Strategic Partnership Agreement Dealing with Exclusive License

Strategic Partnership Agreement Dealing with an Exclusive License Agreement

Agreement made on the , between , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Licensor, and , a corporation organized and existing under the laws of the state of , with its principal office located at , referred to herein as Licensee.

Whereas, Licensor has developed and currently manufactures and markets , hereinafter referred to as the Device; and

Whereas, Licensor and Licensee desire Licensee to manufacture, sell, advertise and promote for sale the Device on the terms and conditions of this Agreement;

Now, therefore, for and in consideration of the mutual covenants contained in this agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Exclusive License.

A. Licensor grants to Licensee the exclusive license to manufacture, sell and distribute the Device within , hereinafter called the Territory, for a period of . The term exclusive license is intended by the parties to preclude Licensor, as well as any third party, from manufacturing and marketing the Device within the Territory for the term of this Agreement as long as Licensee in good faith pursues its rights and performs its duties under this Agreement.

B. No rights or license, either express or implied, are granted by Licensor to Licensee by this Agreement except as specifically stated in this Agreement.

C. Notwithstanding anything contained in this Agreement to the contrary, this Agreement shall not be construed to alter the terms and conditions of any purchase order or orders between Licensor and Licensee executed prior to the date of this Agreement.

2. Licensee's Obligations.

Licensee agrees to:

A. Commence and continue the manufacture of Devices in the Territory in accordance with the terms of Section 4 below;

B. Use its best efforts, in good faith, to advertise, promote, distribute and sell the Devices at a price and on terms to be determined solely in Licensee’s discretion;

C. Refrain from using the name "Licensor" or any registered trade name or trademark of Licensor in connection with its manufacture, distribution or sale of the Devices within the Territory;

D. Carry that stock of the Devices as may be necessary to meet the normal demand for the Devices and to serve the market adequately and properly;

E. Keep true and correct books of account in which Licensee shall enter the number of sales and distribution of the Devices and the serial numbers of the Devices, provide Licensor with these accounts on a quarterly basis, as provided in Section 3 below, and permit Licensor or its representative, on written request, to examine and inspect the books of account provided for in this Agreement; and

F. Refrain from the manufacture, distribution or sale of any products performing substantially the same functions as the Devices except as may be purchased from Licensor or manufactured by Licensee pursuant to this Agreement.

3. Payments.

A. Licensee will pay Licensor an amount equal to $ per Device sold.

B. All of the Devices included by Licensee in any package sale to customers shall be deemed Devices sold for which payment has been received and for which amounts shall be due and payable as provided in Section 3-A above, whether or not a separate charge is made for the Device in the package by Licensee.

C. For the purpose of computing the payments referred to in Section 3-A of this Agreement, the year shall be divided into quarters, beginning January 1, April 1, July 1 and October 1 of each year. Within 30 days after the end of each quarter, reports shall be made by Licensee to Licensor setting forth the number of Devices sold under this Agreement during the preceding quarter, and the serial numbers of the Devices. Licensee's remittance for the full amount of payments due for that quarter shall accompany the reports. Licensee agrees to keep complete and correct books and records of the number of Devices sold and the serial numbers of the Devices sold. Licensor or its representative shall have the right to examine these books and records to the extent and insofar as it deems necessary to verify the accuracy of the reports.

4. Manufacture of the Devices.

A. Licensee shall effect the manufacture of reasonable supplies of the Devices. All of the Devices manufactured by Licensee shall be of a level of quality, and manufactured in accordance with specifications, acceptable to Licensor, and shall be manufactured in accordance with drawings, designs, and specifications furnished by Licensor.

B. Licensee shall comply with all applicable laws and regulations relating to the Devices and to this Agreement.

5. Inventions and Improvements. Licensee agrees to disclose to Licensor any invention, development or improvement relating to the Devices which Licensee may make, and to permit Licensor to utilize any such invention, development or improvement. Licensee grants to Licensor the option to obtain an exclusive license under any patent application or patent relating to the invention, development or improvement which Licensee may file or secure in any country where Licensor, or any firm or person operating under rights granted by Licensor, is manufacturing or selling the Devices.

6. Term of the Agreement. The term of this Agreement shall commence as of the day and year first above written and continue for a term of years, unless sooner terminated as provided in Section 7 of this Agreement.

7. Termination.

Either party may terminate this Agreement at any time by giving notice in writing to the other party if any one or more of the following events occur:

A. The other party is declared bankrupt or makes an assignment for the benefit of its creditors, or goes into liquidation or receivership, in which case it shall advise the other party immediately; provided, however, that Licensee shall not have the right to terminate this Agreement by virtue of Licensor's entry into proceedings under Chapter 11 of the Bankruptcy Act or receivership or reorganization, unless, in any such case, the duties on Licensee, or its ability to exercise its rights under this Agreement, shall be significantly more onerous as a result of those proceedings.

B. Breach of this Agreement by the other party if the breach is not cured within 30 days of notice of the breach.

C. Any substantial change in the ownership or management of the other party.

8. Rights and Duties Upon Termination. Upon termination of this Agreement, Licensee agrees to discontinue manufacturing and marketing the Devices, to return to Licensor any Technical Information in its possession as provided in Section 10 below, and within 30 days of termination provide to Licensor an accounting containing the detail provided in Section 3-C of this Agreement and accompanied by a final payment in accordance with the terms of Section 3 above.

9. Confidential Treatment of Information. Each party shall preserve in strict confidence any confidential information it obtains from the other party concerning the business of such other party, including, without limiting the generality of the foregoing, trade secrets, customer lists, Technical Information and information concerning the design or methods of manufacture of the Devices, and agrees to refrain from disclosing, during the term of this Agreement, or at any time thereafter, any of the information to any third person or persons, or business organizations; provided, however, that this obligation of confidence shall not apply to:

A. Information that is or becomes freely available to the public other than as a result of a breach of this Agreement by either party;

B. Information in the lawful possession of either party prior to the date of this Agreement, nor to any information acquired from a third party in lawful possession of the information;

C. Confidential disclosure of Technical Information by a party to this Agreement to its employees.

10. Technical Information. Any technical information that Licensor may provide Licensee regarding the Devices shall remain the sole property of Licensor and Licensee agrees not to use that technical information after the expiration of this exclusive license agreement and to return that technical information to Licensor on expiration of this exclusive license agreement. Technical Information shall include all data, services and other information which Licensor has a right to disclose to Licensee and which Licensor uses to manufacture the Devices.

11. Indemnity. Licensee warrants and represents that it will indemnify and hold Licensor harmless from all costs and damages whatsoever incurred from any claim or lawsuit, including, but not limited to claims or lawsuits for breach of contract or personal injury, arising out of, or in connection with, any of the Devices manufactured and distributed by Licensee.

12. Assignment.

A. Licensor shall have the right to assign its rights and its obligations pursuant to this Agreement and this Agreement shall survive any such assignment.

B. Licensee may not assign its rights and obligations pursuant to this Agreement without the written consent of Licensor. The consent of Licensor to any assignment shall apply only to the instance expressly provided for in the written consent, and shall not be deemed a consent to any subsequent assignment.

C. Subject to the foregoing, this Agreement inures to the benefit of, and is binding on, the successors and assigns of the parties to this Agreement.

13. Force Majeure. Neither party shall be liable for damages or have the right to terminate this Agreement due to any delay or default in performance under this Agreement by the other party if the delay or default is caused by conditions beyond the other party's control, including, but not limited to, acts of God, government restrictions, continuing domestic or international problems, such as wars or insurrections, strikes, fires, floods, earthquakes, work stoppages and embargoes; provided, however, that Licensor shall have the right to terminate this Agreement on 30 days' prior written notice if Licensee is unable to or does not manufacture the Devices in commercial quantities due to any of the above-mentioned causes and the inability to manufacture continues for a period of , or if Licensee is unable to remit to Licensor any of the payments to be made by Licensee because of any of the above-mentioned causes.

14. Miscellaneous Provisions.

A. Licensee is not and shall not be deemed to be the legal representative or agent of Licensor for any purpose whatsoever, and Licensee is not authorized by Licensor to transact business, incur obligations (express or implied), bill goods, or otherwise act in any manner, in the name or on behalf of Licensor, or to make any promise, warranty or representations with respect to the Devices or any other matter in the name or on behalf of Licensor.

B. This Agreement contains the entire Agreement between the parties hereto with respect to the Devices, and supersedes all previous negotiations, representations and other agreements heretofore made by the parties hereto with respect to the Devices. This Agreement may be amended only by a written instrument executed by Licensor and Licensee or their respective successors or assigns. There are no restrictions, promises, warranties, covenants or undertakings other than those expressly set forth herein. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.

15. Severability The invalidity of any portion of this Agreement will not and shall not be deemed to affect the validity of any other provision. If any provision of this Agreement is held to be invalid, the parties agree that the remaining provisions shall be deemed to be in full force and effect as if they had been executed by both parties subsequent to the expungement of the invalid provision.

16. No Waiver The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions, but the same shall continue and remain in full force and effect as if no such forbearance or waiver had occurred.

17. Governing Law
This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of .

18. Notices Unless provided herein to the contrary, any notice provided for or concerning this Agreement shall be in writing and shall be deemed sufficiently given when sent by certified or registered mail if sent to the respective address of each party as set forth at the beginning of this Agreement.

19. Mandatory Arbitration Any dispute under this Agreement shall be required to be resolved by binding arbitration of the parties hereto. If the parties cannot agree on an arbitrator, each party shall select one arbitrator and both arbitrators shall then select a third. The third arbitrator so selected shall arbitrate said dispute. The arbitration shall be governed by the rules of the American Arbitration Association then in force and effect.

20. Counterparts This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute but one and the same instrument.

21. Compliance with Laws In performing under this Agreement, all applicable governmental laws, regulations, orders, and other rules of duly-constituted authority will be followed and complied with in all respects by both parties.

22. In this Agreement, any reference to a party includes that party's heirs, executors, administrators, successors and assigns, singular includes plural and masculine includes feminine.

WITNESS our signatures as of the day and date first above stated.