HIGH FLYTE INTERNATIONAL LTD. IN TRUST
The Licensor
-and-
OPTIMA GLOBAL CORPORATION
The Licensee
LICENCE AGREEMENT
-------------------
XXXXXXX, STEW ART & MORNINGSTAR
Barristers & Solicitors
00 Xxxx Xxxxxx, Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx, Xxxxxx
L2R 3H5
Canadian Corporate Solicitors for
HIGH FLYTE INTERNATIONAL LTD. IN TRUST
Attention: Xx. Xxxx X. Xxxxxxx
TABLE OF CONTENTS
Page
Parties and Recitals 1
Article One: Interpretation
Section 1.01 Specific Definitions 2-4
Article Two: Grant of Licence
Section 2.01 Grant 4
2.02 Exclusive in the Territory 5
2.03 Loss of Exclusive Rights 5
Article Three: Royalties and Payments
Section 3.01 Exclusive Territory 5-6
3.02 Time and Manner of Quarterly Payments 6-7
3.03 Inspection or Audit 7-8
Article Four: Period of Licence
Section 4.01 Term 8
4.02 Renewal 8
Article Five: Patent Applications
Section 5.01 Good Faith Negotiations 8
Article Six: Representations, Warranties and Covenants
Section 6.01 Licensor's representations, warranties
& covenants 9-10
6.02 No other representations, warranties
& covenants 10
6.03 Licensee's representations,
warranties & covenants 10-11
Article Seven: Technology
Section 7.01 Technical information/Assistance
from Licensor 11
Article Eight: Confidentiality
Section 8.01 Confidentiality 11-12
Article Nine: Marketing
Section 9.01 Demand for Product in the Territory 12-13
9.02 Marketing Plan 13
Article Ten: Maintaining Exclusivity
Section 10.01 Annual Minimum Performance in the Territory 13
10.02 Consequences of Default in 2002 and thereafter 13-14
Article Eleven: Protection of Licenced Technology
Section 11.01 Infringement 14
11.02 Validity 15
11.03 Grey Market Sales 15
11.04 Marking 15
11.05 Quality Control 15
Article Twelve: Licence Improvements
Section 12.01 Patent Improvements by Licensor 15
12.02 Patent Improvements by Licensee or Affiliate 15-16
12.03 Consultation with Licensor 16
Article Thirteen: Sample and Parts
Section 13.01 Purchase of Units from Licensee 16
Article Fourteen: Non-Competition
Section 14.01 Non-Solicitation and Non-Competition 16-17
Article Fifteen: Termination
Section 15.01 Termination by Licensor 17-18
15.02 Termination by Licensee 18
15.03 Force Majeure 18
15.04 Results of Termination or Expiry 18-19
Article Sixteen: Insurance
Section 16.01 Disclaimer of Liability 19
Article Seventeen: General
Section 17.01 Governing Law 19
17.02 Arbitration 19-20
17.03 Notice 20
17.04 Assignment and Change of Control 20-21
17.05 Waiver 21
17.06 Funds 21
17.07 No Partnership 21
17.08 Severability 21
17.09 Counterparts 21
17.10 Facsimile 21
17.11 Successors and Assigns 21
Signatures 22
Schedule "A" -Jurisdictions of Patent 23
Schedule "B" -Third Party Confidentiality & Ownership Agreement 24-26
LICENCE AGREEMENT
This Agreement is made this 1 day of September,2000.
BETWEEN:
HIGH FLYTE INTERNATIONAL LTD.
In trust, a company incorporated under the laws
of Bermuda,
(hereinafter called the "Licensor")
-and-
OPTIMA GLOBAL CORPORATION,
a Delaware public company having its head
office at 000 Xxxxx X xxxxx, Xxxxx 000,
Xxxx Xxxxx, Xxxxxxx, X.X.X.
(hereinafter called the "Licensee")
WHEREAS the Licensor is the trustee for the owner of certain new and useful
inventions and improvements which includes electronic scoring dart boards, and
intends to grant the Licensee an exclusive license in the Territory to all
right, title and interest in and to U .S. Patent No. 5,486,007 issued January
23, 1996, and Continuation in Part No. 5,613,685 issued March 25, 1997, relating
to electronic scoring dart boards;
AND WHEREAS the Licensee wishes to obtain an exclusive licence in the
Territory to manufacture, market, advertise, sell or otherwise distribute an
electronic scoring dart board (hereinafter defined as the "Licenced Products"),
and a licence under the Licenced Patent and other intellectual property rights
of the Licensor for the Territory;
AND WHEREAS the Licensor has full power and authority to enter into this
Agreement;
NOW THEREFORE in consideration of the premises and the mutual covenants
herein contained, the parties agree as follows:
ARTICLE ONE
INTERPRETATION
1.01 Specific Definitions. Whenever used in this Agreement, including the
recitals and schedules unless there is something in the subject matter or
context inconsistent therewith, the following words and terms shall have the
respective meanings ascribed to them as follows:
(a) " Affiliate" of a person shall be interpreted broadly to apply to any
person, corporation, firm or other entity which controls, is controlled by or is
under common control of such person, ("control" shall also be interpreted
broadly) and includes any corporation the majority of the shares of which
carrying the right to elect at least a majority of the directors are held,
directly or indirectly, by or through any other corporation or corporations, by
that person;
(b ) " Agreement" means this Agreement entitled "Licence Agreement" and the
schedule annexed hereto;
(c) "Change of Control" means, in the case of any corporation or
partnership, the transfer or issue by sale, assignment, subscription,
transmission on death, mortgage, charge, security interest, by operation of law,
or otherwise, of any shares, voting rights or interest which would result in any
change in the effective control of such corporation or partnership, unless such
change occurs as a result of trading in the shares of a corporation listed on a
recognized stock exchange in Canada or the United States and then only so long
as the Licensor receives assurances reasonably satisfactory to it that there
will be a continuity of management and of business practices of such corporation
or partnership notwithstanding such change of control;
(d) "Copyright Work" means all printed, written or other materials and
works (including the Technical Information and computer programs and chips)
relating to the Licenced Products; I I
(e) "European Economic Community" means those countries in Europe belonging
to the common market organization initially arising from the Treaty of Rome,
and, including those additional countries admitted as full members, as of 1986;
being Belgium, France, the Federal Republic of Germany, Italy, Luxembourg,
Netherlands, Denmark, Ireland, Britain, Greece, Spain and Portugal, hereafter
collectively referred to in abbreviation as the "E.E.C.";
(f) "Force Majeure" means any event of fire, flood or other act of God;
strikes, lockout or other labour disturbances; freight embargoes, blockages and
government restrictions or regulations, war (declared or undeclared); riots,
insurrections, or other civil commotions; or any other event or cause whether
similar or dissimilar to the foregoing, beyond the control of the party claiming
the benefit thereof;
(g) "Gross Sales" for a particular period means the total invoice price
charged by the Licensee, or any Affiliate of the Licensee, in United States
dollars for all Licensed Products Sold or Distributed by the Licensee during the
Term of this Agreement or any extensions or renewals hereof less all deductions
allowed to or in respect of such total invoice price only if they are set forth
separately on each invoice evidencing the sale or distribution of such Licenced
Product or in any accompanying or subsequent credit voucher relating thereto,
including as an allowed deduction all (i)sales, excise, consumption and similar
type taxes; (ii) freight, transportation, and insurance costs paid by the
Licensee; and (iii) special order or cash discounts. In computing the Gross
Sales for a particular period, each charge, sale or distribution upon
installment or credit shall be treated as a sale or distribution for the full
invoice price in the month during which such charge, sale or distribution shall
be made, irrespective of the time when the Licensee shall receive payment
(whether full or partial) therefore. The words "Sold", "Sale" or "Distribution"
means for the purposes of this Agreement the shipment of a Licenced Product to a
party;
(h) "Improvement" means any design change or design modification made by
the Licensee or the Licensor to the Licenced Products or any, process or
apparatus related to the Licenced Products or forming part of the Technical
information;
(i) "Licenced Patent" means any applications (including any proposed
applications in respect to any variation or Improvement of the Licence Products)
for or grants of patents in the Territory covering the Licenced Products their
composition, design, manufacture and sale, and includes:
(a) U.S. Patent 5,486,007 issued January 23, 199d, and Continuation in
Part No. 5,613,685 issued March 25, 1997, and those Patents relating to the
Licenced Product outside the Territory attached hereto as Schedule " A;
(b ) any patents resulting there from; and
(c) reissues, divisions, continuations, continuations-in-part,
extensions, renewals, substitutions, confirmations, registtations and
revalidations of any such patents or patent applications;
(j) "Licenced Products" (in the singular referred to as a "Licenced
Product") means an electronic scoring dartboard Unit, consisting of an
electro-mechanical dartboard, a display scoreboard, related electronic and
mechanical components (including computer chip and software program) and
cabinetry , all of which are so interrelated that when the dartboard is struck
by a dart the appropriate score for one or more dart games will be calculated,
properly cumulated, and displayed on the scoreboard for each dart game player,
and any such other similar dart products which may be covered by the Licenced
Patent or the Copyright Works, or any Improvements therein, or which may require
the use or employment of, are based on, or are produced using the Technical
Information, including any Improvements thereto;
(k) "Licensee" means OPTIMA GLOBAL CORPORATION, a Delaware public company
with it head office at 000 Xxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxx, Xxxxxxx, X,X.X.;
(I) "Licensor" means HIGH FLYTE INTERNATIONAL LTD. In Trust, a company
incorporated under the laws of Bermuda;
(m) "Part" means any spare, replacement or component part for any Licenced
Product supplied by the Licensee, directly or indirectly, pursuant to this
Agreement;
(n) "Person" includes a corporation, firm or partnership;
(o) "Technical Information" means all data, know-how, technology, designs,
drawings, studies, test results, manuals, programs, software, technical and
other information, patented or unpatented, protected by copyright or
unprotected, and owned or controlled by the Licensor relating in any way to the
Licenced Products;
(P) "Territory" means the World or such countries in the World if the
Territory is reduced;
(q) "Trade Xxxx" means the trademarks "OPTIMA DARTS", "REAL DARTS" and
"DUAL DARTS" any design form of "OPTIMA DARTS", "REAL DARTS" and "DUAL DARTS" or
any trademarks or any design form of any such trademarks used or intended to be
used by the Licensor or the Licensee to identify the Licenced Products in the
Territory whether registered or unregistered so long as such trademarks or
design form of such trademarks does not infringe the proprietary rights of any
third party ;
(r) "Unit" means one substantially complete Licenced Product whether in
assembled or disassembled form. "Commercial Unit" shall mean a Unit intended for
ultimate sale or distribution to, and use in, commercial, business or
institutional establishments and "Non-Commercial Unit" shall mean a Unit
intended for ultimate sale or distribution to the home consumer; and
(s) "World" means all countries of the World.
ARTICLE TWO
GRANT OF LICENCE
2.01 Grant. Upon the terms, royalty payments and conditions set forth
herein, the Licensor grants to the Licensee for the Term of this Agreement:
2.02 Exclusive in the Territory.
(a) an exclusive right and licence to manufacture, market, sell, advertise
or otherwise distribute the Licenced Product in the Territory;
(b ) an exclusive right and licence to use the Licenced Patents, the
Copyright Works and the Technical Information in the Territory to the extent
necessary to manufacture, advertise, market, sell or otherwise distribute the
Licenced Products;
(c) an exclusive right and licence to use the Trade Xxxx in association
with the Licenced Products and the Parts in the Territory;
Provided that the above grants shall not be construed as a licence by
implication or otherwise, under any patent applications or patents, or under any
trademark or copyright applications or trademarks or copyrights owned by the
Licensor or under which the Licensor has or acquires the right to grant
licences, other than those fitting within the definition of Licenced Products,
Copyright Works, Technical Information, Trademarks, and within the Territory or
the World, as the case may be, as defined herein;
2.03 Loss of Exclusive Ri2hts. If the Licensee loses the exclusive right
pursuant to Article Ten for failure to meet the annual minimum performance
levels, then, in each case, if, and only if, the Licensor by written notice
permits the Licensee to continue with the non-exclusive rights in the Territory
and/or such one or more countries in the World, as the case may be, any other
non-exclusive licensee will be required to pay at least the same or equivalent
percentage royalty that the Licensee is required to pay pursuant to this
Agreement or such other agreement in effect at that time.
ARTICLE THREE
ROYALTIES AND PAYMENTS
3.01 Exclusive Territory. In consideration of the Licensor granting to the
Licensee the exclusive rights in the Territory hereunder the Licensee shall pay
to the Licensor the following payments:
(a) Licence AcQuisition Fee -The Licensee shall pay to the Licensor the sum
of $NIL on the execution of this Agreement;
(b) Percentage Royalty -The Licensee agrees commencing on the date hereof,
to pay quarterly to the Licensor the continuing percentage royalties calculated
as follows:
(i) On all Commercial Units and Non-Commercial Units Sold or Distributed
during the Term of this Agreement, a sum equal to four percent (4%) of the Gross
Sales charged by the Licensee; and
(ii) Throughout the term of this Agreement, a sum equal to fifteen percent
(15%) of the Gross Sales charged by the Licensee for Parts.
3.02 Time and Manner of Quarterly Payments.
(a) Quarterly Payments: Commencing on the date hereof, the Licensee shall
pay to the Licensor the above percentage royalties referred to in this Agreement
on a quarterly basis in each year. The respective quarters shall end upon the
last days of December, March, June and September in each year. The payments for
each quarter shall be paid forty-five (45) days following the end of the quarter
and are to be made on the 15th day of February, May, August and November
respectively in each year;
(b ) Reports: On each payment date the Licensee is also to furnish to the
Licensor a written report for such preceding quarter stating all facts
reasonably necessary to determine the royalties payable in respect of such prior
period, including:
(i) the aggregate total invoice price charged by the Licensee for all Units
and Replacement Parts Sold;
(ii) the number of Units manufactured and Sold by the Licensee;
(iii) the aggregate of continuing percentage royalties due to the Licensor
in respect thereof;
(iv) the Gross Sales received by the Licensee, as that term is defined in
Section 1.01 (f) of this Agreement.
PROVIDED that the Licensee shall maintain available for inspection by the
Licensor in accordance with Section 3.05 below adequate records including but
not limited to:
(x) a list of all Units produced including the Parts incorporated therein,
by reference to their serial numbers and if there has been a Sale or
Distribution for sale, showing the dates said Units were Sold or Distributed for
sale and the name and address of the purchaser and/or distributor; and
(y) a list of all Parts and Replacement Parts Sold or Distributed by the
Licensee, showing the dates of Sale or Distribution and the name and address of
the purchaser and/or distributor.
(c) No Setoff. etc. The above royalties and payments referred to in this
Section will be remitted to the Licensor at the times referred to above without
deduction or
setoff of any nature or kind whatsoever, except for any taxes required to be
withheld and remitted by the Licensee on behalf of the Licensor, and subject to
any relief or reduction in withholding provided by any Tax Treaty or Convention
which may apply.
The Licensee shall promptly furnish the Licensor with a photostat copy of
the official receipts of the appropriate tax authorities for the amount of tax
if any deducted and any other evidence of payment satisfactory to the Licensor .
(d) Payment to Nominee. The Licensor shall have the right to have payments
due to it made to its nominee and receipt of any such payment by any such
nominee shall release the Licensee from any further obligation to the Licensor
to make the payments so received. The Licensee shall not be responsible if the
Licensor and not the nominee is paid;
(e) Overdue Payments. If the Licensee fails to make any royalty or other
payments pursuant to this Agreement on a timely basis, such royalties or
payments shall bear interest at a floating rate equal to two percent (2%) over
the prime rate of interest established by Citibank N.A. [New York State] or its
successor as its prime rate for commercial loans and calculated from the date
when such royalty fee or other payment was due to the actual date of payment;
(f) Royalty Reduction. In the event the Term of this Agreement is extended,
on the expiry, lapse or termination of the last to expire of the Licenced
Patents or upon any holding by any court of competent jurisdiction that any
subsisting Licenced Patents are invalid, the royalties payable pursuant to this
Article Three shall be reduced by one percent (1%) being the amount allocated by
the Licensor to the Licenced Patents.
3.03 Inspection or Audit. During the Term of this Agreement or any renewals
or extensions:
(a) the Licensor or its authorized representative, shall, upon thirty (30)
days prior written notice, have access to the books and records of the Licensee,
during normal business hours to the extent necessary to audit the same and to
verify the calculation of any royalty fee or other payment referred to in this
Agreement or the attainment of the minimum performance levels set out in Article
Ten of this Agreement.
(b) In the event that any such audit shall disclose an understatement of
any royalty fee or other payment, the Licensee shall immediately pay such amount
to the Licensor; provided further, that if any such audit shall disclose an
understatement of any royalty fee or other payment of three per cent (3%) or
more, the Licensee shall pay the Licensor within fifteen (15) days after receipt
of notice from the Licensor, the costs of the audit incurred by the Licensor
together with interest at an annual rate equal to two percent (2%) above the
rate established by Citibank
N.A. [New York State] or its successor from time to time as its prime
interest rate for commercial loans made in New York State calculated from the
date when such royalty fee or other payment was due to the actual date of
payment.
(c) The parties acknowledge and agree that accounting statements or reports
provided by the Licensee which the Licensor does not challenge shall be deemed
to be final and conclusive two (2) years after same are rendered.
ARTICLE FOUR
PERIOD OF LICENCE
4.01 This agreement shall continue in force for ten (10) years commencing
on September lst, 2000, and shall expire on the 31st day of August, 2010, (the
"Term") unless the Term is extended as set out in this section or terminated as
set out in Article 15.
4.02 Renewal. At the request of the Licensee by notice in writing served
upon the Licensor and made not less than six (6) months before the expiry of
this Agreement and, provided all the terms and conditions of this Agreement have
been observed and performed by the Licensee to such date including the minimum
performances set out in Article Ten, the Term of the licence hereby granted
shall be extended for a further initial renewal period of five (5) years (with a
second renewal period of five (5) years) upon the same terms and conditions of
this Agreement except for a right of renewal and minimum performance
requirements to be negotiated (in no event less than the minimum performance
requirements during the final year of the initial term) failing which, this
Agreement shall be automatically terminated. The Licensee shall pay on each
notice of renewal a renewal fee of $150,000.00 (U.S), payable to the Licensor as
it directs.
ARTICLE FIVE
PATENT APPLICATIONS
5.01 Good Faith Negotiations. The parties acknowledge that the Licensed
Patent has potential applications other than the Licensed Products in other
industries (the "Additional Products") and that the Licensor intends to
accordingly exploit the Licensed Patents throughout the World. The parties
further acknowledge that they recognize the mutual benefits that may come to
each other if the Licensor and/or Licensee separately or in consultation with
each other develop Additional Products in respect to which the Licensor desires
to grant to the Licensee, rights to manufacture, market and distribute such
Additional Products upon terms and conditions satisfactory to both parties. The
Licensor and Licensee agree to negotiate in good faith mutually satisfactory
terms, including royalties, permitting the Licensee, to manufacture, market and
distribute such Additional Products designed and developed by the Licensor
and/or the Licensee separately or in consultation with each other, within the
Territory or Territories agreed to at such time or times.
ARTICLE SIX
REPRESENTATIONS. WARRANTIES AND COVENANTS
6.01 Licensor's Representation. Warranties and Covenants. The Licensor
represents, warrants and covenants that during the Term of this Agreement or any
extension or renewal thereof:
(a) It has and will continue to have all right and title in and to the
Licenced Patents, the Copyright Works, the Trade Xxxx and the Technical
Information, which is necessary to effectively grant the licences granted to the
Licensee pursuant to this Agreement;
(b) It will take all reasonable steps to keep the Licensed Patent in force
and duly renewed in the Territory, or the rest of the World, as the case may be,
provided any fees, expenses or annuities necessary to process to completion or
to maintain the Licenced Patent in force shall be paid by the Licensee or if
paid by the Licensor, reimbursed by the Licensee fourteen (14) days following
proof of payment;
(c) The U.S. Patent No. 5,486,007 issued January 23, 1996, and Continuation
in Part No. 5,613,685 issued March 25, 1997, will be in force, and the Licensor
has obtained or applied for Patents in the jurisdictions set out in Schedule " A
" attached to this Agreement;
(d) The Licensor is not aware of and has no knowledge of any proceedings
pending or threatened for the expungement, revocation, impeachment or
cancellation of the application;
(e) It is not aware of any claim or assertion of any person that the
manufacture and sale of the Licenced Products in the Territory will infringe any
proprietary rights of any other person;
(f) The Licensor will in accordance with the terms and conditions of this
Agreement ensure that the rights granted herein to the Licensee remain exclusive
in the Territory;
(g) The Licensor shall not disclose the business and affairs of the
Licensee to any third party and shall in this regard maintain confidential any
report or financial information received by the Licensor from the Licensee
pursuant to this Agreement and marked "Confidential";
(h) Neither the execution nor the delivery of this Agreement by the
Licensor nor the fulfillment of or compliance with the terms and provisions
hereof by the Licensor shall contravene any provision of law, including without
limitation, any statute, rule, regulation, judgment, decree, order or permit
applicable to the Licensor;
(i) The Licensor knows of no prior use of the Trademark by others than
those authorized by the Licensor as of the date of this Agreement; and
(j) It will negotiate in good faith in accordance with Article 5, such
further licence agreement(s) for the use of the Licenced Patents in respect to
Additional Products designed and developed by the Licensor and/or Licensee
(which the Licensor has the right to grant licences in respect to) for use in
other industries, not falling within the definition of Licenced Products
hereunder.
6.02 No Other Representations. Warranties and Covenants. No
representations, warranty or covenant is given or made by the Licensor to the
Licensee other than those expressly set out in Section 6.01 above.
6.03 Licensee's Representations. Warranties and Covenants of Licensee. The
Licensee hereby represents, warrants and covenants to the Licensor as follows:
(a) The Licensee has full right, power and authority to enter into this
Agreement and there is no impediment which would inhibit their ability to
perform the terms and conditions imposed upon it by this Agreement;
(b) This Agreement has been duly authorized by all necessary action and
constitutes a valid and binding obligation of the Licensee enforceable in
accordance with its terms;
(c) The Licensee will obtain all necessary permits, consents,
authorizations, approval or licences to export the Licenced Products outside the
Territory provided same can be obtained;
(d) The Licensee agrees to insure, maintain, repair, redesign, improve,
refine
or modify the existing machinery, stamping, tools and apparatus owned by the
Licensor and used to manufacture and assemble the Licenced Product prototypes,
and further covenants to design and develop production tooling (including
tooling for the die cast or plastic target web and cups), stamping (including
stamping for the steel cladding target segments) or machinery (including
automated machinery for the cup-filling process) all at the Licensee's expense
necessary to fulfill its obligations hereunder;
(e) The Licensee shall upon execution of this Agreement complete any
outstanding redesign of the software and hardware as contemplated by the parties
and discussed in the negotiations leading up to this Agreement. Upon completion
of the software and hardware design, the Licensee shall provide to the Licensor
one fully documented copy of all such Technical Information including, without
limitation, the source codes, hardware layout and schematics; and
(f) It will negotiate in good faith such further licence agreement(s) for
the use of the Licensed Patents in respect to Additional Products designed and
developed by the Licensor and/or Licensee (which the Licensor has the right to
grant licences in respect to) for use in other industries not falling within the
definition of Licensed Products hereunder.
ARTICLE SEVEN
TECHNOLOGY
7 .01 Technical Information/Assistance from Licensor. The Licensor shall
following execution of this Agreement, upon the request of the Licensee, and
upon reasonable notice, promptly and diligently:
(a) make available the Technical Information, as well as specifications and
skills, owned or controlled by the Licensor relating to Licenced Products
including reports and other material generated by the Licensor or under the
supervision or control of the Licensor; and
(b) provide at the Licensor's standard hourly charges applicable from time
to time (currently $150.00 per hour), plus charges on account of all reasonable
out of pocket expenses and disbursements including travel and lodging costs,
such advice as the Licensee may reasonably require, and the Licensor may have
available, to assist in matters relating to the production, processing, and
manufacturing of the Licenced Product.
ARTICLE EIGHT
CONFIDENTIALITY
8.01 The Licensee acknowledges that all information and documentation
including the Technical Information made available or disclosed by the Licensor
as a result of or related to this Agreement up to the time of the Licensee's
first sale of the Licenced Products, and thereafter all information and
documentation expressly marked as "Confidential Information" shall be received
and treated on a confidential and restricted basis (the "Confidential
Information");
8.02 The Licensee shall keep all Confidential Information in the strictest
confidence and it will not disclose any information to third persons other than:
(a) where disclosure is required by law and there is no reasonable
alternative to such disclosure;
(b) in confidence to professional advisors in connection with the
performance of their professional services;
(c) where disclosure is necessary for other legitimate business reasons and
is made with the prior written consent of the Licensor, or the party to whom the
Confidential Information is disclosed first executes the Licensor's Standard
Third party Confidentiality and Ownership Agreement attached hereto as Schedule
"C";
(d) to a court determining the rights of the Licensee and the Licensor
under this Agreement provided that the parties shall co-operate in applying for
a protective order;
(e) pursuant to the disclosure requirements of any other contract between
the parties; or
(f) to a government department or agency in connection with
non-discretionary filings or claims made by the Licensee,
PROVIDED that as a precondition to dealing with any third party the
Licensee shall cause such party to first execute the Licensor's standard Third
Party Confidentiality & Ownership Agreement attached hereto as Schedule "B" and
provide a copy to the Licensor forthwith.
8.03 Notwithstanding section 8.02, the Licensee shall not be obliged to
keep in confidence and shall not incur any liability for disclosure of
Confidential Information which:
(a) has been published or is otherwise within the public knowledge or is
generally known to the public at the time of its disclosure to the Licensee and
became so without any breach of this Agreement;
(b) comes into the public domain without any breach of this Agreement; or
(c) becomes known or available to the Licensee, other than as a result of
the activities of the Licensor, or any Affiliate of the Licensor, and without
any breach of this Agreement by the Licensee.
ARTICLE NINE
MARKETING
9.01 Demand for Products in the Territory. The Licensee undertakes to use
commercially reasonable efforts to create a continuous demand for the Licenced
Products in the Territory by including, but not limited to, advertising
regularly the Licenced Products in established trade journals and reasonably
attending and displaying the Licenced Products annually at exhibitions and trade
shows. The Licensee further undertakes to use its reasonable efforts to market
and distribute the Licenced Product by means that best maximizes the Licensee's
sales price of the Unit to purchasers in the Territory.
9.02 Marketing Plan. At the commencement of each year during the Tenn of
this Agreement, the Licensee shall provide to the Licensor a copy of its annual
marketing plan developed to promote the sale and distribution of the Licenced
Products.
ARTICLE TEN
MAINTAINING EXCLUSIVITY
10.01(i) Annual Minimum Performance in the Territory. In order to maintain
the exclusive rights in the Territory, the Licensee shall sell in the Territory
the following annual minimum number of Units during the Tenn of this Agreement:
Commercial Units Non-Commercial Units
2000 -no minimum Units no minimum Units
2001 -1,000 Units 1,000 Units
2002 -2,500 Units 2,500 Units
2003 -5,000 Units 7,500 Units
2004 and thereafter
in each year -7,500 Units 10,000 Units
Provided that if the Licensee does not meet the minimum performance levels
required for any year, it may preserve the exclusive nature of this Licence by
paying on or before December 31st, in each year, the percentage royalty
otherwise payable on the Units not sold. For the purpose of this required
minimum exclusivity amount only, the percentage royalty payable by the Licensee
shall be calculated at the applicable percentage rate set out in Section 3.01(b)
and Gross Sales shall be computed on the basis that each Unit not sold, had a
deemed net invoice price (including allowable deductions) equal to $2,500.00
(U.S.) for the Commercial Unit and $500.00 (U.S.) for the Non-Commercial Unit.
10.02 Consequences of Default in 2002 and thereafter. If the Licensee fails
to meet the minimum performance levels in the Territory in the year 2002 and
after, the Licensor may in its sole discretion after giving thirty (30) days
written notice to the Licensee either:
(a) permit the Licensee to preserve the exclusive nature of this Licence by
paying to the Licensor in each quarterly payment period required from time to
time, the amount of royalties that would otherwise be due and owing to the
Licensor had the minimum performance levels been met. For the purposes of this
required minimum exclusivity amount, the percentage royalty payable by the
Licensee shall be calculated at the applicable percentage rate and Gross Sales
shall be computed on the basis that each Unit not sold had a deemed net invoice
price (including allowable deductions) equal to $2,000.00 (U.S) for the
Commercial Unit and $500.00 (U.S.) for the Non-Commercial Unit; or
(b) revoke the exclusive nature of this Licence and deem the License to be
non- exclusive in the Territory or certain countries in the World, as the case
may be; or
(c) terminate this Agreement in accordance with Section 15.01.
ARTICLE ELEVEN
PROTECTION OF LICENCED TECHNOLOGY
11.01 Infringement. During the Tenn of this Agreement and any renewal or
extensions thereof:
(a) the Licensee shall promptly notify the Licensor of any and all
infringements, illegal use or misuse ("Infringements") of the Licenced Patents,
Copyright Works, Trade Xxxx or Technical Information as same relates to the
Licenced Products which come to its attention.
(b) the Licensee shall promptly deal with such Infringements in the
Territory, in which case the Licensee shall be entitled to commence action to
protect its interest in the Licenced Patents, Copyright Works, Trade Xxxx or
Technical Information, obtain judgment, and to settle or compromise any such
actions so long as same does not affect the validity of the Licenced Patents and
the Licensee's obligations under this Agreement. In the event that the
Infringement includes any unauthorized production and sale of Licenced Products
or Parts by a third party , any compensation resulting therefrom shall be
applied as follows: firstly, the legal costs incurred by the Licensee in the
action; and secondly, the residue shall be apportioned between the Licensor and
Licensee on a pro rata basis having regard to the profits and royalties that
would otherwise have been made or payable to the parties, as the case may be, on
the distribution and sale of the Licenced Products and Parts as if same had been
distributed and sold by the Licensee and not the infringing party .
(c) The Licensor agrees to provide the Licensee with such information and
assistance as is necessary to permit the Licensee to deal with Infringements
pursuant to paragraph (b) above.
(d) Notwithstanding Section 11.01(b) hereof, in the event the Licensor and
the Licensee agree to jointly deal with such Infringement, any compensation
resulting from the joint action shall first be applied in payment of the legal
costs incurred by the parties and the balance shall be shared by the parties in
accordance with the apportionment referred to in Section 11.01(b) above.
(e) The Licensor agrees to indemnify and same harmless the Licensee for any
and all costs incurred by the Licensee should the Licensor be in breach of its
covenant set out in section 6.01(c) of this Agreement.
11.02 Validity. The Licensee acknowledges the validity of the Licenced
Patents, the Copyright Works, and Trade Xxxx and agrees to take no action,
directly or indirectly, contesting or in any way impairing the rights of the
Licensor in them or their validity .
11.03 Grey Market Sales. Should the Licensee lose the exclusive rights in
certain countries of the World as provided for in this Agreement which exclusive
rights are granted to a third party , the Licensee shall not sell Licenced
Products or Parts outside the Territory or to any person within the Territory
who the Licensee has reason to believe is reselling or intends to resell the
Licenced Products or Parts outside the Territory. The "reason to believe" in
this section may originate with the Licensor. The Licensor will include a
provision similar to this one in its Agreements with other licensees, in order
to protect the Territory of the Licensee, to the extent permitted at law. The
parties acknowledge that this provision may be subject to any prevailing laws of
certain jurisdictions which are designed to minimize restraint of trade between
or among jurisdictions.
11.04 Marking. Each Product sold by the Licensee shall be marked with the
Trade Xxxx and reference to the Licenced Patents and Copyright Works in a manner
reasonably specified by the Licensor. The Licensee shall at the request of the
Licensor reasonably co-operate in an application to register the Licensee as a
user of the Trade Xxxx.
11.05 Quality Control. Each Licenced Product, and every component, sold by
the Licensee shall be of good commercial quality .On reasonable notice the
Licensor may inspect the manufacturing premises and the Licenced Products made
by the Licensee in order to ensure that the Licenced Products and components
meet this standard.
ARTICLE TWELVE
LICENCE IMPROVEMENTS
12.01 Patent Improvements By Licensor. In case the Licensor makes or
obtains any Improvements during the Term of this Agreement, the Licensor shall
disclose the same to the Licensee and the Licensee may use these Improvements
under the same royalty arrangements and terms as contained herein. If the
Improvement is patentable, the Licensor may prepare, file and process any
application for a patent as it sees fit. Without further consideration,
effective as of the date such patent is issued, the Licensor hereby grants to
the Licensee a licence to any patent issued on such Improvement under the same
arrangements and terms as contained herein.
12.02 Patent Improvements By Licensee or Affiliate. In consideration of the
Licensor granting this licence to the Licensee, the Licensee agrees that if the
Licensee or any of its Affiliates makes or obtains any non-patented Improvement
related to the Licenced Product during the term of this Agreement, the Licensee
shall disclose and shall cause its Affiliates to disclose same to the Licensor.
The Licensor and its other licensees may use such Improvement without payment to
the Licensee. If the Improvement is patentable, the Licensor may prepare, file
and process any application for a patent in its name and the Licensee shall
execute such further documents as are necessary for such purposes. Without
further consideration, effective as
of the date such patent issued, the Licensee hereby grants to the Licensor the
right to apply for patents on such Improvements outside the Territory, and to
use or licence such patents outside the Territory. In order to facilitate such
applications, the Licensee agrees to make available to the Licensor applicable
drawings or renderings of such patented Improvements.
12.03 Consultation with Licensor. All Improvements, including without
limitation, improvements, modifications, or changes to the Copyright, Technical
Information or Trade Marks shall first be discussed and developed in
consultation with the Licensor. Furthermore, copies of the software program
including source codes and electronic hardware designs, layouts and schematics
shall be immediately provided to the Licensor on an ongoing basis as such
improvements are made.
ARTICLE THIRTEEN
SAMPLE AND PARTS
13.01 Purchase or Units From Licensee. In each year during the Term of this
Agreement, upon the request of the Licensor, the Licensee shall provide to the
Licensor at no cost to the Licensor (except freight and insurance), two (2)
representative samples of the Licenced Product being manufactured by the
Licensee. The Licensor, shall be entitled in each year to purchase ten (10)
additional Units (not intended for resale) at a price equal to the Licensee's
cost to manufacture, plus fifteen percent (15%) exclusive of freight and
insurance.
ARTICLE FOURTEEN
NON-COMPETITION
14.01 Non-Solicitation and Non-Competition. The Licensee, any Affiliate and
each of the Licensee's present or future directors, officers or shareholders
hereby agree during the currency of this Agreement and for a period of
(i) ten years,
(ii) five years, or
(iii) three years, or (iv) two years
following the expiration of this Agreement it or they, as the case may be, shall
not either individually or in partnership or in conjunction with any person or
persons, firm, association, syndicate, company or corporation, as principal,
agent, director, officer, employee, investor or in any other manner whatsoever,
directly or indirectly, carry on, be engaged in, be interested in, or be
concerned with, or employed by any such person or persons, firm, association,
syndicate, company or corporation, carrying on, engaged in, interested in or
concerned with, a business which is similar to the Business of the Licensor;
(a) throughout the World,
(b) within the United States of America, Mexico and Canada, the countries
comprising the E.E.C., Asia, Australia and New Zealand,
(c) within the United States of America, Mexico, Canada, and the countries
comprising the E.E.C.,
(d) within the United States of America, Mexico and Canada.
Provided that each combination of time and area referred to above shall be
separable so that if any provision as to time in Section 14.01 (i), (ii), (iii)
or (iv) or any provision as to geographic area in Section 14.01 (a), (b),(c) or
(d) is determined to be void or unenforceable the next lesser period as to time
or next smaller geographic area as the case may be, shall apply and so on and
the invalidity of any greater period as to time or larger geographic area shall
not be deemed to affect or impair the validity of any other provision or
covenant which are hereby declared to be separate and distinct. The term
"Business" of the Licensor shall for the purposes of this Section mean the
business of manufacturing, selling, leasing or otherwise distributing electronic
scoring dart board games.
ARTICLE FIFTEEN
TERMINATION
15.01 Termination by Licensor. The Licensor, may at its option (without
prejudice to any other right that it may have hereunder), terminate this
Agreement by written notice in anyone of the following events:
(a) If the Licensee makes any assignment of assets or business for the
benefit of creditors, or if a trustee or receiver is appointed to administer or
conduct each of their businesses or affairs, or if either is adjudged in any
legal proceeding to be either a voluntary or involuntary bankrupt, or if either
shall enter into liquidation whether compulsory or voluntary (other than for the
purpose of reconstruction or amalgamation) which in any above instances is not
reversed within ninety (90) days;
(b) If the Licensee breaches Articles Three, Eight, or Sections ll.02 or
14.01 of this Agreement which is not cured within thirty (30) days;
(c) If the Licensee breaches any other material term of this Agreement and
fails to correct its breach within thirty (30) days of the date on which notice
of the breach is given to it by the Licensor;
(d) If the Licensee fails to maintain the annual minimum performance levels
set out in Section 10.01;
(e) If the Licensee claims the benefit of any curative period referred to
herein more than once in any year during the Term of this Agreement;
(f) If the Licensee fails to have any of its subcontractors, as a
precondition of dealing with them, first execute the Licensor's Third party
Confidentiality & Ownership Agreement and to provide a copy of same to the
Licensor forthwith, or if any such Third Party breaches a term of that
agreement, and the Licensee within ten (10) days of notice of such breach fails
to take steps to seek and obtain injunctive and other equitable relief in a
court of competent jurisdiction at its expense, and such relief is an available
remedy; or
(g) If there is a purported Assignment of this Agreement in whole or in
part by the Licensee or a Change of Control in the Licensee which is not in
accordance with the provisions of this Agreement.
15.02 Termination by Licensee. The Licensee may, at its option (without
prejudice to any other right it may have hereunder) terminate this Agreement by
written notice if a final injunction is granted by a court of competent
jurisdiction prohibiting the Licensee from using the Licenced Patents in such
Territory;
15.03 Force Majeure. If the Licensee is temporarily unable to perform its
covenants and obligations hereunder because of Force Majeure, then the time
limited for carrying out the same shall be extended by the effective period of
Force Majeure applicable thereto;
15.04 Results of Termination or Expiry.
(a) The right of termination under this Agreement by either party shall be
in addition and without prejudice to any other rights to which such party may be
entitled at law or under this Agreement by way of damages, accounting or
otherwise and any such termination shall not affect such party's rights to any
other remedies to which it may be entitled by reason of any breach hereunder up
to the date of such termination, provided further that no termination or
expiration of this Agreement shall serve to release any party from any
condition, duty or obligation accrued or incurred at the time of, prior to, or
in connection with the termination or expiration;
(b) On termination or expiry of this Agreement, the Licence granted
hereunder shall become void and the Licensee shall immediately cease and desist
in utilizing the Licenced Patents, Copyright Works, Technical Information and
Trademark, and shall cease all manufacture and sale of Licenced Products and
Parts. The Licensee shall thereupon deliver to the Licensor all Copyright and
Technical Information provided for hereunder in tangible forms; transfer and
convey to the Licensor or to another party at the direction of the Licensor for
$1.00 consideration any and all right, title and interest of the Licensee
relating to any Improvement, Copyright and Technical Information owned or
controlled by the Licensee, and any Tooling, Stamping or Machinery owned or
controlled by the Licensee, wherever situate,
used in the manufacture of the Licenced Products; and execute any and all
further documents or further assurances to evidence the Licensor's ownership of
any Improvements in accordance with this Agreement.
(c) Notwithstanding the other provisions of this Agreement, the Licensee
shall have six (6) months after termination in which to dispose of all Licenced
Products and Parts therefore and for this purpose, a special non-exclusive
licence shall continue in accordance with the terms hereof for such period of
six (6) months.
(d) The Licensor's right to receive all payments due to the Licensor under
the terms of this Agreement accrued to the date of such termination shall
continue unaffected by such termination.
ARTICLE SIXTEEN
INSURANCE
16.01 Disclaimer of Liability. The parties shall each obtain and maintain
in good standing policies of insurance sufficiently covering the Licenced
Product or public liability, personal injury or death, that may arise against
such party having regard to the insurance risks attributable to each parties'
business and obligations hereunder. The Licensee shall promptly provide to the
Licensor a copy of such policies of insurance, noting the Licensor's interest
therein. Subject to Section 6.01 nothing contained in this Agreement shall be
construed as a guarantee, warranty or representation by the Licensor with
respect to the use of any rights granted under this Agreement. The Licensee
shall defend, indemnify and hold harmless the Licensor from and against any and
all claims, demands, liabilities, costs and expenses (including reasonable legal
fees) based on or resulting from any personal injury or death to any person
arising out of or in connection with this Agreement or the Licenced Products,
including from any product defects in the Licenced Products manufactured
hereunder by the Licensee and its sublicensees. The Licensor and Licensee shall
promptly notify the other of any such claim, demand, liability or expense if the
same comes to the other party's attention.
ARTICLE SEVENTEEN
GENERAL
17.01 Governing Law. All matters affecting the interpretation, form,
validity, enforcement and performance of this Agreement shall be decided under
the laws of the Licensor's Canadian corporate solicitors, being the Province of
Ontario and the parties hereby irrevocably attorn to the jurisdiction of the
Province of Ontario.
17 .02 Arbitration. In the event any dispute hereunder by the parties in
regard to their respective rights and obligations or in respect to any
interpretation of the meaning of any part of this Agreement is not resolved
amicably between themselves within sixty (60) days the dispute
shall be settled by arbitration, with arbitrators to be selected and proceedings
conducted in accordance with the rules of Arbitration Act of Ontario, S.O
1991, c.17, to which each party is hereby bound. The arbitration shall be held
in the Regional Municipality of Niagara, Ontario. Judgment upon the award
rendered may be entered in any court having jurisdiction, or application may be
made to such court for judicial acceptance of the aware or order of enforcement.
17 .03 Notice. All notices authorized or required to be given pursuant to
this Agreement shall be in writing and either delivered by hand, sent by
telecommunications or mailed by prepaid registered mail as follows:
A. In the case of the Licensor:
High Flyte International Ltd. In Trust,
c/o Xxxxxxx, Xxxxxxx & Morningstar,
Canadian Corporate Solicitors,
000 -00 Xxxx Xxxxxx,
Xx. Xxxxxxxxxx, Xxxxxxx,
Xxxxxx X0X 0X0
Attention: The President
B. In the case of the Licensee:
Optima Global Corporation
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx, X.X.X.
00000
Attention: The President
Any notice or other communication shall be effective, if delivered, on the
day on which it was delivered, if sent by telecommunication, on the first
business day following the day on which it was dispatched, and if mailed, on the
tenth business day following the date on which it was mailed.
No party shall mail any notice or other communication when a threatened or
actual work stoppage exists at the post office from, or to, which the notice or
other communication is being sent. A party may change its address for receipt of
notices by notice to the other party.
17 .04 Assignment and Change of Control. This Agreement may not be
assigned in whole or in part by the Licensee nor shall there be a Change of
Control in the Licensee without the prior written consent of the Licensor. The
licence granted in this Agreement is personal to the Licensee and may not be
sublicenced by the Licensee without the prior written consent of the Licensor,
provided that this provision shall not be construed as prohibiting the Licensee
from entering into subcontracting agreements for the supply of services or
goods. The Licensor may
assign this Agreement in whole or in part so long as the assignee agrees to be
bound by the terms of this Agreement.
17.05 Waiver. No waiver by a party of any breach of any of the provisions
of this Agreement by the other party shall take effect or be binding upon the
party unless agreed in writing. A waiver shall not limit or affect the rights of
the party with respect to any other breach. All rights and remedies are
cumulative and may be exercised at any time and from time to time independently
or in combination.
17 .06 Funds. This is an international licensing transaction in which the
specification of and payment in lawful money of the United States of America
("Dollars") is of the essence and the Dollar shall be the currency of account
and payment in all events. The payment obligations hereunder shall not be
discharged by an amount paid in another currency, whether pursuant to a judgment
or otherwise, to the extent that the amount so paid on prompt conversion to
Dollars does not yield the amount of Dollars due hereunder. In the event that
any payment whether pursuant to a judgment or otherwise, upon such conversion
does not result in payment of such amount of Dollars, the Licensee shall
immediately upon demand by the Licensor make up any such deficiency.
17.07 No Partnership. Nothing in this Agreement is intended to create or
shall be construed as creating a partnership, agency, joint venture, association
or trust between the parties.
17 .08 Severability. The invalidity of any provision of this Agreement
shall not affect the enforceability of the other provisions of this Agreement,
and the invalidity of any provision of this Agreement shall merely render the
invalid provision ineffective.
17 .09 Counterparts. This Agreement may be executed in counterparts and
when each party has signed and delivered at least one such counterpart, each
counterpart shall be deemed as original and when taken with other signed
counterparts shall constitute one agreement which shall be binding upon and
effective as to all parties.
17.10 Facsimile. This Agreement may be executed by facsimile and such
facsimile if executed in counterpart shall form one binding agreement of the
parties.
17.11 Successors and Assigns. This Agreement will be binding upon and
enure to the benefit of the parties and their respective successors, assigns,
heirs and executors.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first mentioned above.
)
) HIGH FLYTE INTERNATIONAL LTD.
) "In Trust" by its Canadian Corporate Solicitors,
) XXXXXXX, XXXXXXX & MORNINGSTAR
) duly authorized on the behalf
)
) per: /s/ Xxxx X. Xxxxxxx
) Xxxx X. Xxxxxxx
) I have authority to bind the Corporation
)
) OPTIMA GLOBAL CORPORATION
)
)
) per:
) (duly authorized officer)
) I have authority to bind the Corporation
Schedule "A"
Attached to and forming part of the
Agreement between HIGH FLYTE INTERNATIONAL LTD. IN TRUST and
OPTIMA GLOBAL CORPORATION dated September 1, 2000.
JURISDICTIONS OF PATENT (Issued or Pending)
-------------------------------------------
1. United States of America
2. Canada
3. Mexico
4. United Kingdom
5. France
6. Germany
7. Spain
8. Austria
9. Italy
10. China
11. Japan
12. Australia
13. New Zealand
Schedule "B"
Attached to and forming part of the
Agreement between HIGH FLYTE INTERNATIONAL LTD. in trust and
OPTIMA GLOBAL CORPORATION, dated September 1, 2000.
THIRD PARTY CONFIDENTIALITY
& OWNERSHIP AGREEMENT
THIS AGREEMENT entered into this day of , 2000, by and between and among
OPTIMA GLOBAL CORPORATION ("OGC"), and HIGH FLYTE INTERNATIONAL LTD. in trust
("High Flyte) and (the "Undersigned")
WHEREAS OGC is a party to a certain Licence Agreement (the "Licence
Agreement") dated September 1, 2000 with High Flyte;
AND WHEREAS section 8.02 of the Licence Agreement requires that the
Undersigned first execute this Third party Confidentiality & Ownership Agreement
as a precondition of OGC dealing with the Undersigned;
AND WHEREAS the Undersigned wishes to deal with OGC;
NOW THEREFORE in consideration of OGC agreeing to deal with the Undersigned
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. The Undersigned agrees that all information and documentation made
available or disclosed to the Undersigned by OGC or High Flyte (the
"Confidential Information") shall be received and treated by the Undersigned on
a confidential and restricted basis, and shall not be disclosed to any party,
firm or corporation, or used by the Undersigned, directly or indirectly, except
as expressly approved in writing by High Flyte.
2. The Undersigned acknowledges the validity of the Licensed Patents, the
Copyright Works and Trademark being licensed to OGC under the Licence Agreement,
and agrees to take no action, directly or indirectly, contesting or in any way
impairing the rights of OGC or High Flyte in them or their validity.
3. The Undersigned, and each of its present or future directors, officers,
or shareholders or employees agree during the currency of the Licence Agreement
(whether or not OGC continues to deal with the Undersigned), and for a period
of:
(i) ten years,
(ii) five years, or
(iii) three years, or (iv) two years
following the expiration of the Licence Agreement it or they, as the case may
be, shall not either individually or in partnership or in conjunction with any
person or persons, firm, association, syndicate, company or corporation, as
principal, agent, director, officer, employee, investor or in any other manner
whatsoever, directly or indirectly, carry on, be engaged in, be interested in,
or be concerned with, or employed by any such person or persons, firm,
association, syndicate, company or corporation, carrying on, engaged in,
interested in or concerned with, a business which is similar to the Business of
OGC and/or High Flyte;
(a) throughout the World,
(b) within the Territory, the countries comprising the E.E.C., Asia, Australia
and New Zealand,
(c) within the Territory and the countries comprising the E.E.C., (d) within the
Territory .
Provided that each combination of time and area referred to above shall be
separable so that if any provision as to time in Section 3 (i), (ii), (iii) or
(iv) or any provision as to geographic area in Section 3 (a), (b), (c) or (d) is
determined to be void or unenforceable the next lesser period as to time or next
smaller geographic area as the case may be, shall apply and so on and the
invalidity of any greater period as to time or larger geographic area shall not
be deemed to affect or impair the validity of any other provision or covenant
which are hereby declared to be separate and distinct. The term "Business of OGC
and/or High Flyte" shall for the purposes of this Section mean the business of
manufacturing, selling, leasing or otherwise distributing electronic scoring
dart board games.
4. The Undersigned acknowledges that in the event that there is a breach of
any provisions of this Agreement by the Undersigned, money damages alone would
not be an adequate and complete remedy to High Flyte or OGC, and either or all
of them shall therefore be entitled to seek and obtain injunctive and other
equitable relief in a court of competent jurisdiction, including money damages
and recovery of High Flyte and OGC's legal costs on a solicitor and client
basis.
5. The Undersigned will use all reasonable means to safeguard such
information and will not make any copies or reproductions of such Confidential
Information, all of which will be returned immediately to High Flyte or OGC upon
completion of their business dealings with OGC or immediately upon OGC's or High
Flyte's request.
6. The invalidity of any provision of this Agreement shall not affect the
enforceability of the other provisions of this Agreement, and the invalidity of
any provision of this Agreement shall merely render the invalid provision
ineffective.
7. Nothing herein shall entitle the Undersigned, or its agents, officers,
directors or employees, to any right to the use of the Confidential Information,
all rights and interests shall remain exclusively with High Flyte.
8. This Agreement shall be governed and construed in accordance with the
laws of the Province of Ontario, Canada.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date
first mentioned above.
)
)
) OPTIMA GLOBAL CORPORATION
)
)
)
) per:
) (authorized signing officer on behalf of
) OGC & High Flyte)
) I have authority to bind both of the
) Corporations
)
)
)
) "The Undersigned"
)
)
)
HIGH FLYTE INTERNATIONAL LTD.
In Trust
the Licensor
and
OPTIMA GLOBAL CORPORATION
the Licensee
LICENCE AGREEMENT
XXXXXXX, XXXXXXX
& MORNINGSTAR,
Barristers & Solicitors,
00 Xxxx Xxxxxx, Xxxxx 000,
Xx. Xxxxxxxxxx, Xxxxxxx,
Xxxxxx, X0X 0X0
Canadian Corporate Solicitors
for HIGH FLYTE INTERNATIONAL LTD.
IN TRUST
Attention: Xxxx X. Xxxxxxx
