LICENSE AGREEMENT
THIS AGREEMENT made and entered into as of the 6th day of
February, 2008, by and between Venitech, LLC, 700 Washington Street,
No. 703, Denver CO 80203, ("Licensor") and Community Alliance, Inc. a
Nevada corporation, with offices located at 4980 Silver Pine Drive,
Castle Rock, Colorado, 80108, ("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, and has 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.
WHEREAS, Licensor has licensed Fresh Ideas Media, Inc, 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 ("Licensed Business") in a given territory which
includes 45 states in the United States, and did exclude the states of
Colorado, Texas, Florida, Nebraska and Oklahoma in that License
Agreement, and Fresh Ideas has assigned that License Agreement over to
Community alliance, Inc.
WHEREAS, Licensor did retain all rights to the state of Colorado
for the registered trade marks of "Community Alliance" and for "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 that territory, and
WHEREAS, Licensor now desires to grant to Licensee (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.
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.
"Advertising 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 4, 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".
"Territory of Colorado" shall mean the entire state of Colorado
except for Jefferson County in the state of Colorado.
"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
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.
ARTICLE 3
LICENSE FEE
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,
Licensee agrees to pay to Licensor a License fee of Twenty Thousand
Dollars ($20,000.00). Ten Thousand Dollars ($10,000.00) to be paid on
or before 90 days of the signing of this Agreement another ten thousand
dollars ($10,000.00) will be paid on or before 190 days from the
signing of this agreement. In addition, Venitech, LLC shall receive
twenty percent (20%) of the net profit of sales generated by the
selling of advertising space on the school folders in the Territory.
All 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.
ARTICLE 4
TOTAL TERRITORY
The TOTAL TERRITORY granted to the Licensee by the Licensor by
this Agreement shall be the State of Colorado, with the exception of
Jefferson County in the State of Colorado.
ARTICLE 5
GRANTING OF SUB-LICENSE
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, 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 hereby understood and agreed that the minimum number of
schools that the Licensee shall have under contract in the first year
from the signing of this Agreement shall be 20.
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 February 6, 2010. Licensee shall have the right
to renew this Agreement for an additional three-year period provided:
A. Guaranteed Minimum sales of schools are under contract in any
given year as per Article 5 of this Agreement.
B. All fees which are due and payable by the Licensee to the
Licensor are paid as per the terms of this Agreement.
C. Licensee is not otherwise in default hereunder;
D. Licensee gives Licensor notice in writing of its intent to
renew no later than January 15, 2010.
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 mark 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 MARK(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 Mark", 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 mark, 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
Mark(s) so as to form a new mark, unless and until Licensor consents
thereto in writing. Licensee acknowledges the validity of the Licensed
Mark(s), the secondary meaning associated with the Licensed Mark(s),
and the rights of Licensor with respect to the Licensed Mark(s) in the
Territory in any form or embodiment thereof and the goodwill attached
or which shall become attached to the Licensed Mark(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 Mark(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 Mark(s) or any registrations thereof or which, directly or
indirectly, may reduce the value of the Licensed Mark(s) or detract
from its reputation.
Notwithstanding anything to the contrary contained herein, all
uses of the Licensed Mark(s), materials using or incorporating the
Licensed Mark(s) and items used in connection with the Licensed Mark(s)
are subject to Licensor's review and approval.
The "Licensed Mark(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
Mark(s)" with any other trademark or service mark (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 Mark 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.
Licensor shall have the right to terminate this Agreement upon
thirty (60) days written notice to Licensee in the event that Licensee
has not sold a minimum of four Sub-licenses within a 12 month period
from the signing of this Agreement and a minimum of eight Sub-licenses
for each 12 month period thereafter, during the life of this Agreement.
Upon the expiration or termination of this Agreement, Licensee
will promptly discontinue any and all use of the Trade Mark,
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 Mark".
B. In the event of termination in accordance with Article 14
above, Licensee shall pay to Licensor, the Sales Royalty or any other
fees then owed to Licensor pursuant to this Agreement or otherwise.
C. Notwithstanding any termination in accordance with Article 14
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 Mark, 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
700 Washington Street, No. 703,
Denver CO 80203
Telephone: 720-394-3522
Facsimile: 303-568-7805
If to Licensee:
Community Alliance Inc.
4980 Silver Pine Drive
Castle Rock. Colorado 80108
Telephone: 303-730-7939
Facsimile: 303-730-7947
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 Mark, or in any
confusingly similar mark, adverse to Licensors' interests in and to
such Mark, or any claim that Licensee's use of a Mark 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 Mark(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 Mark 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 Mark" 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 Mark" 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 mark, 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/ Ruth Daily
--------------
Ruth Daily - Managing Director
COMMUNITY ALLIANCE, INC.
By: /s/Phil E. Ray
--------------
Phil E. Ray, President