LICENSE AGREEMENT
THIS AGREEMENT made and entered into as of the 1st day of April, 2009,
by and between Venitech, LLC, 000 Xxxxxxxxxx Xxxxxx, Xx. 000, Xxxxxx XX
00000, ("Venitech" or "Licensor") and Community Alliance, Inc. a Nevada
corporation, with offices located at 0000 Xxxxxx Xxxx Xxxxx, Xxxxxx
Xxxx, Xxxxxxxx, 00000, ("Licensee") (together the "Parties").
W I T N E S SE T H
WHEREAS, Licensor has developed a certain Business Concept, ("Business
Concept") under Venitech, LLC,
WHEREAS, On March 14, 2005, Licensor had licensed Fresh Ideas Media,
Inc, at the time, the parent company of Community Alliance, Inc., the
exclusive license to use the registered trademarks of "Community
Alliance" and "Our Best Wishes" along with the Intellectual Property,
related Trade Marks, when or if applied for and received, copyrighted
materials and all aspects of the Business Concept (ALicensed Business@)
in a given territory which included 45 states in the United States, and
did exclude the states of Colorado, Texas, Florida, Nebraska and
Oklahoma in that License Agreement, and in March, 2005, Fresh Ideas had
assigned that License Agreement over to Community Alliance, Inc., a
wholly owned subsidiary of Fresh Ideas Media, Inc., at that time, and
WHEREAS, Venitech, LLC had established a business under a DBA of
Community Alliance in the state of Colorado, and as a result has
developed certain methods of marketing the Business Concept including,
but not limited to methods of selling, marketing, advertising, art and
design concepts, forms, printing, agreements and other items relating to
the Business Concept all herein collectively called Intellectual
Property ("Intellectual Property") and has established a revenue
generating business in the state of Colorado. And on February 6, 2008,
did enter into a License Agreement with Community Alliance, Inc.,
granting to Community Alliance, Inc. the exclusive right to use the
registered trademark "Community Alliance" and "Our Best Wishes" and
related Intellectual Property, Trade Marks, when or if applied for and
when received, copyrighted materials and all aspects of the Business
Concept in the state of Colorado, except for Jefferson County, and all
business and accounts presently generated by Licensor in the state of
Colorado, except for Jefferson County, and
WHEREAS, there now have been two master License Agreements between
Venitech, LLC and Community Alliance, Inc., concerning the rights to
Community Alliance and Our Best wishes, one dated March 14, 2005 and one
dated February 6, 2008, and there have been several Addendums to each
Agreement from the date that each Agreement was entered into, and
WHEREAS, this Agreement is to supersede both of those Agreements and any
and all Addendums thereto, and to therefore make both of those License
Agreements and Addendums thereto, null and void and to establish a new
working relationship between Venitech, LLC and Community Alliance, Inc.
as described herein.
Whereas the following definitions shall apply:
"Business Concept" means the overall description of the business created
by the Licensor using the Trade Marks, Copyrighted Materials, Trade
Secrets and Intellectual Property, thus creating a viable business.
"Trademark(s)" "Licensed Marks" and "Copyright(s)" means any work
containing Trade Marks that Licensor has or will apply for pertaining to
the Business Concept, in particular "Community Alliance" and "Our Best
Wishes" and/or copyrightable subject matter that Licensor owns or has
the right to license to others that relates to the Licensed Business,
including without limitation works registered with the Copyright Office
of the United States or any foreign country or works for which an
application to register the work with the Copyright Office of the United
States or any foreign country has been filed. It is understood that
Licensor may file for additional Trademarks pertaining to the Business
Concept in the future and that if or when such trademarks are filed,
such trademarks shall be included in the Business Concept and shall
automatically become a part of this Agreement and therefore be licensed
to the licensee.
"Licensed Business" means the business using the Trade Marks,
Copyrighted Materials, and Intellectual Property described herein in the
course of business in the Licensed Territory.
"Intellectual Property" means all of the methods of selling, marketing,
advertising, art and design concepts, forms, printing, agreements, Trade
Marks, copyrighted materials and other items and trade secrets relating
to the Business Concept and improvements made thereto or in the future.
AAdvertising Product@ means the custom take-home school folder
publications, which are provided to schools as the vehicle to place
advertisements for community businesses, custom greeting cards sent to
consumers allowing advertisements for community businesses and other
products developed by Licensor for advertising purposes.
"Trade Secrets" means all items described under "Intellectual Property"
which shall include all business methods developed by Licensor
pertaining to the Business Concept, including methods of selling,
marketing, advertising, art and design concepts, forms, printing,
agreements and other items relating to the Business Concept, either
existing now or developed in the future.
"Know-How" means the methods, skills, procedures, forms, and operations
developed by Licensor as related to the Business Concept including all
items described above under Intellectual Property and Trade Secrets that
are known, possessed and used by Licensor as of the Effective Date of
this Agreement and developed after the date of this Agreement and that
relate to Business Concept and the License granted hereto.
"Marketing Materials" means the documents, forms and literature provided
to Licensee for the purpose of selling advertising to business,
contracting with schools, and other uses relating to the Business
Concept.
"Publications and Designs" means folders, greeting cards, and other
publications relating to the Business Concept and all graphic design
services provided by the Licensor to the Licensee in relation to the
Publications.
"Territory" means the specific geographic area as described below in
Article 3, under "TOTAL TERRITORY."
"Sub-license" means a license granted by the licensee to any person or
company allowing them to use the Business Concept, Trade Secrets, Trade
Marks, Intellectual Property, Know-How, Marketing Materials,
Publications and Designs in a given territory, under the terms and as
described in this Agreement.
"Sub-license Territory" means any specifically defined area that
Licensee determines is suitable for a territory to be sold to a Sub-
license.
"Subsidiary" means any corporation or other entity which is 100%
directly or indirectly owned by Licensee.
"Affiliate" means any corporation or other entity which is at least 50%
owned by Licensee.
"Annual Period" means each twelve (12) month period commencing on the
signing of this Agreement and each 12 month period thereafter.
Each 12 month period from the date of this Agreement shall constitute
and be referred to herein as an "Annual Period".
"Business and Accounts presently generated in Colorado by
Licensor" shall mean all schools in the Territory of Colorado that
Licensor has contracted with, all schools which has agreed to distribute
the School Folders, and the right to solicit any and all business and
schools in the Territory of Colorado.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, the parties hereto covenant and agree as follows:
ARTICLE 1
GRANT OF LICENSE
Upon the terms and conditions of this Agreement, Licensor hereby grants
to Licensee, during the term of this Agreement, and in the territory
described below, the sole and exclusive right and license to use and
develop the Business Concept, including Copyrights, Trade Marks, if and
when applied for by Licensor, Intellectual Property and Know-how, in
connection with developing and operating the Business Concept in the
Territory and on all brand identifications, promotional material,
publicity, sales, advertising, newspaper, magazine, and similar media
presently existing or that may exist in the future, in connection solely
with the creation, introduction, marketing, distribution, sale and
advertising of the Business Concept.
ARTICLE 2
LICENSE FEE
WHEREAS, Community Alliance, Inc has, in the past, paid Venitech various
amounts of money for the grant of the License and the use of the
Intellectual Property, Trade Marks, Copyrighted Material, Business
Concept and Know-How as described herein, and the Territory as described
herein, and the License Agreements called for additional cash payments,
Venitech and Community Alliance desire now to modify and change the
terms of the two master Agreements and any an all Addendums thereto, it
is hereby agreed that in addition to any and all fees that have been
paid by Community Alliance in the past, the following is hereby agreed
to.
For the Grant of License as described in ARTICLE 1, GRANT OF LICENSE of
this Agreement in the Territory as described in ARTICLE 3, TOTAL
TERRITORY, of this Agreement, in addition to any payments that has been
made in the past in relation to the two master Agreements, and Addendums
thereto, and for modifying and changing the terms of those Agreements,
Community Alliance shall issue to Venitech, and/or to Xxxx Daily, as so
instructed by Xxxx Daily, the amount of 1,000,0000 shares of the
authorized but unissued shares Common Stock of Community Alliance. It
is agreed that the 1,000,000 shares of Common Stock to be issued to
Venitech and/or Xxxx Daily shall not be diluted by a reverse stock split
for a period of two years from the date that the stock is issued. If,
for example, if the Company does a reverse stock split, additional
shares will be issued to keep the amount to 1,000,000 shares of Common
Stock. In addition, Venitech, shall receive a total of ten percent
(10%) of any sub-license fee received by Community Alliance from every
Sub-License ("Sub-license" sold within the Territory.
Payments shall be made to Venitech by Community Alliance within 10 days
from the time that any payment has been received from a Sub-licensee as
payment for a particular Territory.
All cash payments to be paid to Licensor pursuant to this Agreement
shall be sent or delivered to Licensor at its notice address as
hereinafter specified and shall be in United States currency. Any
payment not mailed by certified mail by licensee or otherwise delivered
to licensor on or before the date by which that payment is to be paid
shall be delinquent and overdue and shall be cause to revoke this
Agreement under terms described herein.
Business and Accounts presently generated in Colorado by Licensor: It
us understood that Licensor has been conducting business under the name
of Community Alliance in the state of Colorado for several years and has
established a name recognition, good will, numerous business accounts
for advertising on the School Folders and contracted with many schools
throughout the state for distribution of the School Folders to homes
through the students. That this established business presently
generates revenues and profits. That under this Agreement, Licensor is
turning over to Licensee all business accounts, contracts with all
schools which may be in existence or which may come into existence, all
good will established, and any and all business that might pertain to
the Business Concept in the state of Colorado, with the exception of
Jefferson County in that state.
In addition to the above, Xxxx Daily shall serve on the Board of
Directors of Community Alliance, and, in addition, may be employed by
Community Alliance under terms and conditions agreed to by both parties.
ARTICLE 3
TOTAL TERRITORY
The TOTAL TERRITORY granted to the Licensee by the Licensor by this
Agreement shall be the entire United States, with the exception of the
states of Texas, Florida, Nebraska, Oklahoma and Jefferson County in the
State of Colorado. It is expressly understood and agreed by the parties
that the Licensee will not, at any time, allow the Business Concept or
any part of the Business Concept, to be used in the above 5 states,
whether by the Licensee, any affiliate or subsidiary or by any Sub-
licensee. Any use of the Business Concept or any part of the Business
Concept in the above 5 states, by the Licensee, any affiliate or
subsidiary of the Licensee or any Sub-licensee of the Licensee shall
make this Agreement null and void and the Licensor shall have the right
to cancel this Agreement and take over the entire territory granted by
this Agreement.
ARTICLE 4
DEFINED SUB-LICENSE TERRITORIES
Licensor and Licensee has defined certain possible Sub-licensee
Territories within the Total Territory granted to Licensee. However,
it is understood that the proposed License Territories are simply
proposed and may change. The Sub-license Territories shall be defined
at the total discretion of the Licensee.
ARTICLE 5
GRANTING OF SUB-LICENSES
Licensee may, during the term of this Agreement, grant to third
party, whether an individual or a company, the rights to the Business
Concept, including the use of the Intellectual Property, Trade Marks,
Copyrighted Material, Business Concept and Know-How as described herein,
under a Sub-license Agreement, in the Licensed Territory, providing that
the Sub-licensee abides by the terms of the Sub-license Agreement
provided by the Licensee to the Sub-licensee and that the Sub-licensee
does nothing contrary to the terms of this Agreement.
Any Sub-license granted by the Licensee shall not conflict in any way
with this Agreement. A suitable Sub-license Agreement to be used by the
Licensee shall be presented to the Licensor for approval by Licensor.
The Licensed Marks, either applied for or to be applied for by
Licensor of "Community Alliance" and "Our Best Wishes" or any
derivatives thereof may not be used in any way other than as described
in this Agreement and any Sub-license Agreement as agreed to by the
Licensor. Licensee is not entitled to create, reproduce, publish, sell,
distribute, transmit, download or otherwise use any "Electronic Media"
containing the "Licensed Marks", or to license any party to do any of
the foregoing, except solely under a Sub-license as agreed to by
Licensor. "Electronic Media" includes, but is not limited to, all forms
of electronic, magnetic, digital, optical and laser-based information
storage and retrieval systems, floppy diskette-based software, CD-ROM,
interactive software and compact discs, ROM Card, silicon chip, on-line
electronic or satellite-based data transmission and other such systems,
and any other device or medium for electronic reproduction, publication,
distribution or transmission, whether now or hereafter known or
developed, without the express written consent of the Licensor.
ARTICLE 6
MINIMUM PROFORMANCE BY LICENSEE
It is understood that Licensee is not obligated to sell a minimum of
Sub-licenses during the term of this Agreement.
ARTICLE 7
EXCLUSIVITY OF LICENSE
Licensor will not grant any other license effective during the term
of this Agreement for the use of the Business Concept or any part
thereof to any other individual or company, in the Territory granted
under this license, so long as this Agreement is in place and has not
been breeched by the Licensee.
ARTICLE 8
TERM OF THE AGREEMENT
Subject to the rights of termination set forth in this Agreement, the
initial term of this agreement shall commence on the date hereof and
shall terminate on April 1, 2015. Licensee shall have the right to
renew this Agreement for an additional three-year period provided:
A. All fees which are due and payable by the Licensee to the Licensor
are paid as per the terms of this Agreement.
B. Licensee is not otherwise in default hereunder;
C. Licensee gives Licensor notice in writing of its intent to renew no
later than January 15, 2015.
ARTICLE 9
CONFIDENTIALITY
The Parties acknowledge that all non-public information relating to
the business and operations of Licensor and Licensee which they learn or
have learned from the other during or prior to the term of this
Agreement is confidential. The Parties acknowledge the need to preserve
the confidentiality and secrecy of such information and agree that, both
during the term of this Agreement and after the expiration or
termination hereof, they shall not use or disclose same, and shall take
all reasonable steps to preserve in all respects such confidentiality
and secrecy, it being understood that a Party shall have complied with
the foregoing obligation if such Party understands at least the same
measures and precautions it uses to safeguard its own confidential
information. The provisions of this paragraph shall not apply with
respect to:
A. any information that is granted to a Sub-licensee under a Sub-
licensee Agreement and is a part of the Business Concept as described
herein.
B. any information that is generally available to the public other than
as a result of disclosure in violation of the foregoing;
C. any information that is known to Licensor prior to disclosure by
Licensee or independently developed by Licensor;
D. any otherwise confidential information that is disclosed to Licensor
by a third party and such disclosure by the third party is not, to the
best knowledge of Licensor, in violation of any confidentiality
agreement of that party to Licensee; or
E. information that is required to be disclosed by judicial or
administrative order or required to be disclosed to enforce the terms
and conditions hereof.
The provisions of this paragraph shall survive the expiration or
termination of this Agreement.
ARTICLE 10
DUTIES OF LICENSEE
Best Efforts. During the term of this Agreement, Licensee will use its
best efforts to exploit the rights herein granted throughout the
Territory and develop the Business Concept in the Territory granted
under this Licensee Agreement, and/or sub-license the Business Concept
in the Territory granted under this License Agreement.
Licensee shall use the "Licensed Marks" if or when applied for and
received, and conduct its business under the "Licensed Marks" in a
manner designed to enhance the reputation and integrity of the "Licensed
Marks" and the goodwill associated therewith.
Licensee shall not take any action that in any way might tend to
diminish or disparage the value, goodwill, or reputation of the Business
Concept, "Licensed Marks" or Licensor.
Licensee shall be solely responsible for ensuring that all uses of the
Business Concept or any part thereof, including the "Licensed Marks" by
any of Sub-licensee=s comply with applicable law.
Licensee and/or any Sub-licensee shall have the responsibility of paying
any city, county state and/or federal taxes which may become due as a
result of their activities relating to this Agreement or any Sub-license
Agreement.
ARTICLE 11
DOMAIN NAMES
Licensee shall not register any Domain Names or domain names
incorporating the Business Concept or the "Licensed Marks", or any name
or xxxx similar to the "Licensed Marks", with any domain name registrar,
without the express written consent of the Licensor.
ARTICLE 12
INDEMNIFICATION
A. Licensee agrees to defend, indemnify and hold harmless Licensor,
its principals, directors, officers, employees, and/or agents from and
against any and all liabilities, penalties, claims, demands, suits, and
causes of action of any nature whatsoever, whether groundless or
otherwise, and any and all damages, costs, and expenses sustained or
incurred (including cost of defense, settlement, and reasonable
attorneys' fees), asserted by or on behalf of any person or entity
arising out of the production, marketing, distribution, use, offer for
sale, or sale of any Products and/or products and materials under the
Intellectual Property by Licensee or under this Agreement, or out of any
breach of representation or warranty by Licensee, or out of the
negligent acts or omissions or Licensee, its agents, representatives,
and/or employees in connection with the production, manufacture,
distribution, use, offer for sale, or sale of any Product and/or
products and materials under the Intellectual Property by Licensee or
under this Agreement. Further, Licensee must defend any such actions
with counsel of its own choosing. The provisions of this paragraph and
Licensee's obligations hereunder shall survive the expiration or
termination of this Agreement.
B. Licensor agrees to defend, indemnify and hold harmless Licensee,
its principals, directors, officers, employees, and/or agents from and
against any and all liabilities, penalties, claims, demands, suits, and
causes of action of any nature whatsoever, whether groundless or
otherwise, and any and all damages, costs, and expenses sustained or
incurred (including cost of defense, settlement and reasonable
attorneys' fees), asserted by or on behalf of any person or entity
arising out of an allegation of superior rights by a third party in and
to the Business Concept or any part thereof. Further, Licensor may
defend any such actions with counsel of its own choosing, has the right
to settle or compromise any such dispute or action when in its sole
judgment settlement or compromise is warranted, and has the sole right
to decide whether to appeal any adverse decision of a tribunal in any
action. The provisions of this paragraph and Licensee's obligations
hereunder shall survive the expiration or termination of this Agreement.
C. Licensor will give Licensee notice of any action, claim, suit or
proceeding in respect of which indemnification may be sought and
Licensee shall defend such action, claim, suit or proceeding on behalf
of Licensor. In the event appropriate action is not taken by Licensee
within thirty (30) days after its receipt of notice from Licensor, then
Licensor shall have the right, but not the obligation, to defend such
action, claim, suit or proceeding. Licensor may, subject to Licensee's
indemnity obligation under subparagraph A above, be represented by its
own counsel in any such action, claim, suit or proceeding. In any case,
the Licensor and the Licensee shall keep each other fully advised of all
developments and shall cooperate fully with each other in all respects
in connection with any such defense as is made. Nothing contained in
this paragraph shall be deemed to limit in any way the indemnification
provisions of the subparagraph A above except that in the event
appropriate action is being taken by Licensee by counsel reasonably
acceptable to Licensor, with respect to any not-trademark or
intellectual property, action, claim, suit or proceeding. Licensor shall
not be permitted to seek indemnification from Licensee for attorneys'
fees and expenses incurred without the consent of Licensee. In
connection with the aforesaid actions, claims and proceedings, the
parties shall, where no conflict of interest exists, seek to be
represented by common reasonably acceptable counsel. In connection with
actions, claims or proceedings involving trademark or other intellectual
property matters which are subject to indemnification hereunder,
Licensor shall at all times be entitled to be represented by its own
counsel, for whose reasonable fees and disbursements it shall be
entitled to indemnification hereunder.
ARTICLE 13
LICENSED XXXX(S), BUSINESS CONCEPT, DOMAIN NAMES
Licensee acknowledges that (i) Licensor is the owner of the Business
Concept, Intellectual Property, "Licensed Marks" pertaining to the
Business Concept, when and if applied for, and Domain names in the
Territory, (ii) the rights of Licensor in the Business Concept,
Intellectual Property, "Licensed Marks" and Domain Names are valid and
enforceable. Licensee covenants and agrees not to challenge Licensors'
ownership of the Business Concept, Intellectual Property, "Licensed
Marks", and Domain Name.
Licensee shall not attempt to acquire any ownership rights in the
Business Concept, Intellectual Property, "Licensed Marks" or Domain
Names or any other right adverse to Licensors' interests in the Business
Concept, Intellectual Property, "Licensed Marks" or Domain Names.
Nothing herein shall be deemed, intended, or implied to constitute a
sale or assignment of any part of the Business Concept, including the
Intellectual Property, the "Licensed Marks" or Domain Names to Licensee.
Licensee agrees that its use of the Business Concept, Intellectual
Property, "Licensed Marks" or Domain Names under this Agreement shall
inure to the benefit of Licensors, and this Agreement does not confer on
Licensee any goodwill or ownership interest in the "Licensed Xxxx",
other than as implied by this Agreement.
Licensee hereby covenants that it shall not: (i) use the "Licensed
Marks" pertaining to the Business Concept, if and when applied for and
received by Licensor, in any way that may tend to impair their validity
as proprietary Trade Marks or service "Licensed Marks"; (ii) take any
action that would jeopardize or impair Licensor=s ownership of the
"Licensed Marks" or the legality and/or enforceability of the "Licensed
Marks", or Licensor=s right to use the "Licensed Marks"; (iii) either
directly or indirectly, apply for the registration or renewal of
registration of the "Licensed Marks" or any variation thereon, or any
trademark, service xxxx, domain name, or other matter which contains or
is similar to, the "Licensed Marks", without the prior written consent
of Licensors; (iv) or attempt to register in any jurisdiction, directly
or indirectly, any trademarks, service marks, domain name, or other
matter containing or similar to any trademarks, service marks, domain
name, or name as to which Licensors or their Affiliates have any
registration or proprietary rights; or (v) sub-license any of the
"Licensed Marks", except as permitted by this Agreement.
Licensee shall not join any name or names with the Licensed Xxxx(s) so
as to form a new xxxx, unless and until Licensor consents thereto in
writing. Licensee acknowledges the validity of the Licensed Xxxx(s), the
secondary meaning associated with the Licensed Xxxx(s), and the rights
of Licensor with respect to the Licensed Xxxx(s) in the Territory in any
form or embodiment thereof and the goodwill attached or which shall
become attached to the Licensed Xxxx(s) in connection with the business
and goods in relation to which the same has been, is or shall be used.
Sales by Licensee and any Sub-licensee shall be deemed to have been made
by Licensor for purposes of trademark registration and all uses of the
Licensed Xxxx(s) by Licensee and or any Sub-licensee shall inure to the
benefit of Licensor. Licensee shall not, at any time, do or suffer to be
done, any act or thing which may in any way adversely affect any rights
of Licensor in and to the Licensed Xxxx(s) or any registrations thereof
or which, directly or indirectly, may reduce the value of the Licensed
Xxxx(s) or detract from its reputation.
Notwithstanding anything to the contrary contained herein, all uses of
the Licensed Xxxx(s), materials using or incorporating the Licensed
Xxxx(s) and items used in connection with the Licensed Xxxx(s) are
subject to Licensor's review and approval.
The "Licensed Xxxx(s)" may only be used under the License in the same
manner, including in the same style, typeface, and graphic appearance,
as supplied by Licensor. Notwithstanding any other provision of this
Agreement, Licensee may not combine the "Licensed Xxxx(s)" with any
other trademark or service xxxx (including any logo, design, or symbol),
domain name (except for the Domain Names), name, prefix or suffix, or
any other modifying word or term or matter without Licensors' prior
written approval.
Upon the expiration or termination of this Agreement for any reason,
Licensee, except as specified below, will immediately discontinue use of
the Licensed Marks, will not resume the use thereof or adopt any
colorable imitation of the Licensed Xxxx or any of its parts.
ARTICLE 14
INFRINGEMENT
Licensee shall immediately notify Licensor of any unauthorized use
and/or suspected infringement of the Business Concept, Intellectual
Property or Licensed Marks. Such notification on shall include, without
limitation, immediately forwarding to Licensor any and all documents
relating to any such unauthorized use or suspected infringement and
providing Licensor with any and all facts and circumstances relating to
such unauthorized use or suspected infringement.
Licensor shall have the primary, and in the first instance sole, right
to institute a suit for infringement, unfair competition, or other
action with respect to any unauthorized use or suspected infringement.
Licensor shall have the sole discretion to determine how to handle or
otherwise deal with any infringement or unauthorized use of the
Intellectual Property , including the right to settle or otherwise
compromise any dispute or suit and shall promptly notify Licensee of its
decision. Licensor shall have no duty to initiate such litigation if in
its sole judgment such litigation is not wanted or is not in its best
interests.
Licensee agrees that it shall, at all times, reasonably cooperate with
Licensor and its counsel, with respect to any unauthorized use or
suspected or alleged infringements at Licensor's expense, including, but
not limited to, having Licensee's principals, directors, employees,
officers, and/or agents testify, and making available any records,
papers, information, specimens, and the like when requested by Licensor.
Licensee may join and be represented in, at its own expense by its own
counsel, any proceeding relating to any unauthorized use or suspected
infringement to prow its own interests.
If Licensor decides in its discretion not to take any action with
respect to an unauthorized use or suspected infringement, then Licensor
may, at its own option and sole expense, take such action on its our
behalf as it deems appropriate and any damages, recovery, settlement, or
compromise obtained thereby shah be for the account of Licensee.
Any damages and/or recovery received pursuant to such litigation or
settlement or compromises shall be the sole and exclusive property of
Licensor.
ARTICLE 15
TERMINATION
If Licensor, on the one hand, or Licensee, on the other, fails to
discharge a material obligation or to correct a material default
hereunder, Licensee or Licensors, respectively, may give written notice
to such other Party specifying the material obligation or material
default and indicating an intent to terminate this Agreement if the
material obligation is not discharged or the material default is not
cured. The Party receiving such notice shall have sixty (60) days from
the date of receipt of such notice to discharge such material obligation
or cure such material default. If such material obligation is not
discharged or such material default is not cured by the end of such
sixty (60) day period, the non-defaulting Party may terminate this
Agreement immediately by written notice given at any time after the end
of such period; provided that the material obligation has not been
discharged or the material default is continuing on the date of such
termination notice.
Upon the expiration or termination of this Agreement, Licensee will
promptly discontinue any and all use of the Trade Xxxx, Intellectual
Property, copyrighted materials and all other aspects of the Business
Concept.
Upon the expiration or termination of this Agreement, Licensee will,
destroy and/or delete the Intellectual Property from all of Licensee's
publications, stationery, business cards, promotional materials,
computer hard-drives, and all other documents related to the Business
Concept.
Any amounts paid by the Licensee up to the termination of the Agreement,
for whatever reason, shall be non-refundable.
ARTICLE 16
RIGHTS ON EXPIRATION OR TERMINATION
A. If this Agreement expires or is terminated for any reason, Licensee
shall cease to use any part of the Business Concept, Intellectual
Property or "Licensed Xxxx".
B. In the event of termination in accordance with Article 15 above,
Licensee shall pay to Licensor, any fees then owed to Licensor pursuant
to this Agreement or otherwise.
C. Notwithstanding any termination in accordance with Article 15 above,
Licensor shall have and hereby reserve all rights and remedies which it
has, or which are granted to it by operation of law, to enjoin the
unlawful or unauthorized use of the Business Concept, Intellectual
Property or Licensed Xxxx, and to collect any amounts due and payable by
Licensee pursuant to this Agreement and to be compensated for damages
for breach of this Agreement.
D. All Sub-Licenses sold will be assigned to the "Licensor".
ARTICLE 17
NOTICES
(A) To be effective, unless otherwise specified in this Agreement,
all notices and demands, consents, and other communications under this
Agreement must be in writing and must be given by (a) depositing the
same in the United States mail, postage prepaid, certified or
registered, return receipt requested, (b) delivering the same in person
and receiving a signed receipt therefore, (c) sending the same by a
nationally recognized overnight delivery service, or (d) telecopy
(promptly confirmed by telephone and followed by personal or nationally
recognized overnight delivery). For purposes of notices, demands,
consents, and other communications under this Agreement, the addresses
of the Parties (and their respective counsel
(B) Notices, demands, consents, and other communications mailed in
accordance with the foregoing clause (a) shall be deemed to have been
given, made, and received three (3) Business Days following the date so
mailed. Notices, demands, consents, and other communications given in
accordance with the foregoing clauses (b) and (d) shall be deemed to
have been given, made, and received when sent on a Business Day or, if
not a Business Day, then the next succeeding Business Day. Notices,
demands, consents, and other communications given in accordance with the
foregoing clause (c) shall be deemed to have been given, made, and
received when delivered or refused on a Business Day or, if not a
Business Day, then the next succeeding Business Day. Any Party may
designate a different address to which notices or demands shall
thereafter be directed and such designation shall be made by written
notice given in the manner hereinabove required, provided that at all
times each Party shall be required to maintain a notice address in the
continental United States.
Notices shall be sent to:
If to Licensor: Venitech, LLC
000 Xxxxxxxxxx Xxxxxx, Xx. 000,
Xxxxxx XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Licensee: Community Alliance Inc.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxx Xxxx. Xxxxxxxx 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
Notice of the change of any such address shall be duly given by either
party to the other in the manner herein provided.
ARTICLE 18
COMPLIANCE WITH LAW
Licensee shall comply in all material respect with all applicable Laws
now and hereinafter enacted in connection with the Business Concept, its
use of the "Licensed Marks", and the performance of its other
obligations under this Agreement.
Licensee, at its sole expense, shall be responsible for obtaining and
maintaining all licenses, permits, and regulatory approvals which are
required by any Governmental Entity with respect to this Agreement and
to comply in all material respect with any requirements of such
Governmental Entity. Licensee shall furnish Licensors with written
evidence from such regulatory authorities of any such licenses, permits,
clearances, authorizations, or regulatory approvals at Licensors'
request. Any Sub-license granted by the Licensee, likewise shall be
responsible for obtaining any permits, licenses, or regulatory
approvals, if required, in their respective territory. Licensee shall
furnish Licensors with written evidence from such regulatory authorities
of any such licenses, permits, clearances, authorizations, or regulatory
approvals at Licensors' request.
ARTICLE 19
INTELLECTUAL PROPERTY PROTECTION
Licensee shall, at its own expense, notify Licensors, within ten (10)
Business Days after it becomes aware thereof, of (i) any use,
application to register, or registration of any word, name, phrase,
term, logo, or design, or any combination of any of the foregoing, that
might constitute infringement or other violation of the "Licensed
Marks"; or (ii) any claim of any rights in a Xxxx, or in any confusingly
similar xxxx, adverse to Licensors' interests in and to such Xxxx, or
any claim that Licensee's use of a Xxxx infringes or otherwise violates
the rights of any other Person.
Licensee agrees, at its own expense and as Licensors may reasonably
request, to (i) cooperate fully with Licensors in the prosecution and
elimination of any infringement or other violation of the "Licensed
Xxxx(s)", including, but not limited to, joining in a suit or proceeding
against a Person making such infringing or other violating use; and (ii)
execute any further agreements or documents as may become necessary or
useful in connection therewith.
ARTICLE 20
ASSIGNABILITY
Neither this Agreement nor the license or other rights granted hereunder
may be assigned, sublicensed or transferred by Licensee, whether to a
Subsidiary or Affiliate except as approved by Licensor in advance, in
writing, which approval will not be unreasonably denied. This Article
does not apply to the rights granted to a Sub-licensee by the Licensee,
in a particular Territory, under the terms of a standard sub-license
agreement.
Licensor retains the right to assign any and all of its rights and
interests in this Agreement and the Intellectual Property subject to the
limitations set forth herein. This Agreement shall be binding upon any
such assignee as well as upon any successor of Licensor in ownership or
control of the intellectual Property.
Other than the license granted herein, all right, title, and interest in
and to the Intellectual Property is owned and expressly reserved by
Licensor for its own use and benefit subject to the terms and conditions
of this Agreement.
Except as relates to the enforcement of any rights granted to Licensee
hereunder, Licensee will not at anytime challenge the validity or
enforceability of the Intellectual Property and/or of any
registrations thereof, or challenge the Licensor's ownership right,
tide, or interest in or to the Intellectual Property or that of any
successor, assignee, affiliate, or subsidiary of Licensor.
ARTICLE 21
REMEDIES FOR BREACH
Licensee acknowledges and agrees that (i) the Business Concept,
including Intellectual Property and Trade Xxxx constitute valuable
property of Licensors and have acquired a valuable reputation and
goodwill; (ii) violation by Licensee or its directors, officers,
employees, agents, subcontractors, or Sub-licensees of any provision of
this Agreement may cause Licensors irreparable injury not compensable by
money damages for which Licensors may not have an adequate remedy at
law; and (iii) if Licensors institute an action or proceeding to enforce
the provisions of this Agreement and seek injunctive or other equitable
relief as may be necessary to enjoin, prevent, or curtail any breach
thereof, threatened or actual, then Licensors shall not be required to
prove irreparable injury, and shall be entitled to such relief without
the posting of any bond or other security.
ARTICLE 22
RESOLUTION OF DISPUTES
This Agreement shall be governed by and interpreted in accordance
with the laws of the state of Colorado. The parties agree that the
procedures set forth herein shall be the exclusive means for resolving
any claim, dispute, or controversy arising from or relating to this
Agreement, whether sounding in contract, tort, equity, or otherwise,
including any dispute over the validity and/or scope of this Section or
of any other aspect of this Agreement. Any dispute arising under this
Agreement will be first referred for resolution to each party's
respective management designee. To the extent that such designees cannot
resolve the dispute within ten (10) business days of referral to them,
the parties agree to try in good faith to settle the dispute by
non-binding mediation under the Commercial Mediation Rules of Judicial
Arbitration and Mediation Services, Inc. ("JAMS"). Any and all mediation
hearings shall be held in Denver County, Colorado, unless the parties
agree otherwise. If and to the extent after five (5) days of mediation
with the mediator, the dispute is not settled, or if the mediator
declares an impasse prior to the end of the five (5) day period, then
and only then the aggrieved party may pursue arbitration as set forth
herein. Any arbitration hereunder shall be conducted under the Dispute
Resolution Rules of JAMS as modified herein. Arbitration proceedings
shall take place in Denver County, Colorado, before a single arbitrator
who shall be a lawyer. The parties shall request that JAMS provide them
with a list of five (5) arbitrators and each party, beginning with
Licensee, shall alternately strike one name from such list until one
arbitrator remains and such arbitrator shall conduct the proceedings.
All arbitration proceedings shall be confidential. Neither party shall
disclose any information about the evidence produced by the other party
in the arbitration proceedings, except in the course of judicial,
regulatory, or arbitration proceeding, or as may be demanded by
government authority. Before making any disclosure permitted by the
preceding sentence, a party shall give the other party reasonable
advance written notice of the intended disclosure and an opportunity to
prevent disclosure. In connection with any arbitration provisions
hereunder, each party shall have the right to take the deposition of up
to two individuals and any expert witness retained by the other party.
Additional discovery may be had only where the arbitrator so orders,
upon a showing of substantial need. Only evidence that is directly
relevant to the issues may be obtained in discovery. Each party bears
the burden of persuasion of any claim or counterclaim raised by that
party. The arbitration provisions of this Agreement shall not prevent
any party from obtaining injunctive or other equitable relief from a
court of competent jurisdiction to enforce the obligations for which
such party may obtain provisional relief pending a decision on the
merits by the arbitrator. Each of the parties hereby consents to the
jurisdiction of Colorado courts for such purpose. The arbitrator shall
have authority to award any remedy or relief that a court of the State
of Colorado could grant in conformity to applicable law, except that the
arbitrator shall have no authority to award attorneys' fees or punitive
damages. Any arbitration award shall be accompanied by a written
statement containing a summary of the issues in controversy, a
description of the award, and an explanation of the reasons for the
award. The arbitrator's award shall be final and judgment may be entered
upon such award by any court.
ARTICLE 23
EFFECT OF TERMINATION
(a) Upon the expiration or termination of this Agreement for any
reason:
(i) Subject to the terms of this Agreement, Licensee's License
immediately and automatically shall terminate, and all rights in the
Business Concept, including the Intellectual Property, including any
"Licensed Xxxx" granted to Licensee under this Agreement shall revert to
Licensor; and
(ii) Licensee shall, within sixty (60) days from the termination of
this Agreement (such period, the "Transitional Period"), discontinue
using the "Licensed Marks" and remove the "Licensed Xxxx" from all
promotional and advertisement materials, stationery, computer and
electronic systems (including all Internet websites), and any and all
documents (whether in written, electronic, optical, or other form) in
the possession or control of Licensee, and during the Transitional
Period (the last day of such period being the "Cessation Date") all of
the obligations of Licensee hereunder shall remain in force; provided,
however, that Licensee shall not be required to remove the "Licensed
Marks" from internal business records.
(b) Upon expiration of the Transitional Period, Licensee shall: (i)
destroy all materials utilizing the "Licensed Marks" and provide
confirmation of same to Licensors; (ii) not use any trademark, service
xxxx, domain name, or name that is confusingly similar to or dilutive of
the "Licensed Marks", and at Licensors' request Licensee will assign any
rights to the "Licensed Marks" to one or more of the Licensors or an
Affiliate of one of the Licensors, as requested by Licensors; (iii)
remove all content from any Internet website corresponding to the Domain
Names, and shall (x) post, at the request of Licensors and subject to
the prior written approval of Licensors, a notice or legend which shall
state that the license granted hereunder has been terminated and any
other information reasonably requested by Licensors, including hypertext
links to one or more of Licensors', or its Affiliates', other Internet
websites; or (y) redirect the Domain Names to a website of Licensors'
choosing; (iv) take all steps necessary, and fully cooperate with
Licensors and/or their Affiliates, to remove the "Licensed Marks" from
Licensee's trade and assumed names and Sub-licensee's corporate names
and cancel any recordation of such names with any Governmental Entity;
and (v) change any corporate, trade, and assumed name that uses the
"Licensed Marks" to a name that does not include the "Licensed Marks" or
any variation, derivation, or colorable imitation thereof.
ARTICLE 24
MISCELLENOUS
(A) RIGHT AND AUTHORITY: The Parties respectively represent and
warrant that they have full right, power and authority to enter into
this Agreement and perform all of their obligations hereunder and that
they are under no legal impediment which would prevent their signing
this Agreement or consummating the same. Licensor represents and
warrants that it has the right to license Licensee the Business Concept
including the Licensed Marks, when and if granted, and that Licensor has
not granted any other existing license to use the Licensed Marks on
products covered hereunder in the Territory and that no such license
will be granted during the term of this Agreement except in accordance
with the provisions hereof.
Not withstanding anything to the contrary contained in this
Agreement, Licensor shall not have the right to negotiate or enter into
agreements with third parties pursuant to which it may grant a license
to use prior to the termination or expiration of this Agreement.
(B) RELATIONSHIP OF THE PARTIES: This Agreement does not
create a partnership, joint venture, or agency relationship between the
parties, and neither Licensee nor Licensor shall have the right, power,
or authority to act as a legal representative of the other, and neither
party shall have any power to obligate or bind the other, or to make any
representations, express or implied, on behalf of or in the name of the
other in any manner or for any purpose. This Article shall also apply
to any Sub-licensee which may enter into an agreement with the Licensee.
(C) VOID PROVISIONS: If any provision or any portion of any
provision of this Agreement shall be held to be void or unenforceable,
the remaining provisions of this Agreement and the remaining portion of
any provision held void or unenforceable in part shall continue in full
force and effect.
(D) LIMITATION OF LIABILITY: Notwithstanding anything to the
contrary contained herein, in the event Licensee incurs any expenses,
damages or other liabilities (including, without limitation, reasonable
attorneys' fees) in connection with the breach by Licensor of any term
or provision hereof, Licensor's liability to Licensee thereunder shall
not exceed the remuneration, excluding reimbursement of expenses,
actually paid to Licensor by Licensee hereunder.
(E) CONSTRUCTION: This Agreement shall be construed without
regard to any presumption or other rule requiring construction against
the party causing this Agreement to be drafted. If any words or phrases
in this Agreement shall have been stricken out or otherwise eliminated,
whether or not any other words or phrases have been added, this
Agreement shall be construed as if those words or phrases were never
included in this Agreement, and no implication or inference shall be
drawn from the fact that the words or phrases were so stricken out or
otherwise eliminated.
(F) FORCE MAJEURE: Neither party hereto shall be liable to the
other for delay in any performance or for the failure to render any
performance under the Agreement (other than payment or any accrued
obligation for the payment of money) when such delay or failure is by
reason of lockouts, strikes, riots, fires, explosions, blockade, civil
commotion, epidemic, insurrection, war or warlike conditions, terrorism
or threat of terrorism, the elements, embargoes, act of God or the
public enemy, compliance with any law, regulation or other governmental
order, whether or not valid, or other similar causes beyond the control
of the party effected. The party claiming to be so affected shall give
notice to the other party promptly after it learns of the occurrence of
said event and of the adverse results thereof. Such notice shall set
forth the nature and extent of the event. The delay or failure shall not
be excused unless such notice is so given. Notwithstanding any other
provision of this Agreement, either party may terminate this Agreement
if the other party is unable to perform any or all of its obligations
hereunder for a period of six (6) months by reason of said event as if
the date of termination were the date set forth herein as the expiration
date hereof. If either party elects to terminate this Agreement under
this paragraph, Licensee shall have no further obligations for the
License Fee beyond the date of termination (which shall be prorated if
less than an Annual Period is involved) and shall be obligated to pay
any Sales Royalty which is then due or becomes due.
(G) BINDING EFFECT: This Agreement shall inure to the benefit
of and shall be binding upon the parties, their respective successors,
Licensor's transferees and assigns and Licensee's permitted transferees
and assigns.
(H) CAPTIONS: The captions used in this Agreement have been
inserted only for reference purposes. The captions and order of such
captions shall not be deemed to govern, limit, modify, or in any manner
affect the scope, meaning, or intent of any of the provisions and/or
terms of this Agreement nor shall any captions be given any legal
effect.
(I) WAIVER INTEGRATION, ALTERATION: No provision of this
Agreement shall be deemed to have been waived unless such waiver is
contained in a written notice given to the Party claiming such waiver
has occurred. A waiver or consent, express or implied, of or to any
breach or default by any Person in the performance by that Person of its
obligations with respect to this Agreement is not a consent or waiver to
or of any other breach or default in the performance by that Person of
the same or any other obligations of that Person with respect to this
Agreement. Failure on the part of a Person to complain of any act of any
Person or to declare any Person in default with respect to this
Agreement, irrespective of how long that failure continues, does not
constitute a waiver by that Person of its rights with respect to that
default until the applicable statute-of-limitations period has run.
Acceptance of payments by Licensor shall not be deemed a waiver by
Licensor of any violation of or default under any of the provisions of
this Agreement by Licensee.
(J) MODIFICATION OF AGREEMENT: Any modification or amendment
of this Agreement shall be effective if made in writing and signed by
both parties.
(K) ILLEGAL OR UNENFORCEABLE: If, any part, term, or
provision of this Agreement shall he found illegal, unenforceable, or in
conflict with any valid controlling Law, the validity of the remaining
portions of any provisions, and any other provisions in this Agreement,
shall not be affected thereby.
(L) THIRD PARTIES: Third Parties. Except as specifically set
forth or referred to herein, nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any person,
corporation or other entity other than the parties hereto and their
successors or assigns, any rights or remedies under or by reason of this
Agreement.
(M) ASSIGNMENT/DELEGATION: Licensee shall not assign or
delegate or otherwise transfer their obligations under this Agreement
without the prior written consent of Licensor. Any assignment or other
transfer in violation of the foregoing sentence shall be void and of no
force and effect. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and
assigns.
(N) PARAGRAPH HEADINGS: The paragraph headings in this
Agreement are for convenience of reference only and shall be given no
substantive effect.
(O) COUNTERPARTS: This Agreement may be executed in several
counterparts, each of which will be deemed an original but all of which
will constitute one and the same instrument.
(P) INVALIDITY: Wherever possible, each provision hereof shall
be interpreted in such manner as to be effective and valid under
applicable law, but in case any one or more of the provisions contained
herein shall, for any reason, be held to be invalid, illegal, or
unenforceable in any respect, such provision shall be ineffective only
to the extent of such invalidity, illegality, or unenforceability
without invalidating the remainder of such invalid, illegal, or
unenforceable provision or provisions or any other provisions hereof,
unless such a construction would be unreasonable.
(Q) AMENDMENT: Except as expressly provided herein, this
Agreement may be amended only by a written agreement executed by all of
the Parties. Following such amendment, this Agreement, as amended, shall
be binding upon the Parties.
(R) EFFECT OF WAIVER AND CONSENT: No provision of this
Agreement shall be deemed to have been waived unless such waiver is
contained in a written notice given to the Party claiming such waiver
has occurred. A waiver or consent, express or implied, of or to any
breach or default by any Party in the performance by that Party of its
obligations with respect to this Agreement is not a consent or waiver to
or of any other breach or default in the performance by that Party of
the same or any other obligations of that Party with respect to this
Agreement. Failure on the part of a Party to complain of any act of any
Party or to declare any Party in default with respect to this Agreement,
irrespective of how long that failure continues, does not constitute a
waiver by that Party of its rights with respect to that default until
the applicable statute-of-limitations period has run.
(S) HEADINGS: The headings of the Articles and Sections
herein are inserted for convenience
(T) INTERPRETATION: Each definition in this Agreement includes
the singular and the plural. The words "include" or "including" when
used in this Agreement shall mean "including, without limitation". The
word "or" shall not be exclusive. Except as otherwise stated, reference
to Articles, Sections, Schedules and Exhibits means the Articles,
Sections, Schedules and Exhibits of this Agreement. The Schedules and
Exhibits are hereby incorporated by reference into and shall be deemed a
part of this Agreement.
(U) SEVERABILITY: If, any part, term, or provision of this
Agreement shall be found illegal, unenforceable, or in conflict with any
valid controlling Law, the validity of the remaining portions of any
provisions, and any other provisions in this Agreement, shall not be
affected thereby.
(V) GOVERNING LAW: THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO WITHOUT
REGARD TO THE CHOICE OF LAWS OR RULES THEREOF, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS. Any legal suit, action, or proceeding against any of the
Parties arising out of or relating to this Agreement shall only be
instituted in any federal or state court in Denver, Colorado, and each
Party hereby irrevocably submits to the exclusive jurisdiction of any
such court in any such suit, action, or proceeding. The Parties hereby
agree to venue in such courts and hereby waive, to the fullest extent
permitted by law, any claim that any such action or proceeding was
brought in an inconvenient forum. Each of the Parties hereby irrevocably
waives all right to trial by jury in any suit, action, or proceeding
arising out of or relating to this Agreement.
(W) ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties hereto with respect to
the subject matter hereof, supersedes all other agreements,
representations, understandings, and warranties, express or implied,
oral or written understandings and agreements relating thereto
concerning the Business Concept and any part thereof, and may not be
modified, discharged or terminated, nor may any of the provisions hereof
be waived, orally.
SIGNATURES
VENITECH, LLC
By: /s/ Xxxx Daily
____________________________________ Date: ______________, 2008
Xxxx Daily - Managing Director
COMMUNITY ALLIANCE, INC.
By: /s/Xxxx X. Xxx
_____________________________________ Date: ____________, 2008
Xxxx X. Xxx, President
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