LICENSE AGREEMENT
This LICENSE AGREEMENT (the "Agreement") is made and entered into as of
the 28th day of November, 2005, by and between Community Alliance, Inc,
a Nevada corporation (the "LICENSOR"), and Rachelle Hagerty, 5413
Amherst Drive, Parma, Ohio 44129, (the "LICENSEE").
WITNESSETH:
WHEREAS, LICENSOR has all rights to the Know-How, Marketing Materials,
Publications and Designs and Trademarks (collectively, the "INTELLECTUAL
PROPERTY"), the ADVERTISING PRODUCT and the BUSINESS CONCEPT, all as
defined below; and
WHEREAS, LICENSEE desires to acquire the exclusive license to use the
INTELLECTUAL PROPERTY in the LICENSED TERRITORY, as defined below,
subject to the provisions and conditions set forth in this Agreement;
and
WHEREAS, LICENSOR is willing to grant to LICENSEE the exclusive license
to use the INTELLECTUAL PROPERTY in the LICENSED TERRITORY, subject to
the provisions and conditions set forth in this Agreement; and
WHEREAS, LICENSOR desires to retain the rights to the INTELLECTUAL
PROPERTY, the ADVERTISING PRODUCT and the BUSINESS CONCEPT for its own
purposes, except in the LICENSED TERRITORY.
NOW, THEREFORE, in consideration of the mutual promises, premises and
obligations of the respective parties set forth herein, it is hereby
contracted, covenanted and agreed as follows:
1. DEFINITIONS.
1.01 "INTELLECTUAL PROPERTY" shall mean all Know-How, Marketing
Materials, Publications and Designs, Trademarks and all other materials,
whether now existing or developed in the future, for use in the BUSINESS
CONCEPT and used by the LICENSEE in the LICENSED TERRITORY.
1.02 "BUSINESS CONCEPT" shall mean the overall use of all aspects of
the granted license, including but not limited to the Advertising
Product, Know-How, Marketing Materials, Publications and Designs and
Trademarks, and other aspects of, methodologies involved in and programs
for marketing the business of providing elementary schools free of
charge with custom school take-home folders produced by Community
Alliance that display advertising by community businesses in the
LICENSED TERRITORY.
1.03 "ADVERTISING PRODUCT" shall mean the custom school take-home
folder publications produced by Community Alliance that display
advertising by community businesses, which are provided to elementary
schools free of charge. LICENSOR may add other advertising products
from time to time.
1.04 "KNOW-HOW" shall mean the methods, skills, procedures, forms and
operations developed by LICENSOR, as related to the ADVERTISING PRODUCT
or products.
1.05 "TRADEMARKS" shall mean the name "Community Alliance" and the
associated logo, together with any trademarks that LICENSOR may add to
the Business Concept in the future.
1.06 "MARKETING MATERIALS" shall mean any and all of the documents
provided by LICENSOR to LICENSEE for the purpose of LICENSEE'S
contracting with schools for the provision of school take-home folders
produced by Community Alliance that display advertising by community
businesses and selling advertisements to community businesses.
1.07 "PUBLICATIONS AND DESIGNS" shall mean the custom school take-home
folders and related advertising graphic design services provided by
LICENSOR to LICENSEE in relation to the ADVERTISING PRODUCT.
1.08 "TERRITORY" shall mean the geographic area to which the LICENSEE
shall have the exclusive license to operate the BUSINESS CONCEPT and use
the INTELLECTUAL PROPERTY.
2. GRANT OF LICENSE.
2.01 LICENSOR hereby grants to LICENSEE the exclusive license to use
the INTELLECTUAL PROPERTY only within the LICENSED TERRITORY and nowhere
else and for no other purpose, subject to the provisions and conditions
set forth in this Agreement. LICENSOR may not grant a license or any
part of the BUSINESS CONCEPT or the use of the INTELLECTUAL PROPERTY to
any other person or entity within or without the LICENSED TERRITORY.
2.02 LICENSEE will not use the INTELLECTUAL PROPERTY outside the
LICENSED TERRITORY. LICENSEE will not use the INTELLECTUAL PROPERTY
except in connection with the marketing, selling, promoting, advertising
and/or distribution of the Advertising Product or products.
3. LICENSED TERRITORY.
3.01 The Territory in which the license granted to the LICENSEE
pursuant to this Agreement is effective is as follows:
In the State of Ohio, the counties of Mercer, Auglaize, Hardin, Marion,
Know, Coshocton, Tuscarawas, Harrison and Jefferson, and all counties
located in the State of Ohio north of these counties to the Northern
state line and including all counties above these counties to the
Eastern state line and to the Western state line. Any and all counties
south of these counties shall not be included in the Licensed Territory.
4. LAWFUL USE.
4.01 LICENSEE represents and warrants that advertising and promotional
materials and all other materials in connection with which the
INTELLECTUAL PROPERTY used by LICENSEE under this Agreement shall be
lawful. LICENSEE shall use diligent efforts to provide in advance to
LICENSOR copies or samples of the form of advertising, promotional
materials and other materials used in connection with the INTELLECTUAL
PROPERTY; said copies or samples to be sent to LICENSOR at its address
for notice as hereinafter specified.
5. LICENSE FEE.
5.01 For use of the INTELLECTUAL PROPERTY as described in this
Agreement, LICENSEE agrees to pay to LICENSOR a license fee of ten
thousand dollars ($10,000.00), on with an initial payment of Two
Thousand Dollars ($2,000.00) ( the "Initial Payment") to be paid with
the signing of this Agreement, a second payment in the amount of One
Thousand Dollars ($1,000.00) to be paid on or before June 1, 2006, and
the full balance of Six Thousand Dollars ($7,000.00) due on or before
June 1, 2007.
5.02 All payments to be paid to LICENSOR pursuant to this Agreement
shall be sent or delivered to LICENSOR at its address for notice as
hereinafter specified.
5.03 All payments pursuant to this Agreement shall be in United States
currency.
5.04 Any payment not mailed by certified mail by LICENSEE to LICENSOR
on or before the date on which the payment is to be paid shall be
delinquent and overdue, and, at the election of LICENSOR, in its sole
discretion, this Agreement may be considered void, unless LICENSOR
extends the due date for the required payment.
6. PUBLICATION FEE AND PUBLICATION OF ADVERTISING PRODUCT.
6.01 In order to maintain the best quality control for the ADVERTISING
PRODUCT or products, LICENSEE shall be required to use the graphic
design and printing services of LICENSOR for the publication of the
ADVERTISING PRODUCT or products.
6.02 LICENSEE shall be required to submit the graphic files in
connection with any advertisement to LICENSOR in a timely manner, but,
in any event, not later than 45 days after the date of sale of the
advertisement and not later than 30 days before the date of printing of
the advertisement.
6.03 LICENSEE shall pay to LICENSOR the sum of $1,900 as a publication
fee for each individual school with which it contracts to provide the
Advertising Product or products not later than 45 days after the date
of the contract and, in any event, not later than the date of the
submittal of the graphics related to the product to the printer.
7. TRAINING.
7.01 LICENSEE may request training from LICENSOR, which training, if
agreed to by LICENSOR, shall be determined by LICENSOR and shall be at a
time mutually agreed to by LICENSEE and LICENSOR.
7.02 LICENSEE shall reimburse LICENSOR for all travel-related
expenses, not to exceed $1,200. All travel-related expenses exceeding
$1,200 shall be paid by LICENSOR.
8. TERM/EXPIRATION.
8.01 The term of this Agreement shall begin immediately upon execution
of this Agreement and shall expire sixty (60) months thereafter.
8.02 This Agreement is subject to renewal or extension by the parties;
provided, however, any such renewal or extension must be agreed upon, in
writing, at least six (6) months prior to the end of the initial five
(5)-year term hereof and LICENSEE has satisfied the minimum performance
standards of having contracted with at least 25 schools.
9. TERMINATION.
9.01 LICENSOR shall have the right to terminate this Agreement upon
thirty (30) days' written notice to LICENSEE in the event that LICENSEE
fails to contract with a minimum of 15 schools in any given school year,
with the exception of the first school year terminating after the date
of the execution of this Agreement.
9.02 LICENSOR shall have the right to terminate this Agreement upon
thirty (30) days' written notice to LICENSEE in the event that any
breach or violation by LICENSEE of any material provision set forth in
the Agreement shall continue for a period of thirty (30) days following
notice of such breach or violation given to LICENSEE by LICENSOR.
9.03 Upon the expiration or termination of this Agreement, LICENSEE
will promptly discontinue any and all use of the INTELLECTUAL PROPERTY.
9.04 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
Advertising Product.
10. ASSIGNABILITY.
10.01 LICENSOR shall retain 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. LICENSEE shall not
assign or license any of its rights under this Agreement without the
prior written consent of LICENSOR, which consent shall be given or
withheld in LICENSOR's sole discretion.
11. PROPERTY RIGHTS.
11.01 Other than the limited 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.
11.02 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,
title or interest in or to the INTELLECTUAL PROPERTY or that of any
successor, assignee, affiliate or subsidiary of LICENSOR.
12. RELATIONSHIP OF THE PARTIES.
12.01 This Agreement does not create an employment,
partnership, joint venture or agency relationship between the parties,
and neither LICENSEE nor LICENSOR shall have any 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 whatsoever.
13. LIABILITY.
13.01 LICENSOR shall have no liability whatsoever to
LICENSEE or any other person or entity for or on account of any injury,
loss or damage, of any kind or nature, sustained by or any damage
assessed or asserted against, or any other liability incurred by or
imposed upon LICENSEE or any other person or entity, arising out of or
in connection with or resulting from:
(i) the production, marketing, distribution, use, offer for
sale or sale of any ADVERTISING PRODUCT and/or products and
materials under this Agreement; or
(ii) any advertising or other promotional activities by
LICENSEE with respect to the ADVERTISING PRODUCT and/or products
and materials under the INTELLECTUAL PROPERTY or this Agreement.
14. INFRINGEMENT.
14.01 LICENSEE shall immediately notify LICENSOR of any
unauthorized use and/or suspected infringement of the INTELLECTUAL
PROPERTY. Such notification 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.
14.02 LICENSOR shall have the primary, and in the first
instance sole, right to institute a suit for infringement, unfair com-
petition 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 warranted or is not in its best interests.
14.03 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 prove its own interests.
14.04 LICENSEE agrees that it shall, at all times,
reasonably cooperate with LICENSOR and its counsel, in all respects,
with respect to any unauthorized use or suspected or alleged
infringement 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.
14.05 Any damages and/or recovery received pursuant to such
litigation or settlement or compromise shall be the sole and exclusive
property of LICENSOR.
14.06 If LICENSOR decides, in its discretion, not to take
any action with respect to an unauthorized use or suspected
infringement, then LICENSEE may, at its own option and sole expense,
take such action on its own behalf as it deems appropriate and any
damages, recovery, settlement or compromise obtained thereby shall be
for the account of LICENSEE.
15. INDEMNIFICATION.
15.1 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 costs 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 ADVERTISING PRODUCT 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 ADVERTISING 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.
15.2 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 INTELLECTUAL PROPERTY. Further, LICENSOR may defend any such
action with counsel of its own choosing; shall have the right to settle
or compromise any such dispute or action when, in its sole judgment,
settlement or compromise is warranted; and shall have the sole right to
decide whether to appeal any adverse decision of a tribunal in any
action.
16. BEST EFFORTS.
16.1 LICENSEE has neither an express nor an implied duty to
promote, advertise, market or sell the ADVERTISING PRODUCT, unless
otherwise expressly provided herein.
16.2 LICENSEE shall use its discretionary business
judgment to determine to what extent, if any, it shall exploit the
rights granted to it under this Agreement.
17. SEVERABILITY.
17.1 If any part, term or provision of this Agreement
shall be found to be 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.
18. INTEGRATION; ALTERATION.
18.1 Integration. This Agreement contains the entire
understanding between the parties and supersedes all other agreements,
representations and warranties, express or implied, between the parties
concerning the INTELLECTUAL PROPERTY.
18.2 Alteration. Any modification or amendment of this
Agreement shall be effective if made in writing and signed by both
parties.
19. GOVERNING LAW.
This Agreement shall be construed and interpreted, and its
performance shall be governed, by the substantive laws of the State of
Colorado. Any lawsuit relating to the enforcement, interpretation or
construction of this Agreement shall be brought in a court in Denver,
Colorado.
20. NOTICES.
Any and all notices or other writings that are required or
permitted under any of the provisions of this Agreement shall be in
writing and shall be deemed sufficiently delivered if mailed by
Certified Mail, addressed to the party concerned as follows:
(a) if addressed to LICENSOR:
Mr. Phil E. Ray, President
Community Alliance, Inc.
558 Castle Pines Parkway, Suite b4-158
Castle Rock, Colorado 80108
Phone: 303-814-0076
Fax: 303-730-7947
and
(b) if addressed to LICENSEE:
Ms. Rachelle Hagerty
5413 Amherst Drive
Parma, Ohio 44129
Phone: 440-886-5468
or any other addresses of which either party shall notify the other in
writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first above written as indicated below.
LICENSOR:
COMMUNITY ALLIANCE, INC.
By: /s/Phil E. Ray
------------------------
Phil E. Ray
Title: President
Date:
LICENSEE:
By: /s/Rachelle Hagerty
----------------------------
Rachelle Hagerty
Date:
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