OBLIGATIONS OF FPC
3.1 DELIVERY OF ELECTRICAL POWER
During the term of this Agreement, FPC shall use its best efforts to
continuously, diligently and effectively obtain electric power supply through
FPC's suppliers, in sufficient quantities to satisfy current and reasonably
projected Customer demand.
3.2 LICENSES
FPC shall remain registered and qualified with the California Public
Utilities Commission for any and all activities related to the provision of
electrical power as contemplated by this Agreement in the State of California.
3.3 SALES MATERIAL AND PROMOTIONAL ASSISTANCE
During the term of this Agreement, FPC shall, at its own expense:
3.3.1 Provide the Licensee a sales manual which shall include, but not
be limited to, information concerning the marketing and sale
of electric power within the Territory, applicable rates and
Contracts for the procurement of Customers. FPC shall also
make available, from time to time, updates to the sales
manual as it deems necessary or appropriate.
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3.3.2 provide or make available to Licensee information concerning the
Services and assistance in advertising the Services.
Assistance may include brochures, stationery, sales scripts,
rate sheets and suggested cover letters that FPC may have
available or provide to Licensee from time to time. Licensee
agrees to maintain a fax machine and corresponding telephone
twenty four (24) hours a day to facilitate communications with
FPC.
3.3.3 Provide representatives to assist in answering potential Customer
questions.
3.3.4 Provide representatives to assist in presentations to significant
potential Customers.
3.3.5 Provide representatives who shall provide either verbal or written
assurances, as necessary to any Customer or potential Customer
confirming that Licensee is authorized to obtain executed
Contracts for the provision of the Services on behalf of and
under the authority of FPC.
3.4 SERVICE ADMINISTRATION
During the term of this Agreement, FPC shall, at its own expense:
3.4.1 Maintain a toll free number during normal business hours for
inquiries by Customers.
3.4.2 Send a copy of the fully executed Contract, as well as a
confirmation letter to each Customer, not later than ten (10)
working days after confirmation of the Customer's electric
commodity consumption data from their Local Utility
Distribution Company and Contract acceptance by FPC.
3.4.3 Expeditiously process Direct Access Requests for each Customer
with respect to their Local Utility Distribution Company.
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ARTICLE IV
PAYMENTS
4.1 PURCHASE OF LICENSE
In consideration of the licenses granted hereunder, Licensee shall pay
to FPC a fee in the amount of $968,750 (the "Master License Fee"). The Master
License Fee shall be payable in five (5) equal installments of $193,750. Each
installment shall be payable upon the grant of a sublicense by the Licensee;
provided however that the full amount of the Master License shall be paid on
or before September 1, 2000. In the event Licensee grants more than five (5)
sublicenses pursuant to this Agreement, upon the grant of each additional
sublicense, Licensee shall pay to Licensor the sum of $193,750. FPC has
entered into seven (7) Agreements with third parties within the Territory
granted to Licensee (the "Previously Granted Licenses"). In the case of six
(6) such Previously Granted Licenses, the Licensees have not paid FPC the full
license fee. In each such case, FPC has agreed that in the event the Licensee
does not pay the full license fee, FPC will still grant the license and in
exchange, will accept an equity interest in the Licensee. As a condition of
the grant of this Master License, Licensee herein shall assume FPC's
obligation under previously granted licenses to accept an equity interest in
any Licensee that does not pay the full license fee to FPC. Licensee herein
shall become entitled to all license fees payable from the Licensees under
the Previously Granted Licenses from the date of this Agreement forward;
provided however, the Licensee herein shall pay to FPC one-half of all
license fees payable under Previously Granted Licenses. Licensee shall pay
FPC the one-half of all license fees payable under Previously Granted
Licenses as collected, but in no event, including the failure to collect such
license fees, no later than September 1, 2000.
4.2 COMPENSATION TO LICENSEE
The Contracts to be procured by Licensee will provide that a
percentage of the savings realized by the Customer, by switching from its
current electric provider to FPC, will be retained by the Customer and a
percentage of such savings will accrue to the benefit of FPC. In the case of
a residential customer, 50% of such savings will accrue to the benefit of the
Customer and 50% of such savings will accrue to the benefit of FPC. Licensee
shall receive compensation of 50% of the percentage of savings which accrues
to FPC from the Contracts procured by Licensee. In addition, Licensee shall
receive 50% of any net profits on other services provided by FPC to
residential customers procured by Licensee. In the case of commercial,
industrial and multiple dwelling unit customers, 70% of such savings will
accrue to the
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benefit of the customer and 30% of such savings will accrue to the benefit of
FPC. Licensee shall receive 50% of the percentage of savings which accrues to
FPC from the contracts procured by Licensee for commercial, industrial and
multiple dwelling unit customers. In addition, Licensee shall receive 50% of
any net profits on other services provided by FPC to commercial, industrial
and multiple dwelling unit customers procured by Licensee. The foregoing
compensation to Licensee is subject to collection of amounts owed FPC for
each customer billing cycle. Such compensation shall continue for so long as
FPC or any affiliate of FPC shall provide services to the customer.
4.3 OWNERSHIP OF AND SALE OF CONTRACT
All Contracts and any and all rights thereunder shall be the sole and
exclusive property of FPC. In the event FPC shall sell any or all of the
Contracts, Licensee shall receive an amount equal to 50% of the amount
received by FPC for the Contracts sold that were procured by Licensee. Where
the Contracts are part of a larger sale, such value shall be apportioned
according to the purchaser's valuation process and such valuation process
shall be final and binding on Licensee. In the event Licensee is compensated
for the sale of Contracts pursuant to this paragraph, no further compensation
of any kind is due Licensee under PARA 4.2.
4.4 PAYMENT TO LICENSEE
FPC shall calculate amounts due Licensee as of the last day of each
calendar month net of any amount that may be due from Licensee to FPC and
shall remit such amount to Licensee no later than the tenth working day of
the succeeding calendar month by such means as may be mutually agreed and as
may be changed from time to time among Licensee and FPC. At or before the
time of payment, FPC shall provide to Licensee re-billing and collection data
for each Customer procured by Licensee.
4.5 BOOKS AND RECORDS
FPC shall maintain books and records of Customer xxxxxxxx and
collections as reasonably necessary to document and substantiate the
determination of amounts due to Licensee. Licensee may from time to time not
to exceed four (4) times per calendar year and upon ten (10) days prior
written notice inspect the books and records at the place of business of FPC
during normal business hours.
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4.6 BILLING AND COLLECTION
FPC shall arrange for or provide meter reading and billing services
for all Customers, including the exercise of reasonable efforts to collect
all sums due from Customers for the provision of Services according to FPC's
Contracts; provided, however, that FPC shall not be obligated to expend funds
or institute legal proceedings to collect sums due from customers. FPC may,
in its sole discretion, delegate its billing and collection obligations under
this Section to any third party. FPC shall:
4.6.1 Xxxx all Customers no less frequently than a sixty (60) day
average billing cycle.
4.6.2 Be responsible for resolving billing disputes when they are
the result of a xxxx produced by FPC, their affiliate or
a third party billing company.
4.6.3 Subject to applicable law, take prompt action to discontinue
Service to Customers who are delinquent in their payments.
Where reasonably possible, FPC will notify Licensee in
advance of any discontinuance in Service due to
delinquency in payment.
ARTICLE V
OBLIGATIONS OF LICENSEE
5.1 SALES AND MARKETING
During the term of this Agreement, Licensee shall, at its own expense,
use its best efforts to continuously, diligently and effectively:
5.1.1 Subject to applicable law, utilize methods customarily
employed for the selling of Services within the Territory
and in accordance with the terms and conditions of this
Agreement and the sales material provided to Licensee by
FPC.
5.1.2 Administer to all Customer inquires and orders promptly and
efficiently.
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5.1.3 Ensure that all sales material and documents used in
connection with sales of the Services are marked with
such copyright, trade xxxx or other notices, proprietary
legends or restrictions as FPC may reasonably require.
5.1.4 Obtain the prior written approval from FPC for any
advertisement that references or mentions FPC or any
provider of electric power to FPC known to Licensee.
5.2 CONTRACTS
During the term of this Agreement, Licensee shall procure Contracts
for the Services within the Territory and in doing so shall:
5.2.1 Utilize FPC's Contracts and other ancillary documents, as may
be modified from time to time.
5.2.2 Submit, or have Customers submit, the original of the properly
executed Contract and all appropriate ancillary forms and
documents according to procedures established by FPC, as
expeditiously as possible.
5.2.3 Use its best efforts to ensure that the person signing the
Contract on behalf of a Customer is duly authorized to
do so.
5.2.4 Bring to the attention of FPC any instance where another
individual or entity is obtaining or attempting to obtain
the cooperation of a Customer to cancel or breach their
Contract with FPC.
5.3 NEGATIVE COVENANTS
During the term of this Agreement, Licensee shall not:
5.3.1 Make any material misrepresentation of fact or omit to state
any material fact or engage in any deceptive business
practice in connection with the sales, marketing,
advertisement or promotion of the Services.
5.3.2 Modify any term or condition in the Contract without the prior
written consent of FPC.
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5.3.3 Collect any money from a Customer in Licensee's own name or
any name other than FPC.
ARTICLE VI
TERM AND TERMINATION
6.1 TERM
This Agreement shall become effective upon the Effective Date and
shall remain in effect for a period of five (5) years thereafter, unless
sooner terminated pursuant to the provisions of this Agreement. This
Agreement shall automatically and without notice renew thereafter for
successive periods of one (1) year, or as otherwise agreed by the parties.
This Agreement shall be terminable by either party at the end of the initial
term or then current renewal term upon written notice give thirty (30) days
prior to the end of the initial term or then current term.
6.2 REGULATORY APPROVAL
This Agreement shall terminate automatically and without liability or
further obligation on the part of either party to the other if, by final
order, FPC is denied or loses any necessary authority to provide the Services
in the Territory, or if authority is suspended or not renewed. In the event
of the occurrences described in the immediately preceding sentence, FPC shall
incur no liability to Licensee as the result of the occurrence of such
events. Licensee shall be entitled to all payments under and in accordance
with Sections 4.2, 4.3 and 4.4 (if applicable), subject to collection of
monies by FPC.
6.3 TERMINATION BY LICENSEE
Licensee may terminate this Agreement, without cause, upon ninety (90)
days prior written notice to FPC. Licensee agrees that it shall have no claim
for refund of fees paid under Section 4.1 in the event of termination under
this Section.
6.4 EVENT OF DEFAULT AND TERMINATION FOR CAUSE
The following shall constitute an event of default hereunder:
6.4.1 The violation by either party hereto of any material term or
provision of this Agreement and the failure of either
party hereto to perform its material obligations
hereunder for a period of thirty (30) days from the date
of written notice
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thereof to the other party.
6.4.2 Any failure of the Licensee to abide by the terms of Sections
8.1 or 10.1.
6.4.3 The failure of FPC to pay any amounts due to Licensee in
accordance with the terms of this Agreement.
6.4.4 There shall occur any of the following actions with respect to
either the Licensee or FPC:
i. It shall be adjudged bankrupt or insolvent or make
an assignment for the benefit of creditors, or a
temporary or permanent receiver shall be appointed
to administer its affairs
ii. Proceedings for its reorganization shall be
instituted.
iii. It shall take any action to dissolve or terminate
its existence.
iv. It shall sell all or substantially all of its
assets.
v. Licensee shall attempt to assign this Agreement or
any right hereunder without obtaining the written
consent of FPC other, or shall suffer such
assignment by operation of law.
Upon the occurrence of an Event of Default as defined herein, the
non-defaulting party shall have the right to terminate this Agreement upon
thirty (30) days advance written notice to the other party.
6.5 ALTERNATIVE REMEDIES
The remedies set forth herein are cumulative and in addition to and
not exclusive or a limitation of other remedies available at law or in equity.
6.6 RIGHTS AND OBLIGATIONS UPON TERMINATION
FPC and Licensee hereby agree that upon any termination of this
Agreement, they shall be subject to the following rights and obligations:
6.6.1 The compensation provisions in this Agreement shall survive
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termination, regardless of the nature of the termination.
6.6.2 Licensee shall promptly return to FPC all Proprietary Information
and promotional materials and shall cease all advertising,
promotion and sales of the Services in the name of FPC and shall
refrain from making any representation, public or otherwise,
which could imply that there is any continuing relationship
between FPC and Licensee. Licensee shall immediately cease use of
all of FPC's trade marks, service marks, trade names, logos and
materials and those of any of FPC's suppliers and affiliates.
6.6.3. Sections 3.4.1, 4.2, 4.3, 4.4, 4.5, 4.6 and 9.3 shall survive this
Agreement.
ARTICLE VII
OWNERSHIP AND USE OF LICENSE MARKS
7.1 OWNERSHIP OF LICENSE MARKS
The License Marks and all other trade names, trade marks and service
marks now or hereafter owned or employed by FPC, or used in their business
operations, and any good will resulting from the use thereof shall remain the
sole and exclusive property of FPC.
7.2 PROTECTION OF LICENSE MARKS
Licensee agrees that upon the request of FPC, it shall ensure that whenever
License Marks are used by Licensee, they shall be accompanied by a statement
satisfactory to FPC that they are marks or names used by Licensee with the
permission of FPC. Licensee further agrees not to do or permit to be done any
act which would (i) jeopardize, invalidate or remove any registration of the
License Marks and other registered trade names, trade marks or service marks of
FPC; or (ii) prejudice the right or title of FPC in the License Marks and any
other trade names, trade marks or service marks of FPC.
7.3. INFRINGEMENT OF LICENSE MARKS
FPC represents and warrants that it has no knowledge of any instance of
infringement of any of the License Marks. Licensee agrees to keep FPC at all
times fully advised of any actual or threatened infringement of the License
Marks that comes to its attention.
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7.4 DISCONTINUANCE OF USE OF LICENSE MARKS
Licensee shall immediately discontinue any use of the License Marks upon
termination of this Agreement.
ARTICLE VIII
ADVERTISING
8.1 ADVERTISING STANDARDS
FPC has established standards for all advertising, promotional and training
materials used or distributed by Licensee which relate to the Services. Licensee
shall provide to FPC, for its prior review and written approval, all
promotional, advertising and other materials or activity using or displaying
FPC's name or the Services, or referring to Licensee as a Licensee of FPC.
8.2 COOPERATIVE FUND
FPC and Licensee, together with all other Licensees of FPC, agree to
jointly establish an advertising fund in such amounts as may be agreed upon from
time to time, subject to policies and procedures established by FPC, in its
discretion. The funding for such advertising may be payable from gross revenues
generated from FPC's Licensees and sales of the Services.
ARTICLE IX
AUTHORITY AND INDEMNIFICATION
9.1 AUTHORITY OF LICENSEE
This Agreement does not constitute Licensee as FPC's general or special
agent and does not (i) create a joint venture or apply to confer any status,
power or authority upon Licensee other than is expressly set forth herein; or
(ii) give Licensee the right to enter into a Contract on FPC's account or to
bind FPC, other than as expressly set forth herein.
9.2 LICENSEE'S EMPLOYEES
All persons employed by Licensee are and will remain the employees and
agents of Licensee and are not and will not become employees or agents of FPC.
Licensee shall be solely responsible for the acts and omissions of its employees
and agents, shall have responsibility for their supervision, direction, control
and will ensure their compliance with this Master License Agreement.
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9.3 INDEMNIFICATION
Notwithstanding any of the provisions of this Agreement which may be
construed to the contrary, Licensee shall indemnify FPC, its officers,
directors, stockholders, employees, agents, attorneys and representatives and
hold them harmless from and against any and all claims, actual damages,
consequential damages, liabilities and expenses, including reasonable
attorneys' fees, occasioned by any act or omission of Licensee, its partners,
employees, agents or representatives relating to the performance of its
obligations hereunder.
ARTICLE X
CONFIDENTIALITY
10.1 PROPRIETARY INFORMATION
During the term of this Agreement and for a period of two (2) years
thereafter, Licensee shall retain in confidence and shall require its partners,
employees, consultants, representatives and agents to retain in confidence the
Proprietary Information of FPC described below. The parties agree that such
Proprietary Information constitutes trade secrets of FPC and that the disclosure
thereof in contravention of this Agreement will constitute an unfair trade
practice. Proprietary Information means information relating to the business and
operations of FPC, its affiliates, clients and consultants, including, but not
limited to, all technical, marketing and financial information relating thereto,
any information relating to the pricing methods, processes, financial data,
lists, apparatus, statistics, programs, research, development or related future
business activities or operations or the results of the provision of Services
performed by Licensee under this Agreement. Licensee shall take effective
precautions, contractual and otherwise, reasonably calculated to prevent
unauthorized disclosure or misuse of Proprietary Information by any of its
partners, employees, or by any other person having access to such information.
10.2 EXCLUSION OF PROPRIETARY INFORMATION
Proprietary Information shall not be deemed to include information which is
(i) already known to recipient (other than as a result of breach of this
Agreement, or any other confidentiality agreement between a party to this
Agreement and a third party); (ii) publicly known (or becomes publicly known)
without the fault or negligence of the recipient; (iii) approved for release by
written authorization of FPC; or (iv) required to be disclosed by law; provided
however, that in the event of such a proposed disclosure, Licensee shall give
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FPC not less than ten (10) days prior written notice before such disclosure is
made.
10.3 DISCLOSURE OF TERMS OF AGREEMENT
Neither party hereto shall disclose the terms and conditions of this
Agreement to any person or entity without the prior written consent of the other
party, except that this Agreement shall be provided to any Sublicensee.
ARTICLE XI
MISCELLANEOUS
11.1 REPRESENTATIONS AND WARRANTIES
Each party hereby makes the following representations and warranties,
which representations and warranties shall survive the execution hereof and the
consummation of the transactions herein contemplated:
11.1.1 In the case of FPC, it is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its corporation, and in the case of the
Licensee, it is a corporation duly organized and validly
existing under the laws of the jurisdiction of its
incorporation.
11.1.2 It has full power and authority to execute and perform this
Agreement.
11.1.3 The individuals executing this Agreement have the full power
and authority to bind their respective entities to the terms
hereof and have been properly authorized to do so.
11.1.4 This Agreement is enforceable against each party in accordance
with its terms.
11.1.5 Licensee represents and warrants that it shall cooperate in
good faith with FPC to accomplish the purposes of this Master
License Agreement.
11.2 FORCE MAJEURE
Neither party shall be liable to the other for any delay or failure to
perform hereunder, which delay or failure is due to causes beyond the control of
said party, including, but not limited to: (i) acts of God; (ii) acts of the
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public enemy; (iii) acts of the United States of America, or any State,
territory or political subdivision thereof or of the District of Columbia; (iv)
fires, floods, epidemics, quarantine restrictions; or (v) strikes or freight
embargoes.
11.3 ACKNOWLEDGEMENT OF LICENSEE STATUS
Licensee acknowledges that it is a Licensee of FPC. Licensee agrees to
execute any document reasonably requested by FPC acknowledging Licensee's status
as a Licensee of FPC.
11.4 SUCCESSION
This Master License Agreement shall be binding upon and inure to the
benefit of the parties and their respective permitted successors and assigns.
11.5 NOTICES
All notices pursuant to this Agreement shall be in writing and shall be
sent by overnight delivery:
If to FPC, to: Full Power Corporation
00000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
If to Licensee, to: Courant Consulting, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
11.6 INTEGRATION
This Agreement represents the entire agreement and understanding between
FPC and Licensee as to the subject matter hereof. No waiver, alteration or
modification of any of the provisions of this Agreement shall be binding unless
in writing and signed by a duly authorized representative of the party against
which enforcement of such waiver, alteration or modification is sought.
11.7 ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or
the breach thereof, shall be settled by arbitration in accordance with the
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Commercial Arbitration Rules of the American Arbitration Association, with any
such arbitration to be held in Cleveland, Ohio, and judgment upon any award
rendered by the Arbitrator(s) may be entered in any Court having jurisdiction
thereof.
11.8 SAVINGS CLAUSE
If any term, covenant or condition of this Agreement or the application
thereof to any person or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Agreement or the application of such term,
covenant or condition to persons or circumstances other than those to which it
is held invalid or unenforceable, shall not be affected thereby and each term,
covenant or condition of this Agreement shall be valid and be enforced to the
fullest extent permitted by law. All obligations and duties which by their
nature extend beyond the expiration of this Agreement shall survive and
remain in effect beyond any expiration or termination.
11.9 APPLICABLE LAW
This Agreement shall be governed by the laws of the State of Ohio,
without choice of law principles.
11.10 CAPTIONS AND SECTIONS
Captions contained herein are inserted only as a matter of convenience
and in no way define, limit or extend the scope of intent of any provision
hereof. Use of the term "Section" shall include the entire subject section and
all its subsections where the context requires.
11.11 INDEPENDENT BUSINESS JUDGMENT
The parties hereby acknowledge and agree that Licensee is an independent
business sufficiently sophisticated to exercise and is exercising its own
business judgment. The parties hereby further acknowledge and agree that FPC has
made no recommendations or representations regarding any aspect of Licensee's
business including, but not limited to, any representations with regard to
Licensee's profits therefrom.
11.12 WAIVER
Failure or delay on the part of either party to exercise any right, power
or privilege hereunder shall not operate as a waiver thereof. A waiver of one
obligation hereunder shall not operate as a waiver of any other obligation. A
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waiver of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach.
11.13 EXECUTION
This Agreement may be executed in counterparts and each of such
counterparts shall, for all purposes, be deemed to be an original but altogether
only one Agreement.
IN WITNESS WHEREOF, the parties have caused this Master License Agreement to be
executed by their duly authorized officers as of the date first set forth above.
FULL POWER CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Its: President
----------------------------------
Date: 10/6/98
---------------------------------
COURANT CONSULTING, INC.
By: /s/ X. Xxxxxxx
-----------------------------------
Its: President
----------------------------------
Date: 10/7/98
---------------------------------
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SCHEDULE "A"
LIST OF LICENSES GRANTED
1. EPSA # 1
2. EPSA # 2
3. EPSA # 3
4. EPSA # 5
5. EPSA # 8
6. EPSA # 11
7. EPSA # 12
SCHEDULE "B"
TERRITORY
The State of California, with the exception of the Licenses listed on
Schedule A.
1. EPSA # 4
2. EPSA # 6
3. EPSA # 7
4. EPSA # 9
5. EPSA # 10