EXCLUSIVE LICENSE AGREEMENT
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THIS EXCLUSIVE LICENSE AGREEMENT (hereinafter referred to as the "License
Agreement"), effective on October 12, 2005, by and between WATAIRE INDUSTRIES,
INC. (the "Licensor"), and INTERNATIONAL DEVELOPMENT CORP. (the "Licensee").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Licensor has developed and is the owner of certain processes
and products relating to the technology-based water generation and purification;
and
WHEREAS, the Licensor is the owner of certain Patents, hereinafter defined,
on technology-based water generation and purification; and
WHEREAS, Licensee desires to obtain the exclusive right to distribute and
sell the aforesaid water generation and purification products in the United
States of America, as set forth in this License Agreement; and
WHEREAS, Licensor desires to grant to Licensee such exclusive license, as
set forth in this License Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and obligations
hereinafter set forth and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
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DEFINITIONS
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Each of the following terms shall, wherever found in this License
Agreement, be used and understood in accordance with the corresponding
definition below:
1.1 "Territory" shall mean the United States of America.
1.2 "Water Generation and Purification Technology" shall mean any product
developed by Licensor, or with the assistance or at the direction of Licensor,
whether developed prior to or subsequent to the Effective Date of this License
Agreement, including any process for water generation and purification, any
equipment for generating or purifying water, and any apparatus and
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methods which may be used by the Licensor in its business of water generation
and purification.
1.3 "Patents" shall mean any patents and patent applications on Water
Generation and Purification Technology and/or any divisions,
continuations-in-part, applications or reissues thereof, and all United States
and Foreign Letters Patents issued upon any such patent applications.
1.4 "Know-How" and "Information" shall mean all of the technical know-how,
information, processes, formulas, and preparation and usage information on
materials and sources thereof, directly or indirectly related to the production
process for the Licensed Products, including without limitation, mechanical,
chemical, engineering, and other scientific and practical information and
formulas, and technical information such as clinical data, drawings,
specifications, notes, models, records, and other writings; all such Know-How
and Information shall be used or practiced or be capable of being used or
practiced for the development and use of the Water Generation and Purification
Technology and/or any Improvements thereon.
1.5 "Improvement" shall mean any modifications or changes to the Water
Generation and Purification Technology.
1.6 "Licensed Products" shall mean all products of manufacture which
embody, employ, or include the Water Generation and Purification Technology, and
all parts and components thereof; provided that Licensed Products shall
specifically not include services performed in association with the Water
Generation and Purification Technology. Any of such Licensed Products may also
be referred to individually and shall be termed "Licensed Product".
1.7 "Effective Date" shall mean October 12, 2005, which is the day on which
this License Agreement shall become effective.
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ARTICLE II
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GRANT OF EXCLUSIVE LICENSE
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2.1 Licensor grants to Licensee a perpetual, exclusive license to
distribute the Licensed Product and, subject to the terms of Article V, the
Improvements ("License") throughout the Territory.
2.2 The License granted herein shall specifically include the right of the
Licensee to grant sublicenses to others throughout the Territory; provided
however, that any sublicense granted by Licensee shall not be inconsistent with
the terms of this License Agreement.
ARTICLE III
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ASSISTANCE BY LICENSOR
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3.1 Within ten (10) days after execution of this License Agreement,
Licensor shall supply to Licensee, at Licensee's principal office in Buffalo,
New York without expense to Licensee, all materials, know-how and written
information related to the Water Generation and Purification Technology not
previously delivered.
3.2 For a period of six months after the Effective Date hereof, Licensor
shall use its best efforts to develop and assist Licensee in developing
effective marketing techniques for Licensed Products.
ARTICLE IV
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CONSIDERATION
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4.1 Licensee agrees to issue to Licensor 15,000,000 shares of the
Licensee's Series C preferred stock, par value $0.001 per share, on the
Effective Date of this License Agreement in consideration of the License granted
in Paragraph 2.1.
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ARTICLE V
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IMPROVEMENTS
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5.1 Licensor and Licensee agree that they shall keep each other mutually
informed of any Improvements of which they become aware, whether they become
aware of such Improvements through their own efforts or efforts of third
parties. Licensor and Licensee shall inform one another of the nature and
substance thereof within ninety (90) days following awareness of such
Improvements.
5.2 Licensor hereby grants Licensee an exclusive license throughout the
Territory under any Improvements of which Licensor becomes the owner pursuant to
this Article V without any additional cost, the obligation of payment as stated
in Article IV shall be acknowledged as adequate consideration for the license of
such Improvements.
5.3 Licensor and Licensee agree to execute any documents or papers deemed
necessary to effectuate the intent of this Article V and further to execute such
documents or papers as may be necessary for the prosecution of any patents or
applications for patents covering the Improvements. All expenses with respect to
such assignments or patent applications shall be borne by the party making such
request and prosecuting such application.
ARTICLE VI
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DUTIES OF LICENSEE
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6.1 Licensee agrees to use its best efforts to distribute and market the
Licensed Product during the term of this License Agreement.
ARTICLE VII
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CONFIDENTIALITY
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7.1 Licensor and Licensee mutually agree to hold in confidence the
Information disclosed by Licensor to Licensee pursuant to the perpetual
exclusive License of Paragraph 2.1. Both parties further agree that disclosure
of such Know-How and Information to third parties may
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be made only with the written consent of the party not making the disclosure.
The provisions of this Paragraph 7.1 shall not be applicable with respect to
Licensee as to such of the Know-How and Information as:
(a) is, or shall have been in the possession of Licensee prior to the
first disclosure by Licensor thereof to Licensee of any information
regarding the Water Generation and Purification Technology;
(b) is, or through no fault of Licensee becomes, published or
otherwise available to others or the public under circumstances such that
such others or the public may utilize the information without any direct or
indirect obligation to Licensor, such as disclosure to the public through
sale of Licensed Products to the public; and
(c) is, or at any time may be, acquired by Licensee from any third
party rightfully possessed of the information and having no direct or
indirect obligation to Licensor with respect to the information.
(Information defined in subparagraphs (a), (b) and (c) hereof shall be in
the "public domain.")
7.2 Licensor covenants and agrees that the Licensor will not engage in the
business of selling Licensed Products, either on his own behalf, or as a
partner, or as an employee, or as a consultant, in the United States, as long as
this License Agreement is in effect.
ARTICLE XIII
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DURATION AND REVOKABILITY
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8.1 This License Agreement shall be perpetual in duration. This License
Agreement shall be irrevocable.
ARTICLE IX
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REPRESENTATIONS AND WARRANTIES
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9.1 Licensor hereby represents and warrants to Licensee that Licensor owns
and holds the exclusive right and title in and to the Licensed Product, subject
to no restrictions or encumbrances of any kind. Licensor further represents and
warrants that it has not heretofore made
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any license, commitment or agreement, nor will Licensor make any license,
commitment or agreement for the term of this License Agreement, which is
inconsistent with this License Agreement and the rights granted herein, and that
it has full and complete power and authority to enter into and carry out its
obligations under this License Agreement and under any documents which may be
executed in connection herewith. Licensor agrees to indemnify and hold Licensee
harmless from any liabilities, costs and expenses (including attorneys' fees and
expenses), obligations and causes of action arising out of or related to any
breach of the representations and warranties made by Licensor herein.
9.2 Licensor hereby represents and warrants to Licensee that as a result of
Licensor's actions, no other person, firm or corporation has any right, title or
claim in or to the Patents, or the Know-How and Information, and Licensor owns
and holds the exclusive right, title and interest in and to the Patents free of
all liens, restrictions or encumbrances of any kind.
9.3 Prior to the Effective Date hereof, Licensee is free, without recourse
by Licensor, to enter into any contract or agreement as to any subject matter,
including the subject matter of this License Agreement.
ARTICLE X
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ASSIGNMENT
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10.1 Licensee shall have the right to assign this License Agreement or any
interest herein or any right hereunder, to an affiliate, parent, subsidiary or
related corporation upon thirty (30) days' prior written notice to Licensor.
ARTICLE XI
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APPLICABLE LAW
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11.1 This License Agreement shall be construed, interpreted and applied in
accordance with the laws of the State of Texas, without giving effect to the
conflict of laws provisions thereof.
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ARTICLE XII
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NOTICES
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12.1 All notices, demands, or other writings in this License Agreement
provided to be given or made or sent, or which may be given or made or sent, by
either party hereto to the other, shall be deemed to have been fully given or
made or sent when made in writing and deposited in the United States mail, first
class, postage prepaid, sent certified or registered mail, and addressed as
follows:
If to Licensor:
Wataire Industries Inc.
Suite # 24- 3033
King George Hwy, White Rock
BC, Canada V4P 1B8
Attn: Phil Fraser
If to Licensee:
International Development Corp.
534 Delaware Avenue, Suite 412
Buffalo, New York 14202
Attn: Betty-Ann Harland
or at such other address as either party hereto may specify by notice given in
accordance with this Paragraph 12.1.
ARTICLE XIII
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WAIVER
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13.1 Each party covenants and agrees that if the other party fails or
neglects for any reason to take advantage of any of the terms hereof providing
for the termination of this License Agreement or if, having the right to declare
this License Agreement terminated, such other party shall fail to do, any such
failure or neglect shall not be or be deemed or be construed to be a waiver
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of any cause for the termination of this License Agreement subsequently
occurring, or as a waiver of any of the terms, covenants, or conditions of this
License Agreement or of the performance thereof. None of the terms, covenants,
or conditions of this License Agreement can be waived except by the written
consent of the waiving party. Except as otherwise stated herein each of the
parties hereby waives any claims which it might have against the other prior to
the date of the execution of this agreement.
ARTICLE XIV
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PRODUCTS LIABILITY
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14.1 Licensee will carry products liability insurance in an amount
commensurate with the risks connected with the distribution and sale of the
Licensed Products. Such insurance will name Licensor as coinsured. Licensee
agrees to indemnify and hold Licensor harmless against any and all claims,
liabilities, losses, expenses, fees, including without limitation attorneys'
fees, damages, including without limitation amounts of judgment and/or amounts
paid in settlement, or costs (all of the foregoing being collectively called
"Costs") incurred by it and arising out of or attributable to the distribution
and sale of Licensed Products. Promptly after receipt of notice of the
commencement of any action or assertion of any claim against Licensor in respect
of which indemnification may be sought, Licensor shall notify Licensee in
writing of the commencement of such action or assertion of such claim. Upon
receipt of the notice of commencement of suit or assertion of such claim,
Licensee shall notify Licensor within fifteen (15) days that Licensee shall
appear and defend (including the sole authority to compromise and settle such
claim; provided however, that such settlement or compromise does not affect in
any way the activities or rights of Licensor) against any such suit or claim at
Licensee's expense, with an attorney of its choice. In the event Licensee shall
fail to give notice of and undertake to appear and defend within such fifteen
(15) day period, then it is hereby expressly agreed that the right to appear and
defend by Licensee has been waived and Licensor shall proceed on its sole
authority, at Licensee's expense.
14.2 Licensor agrees to indemnify and hold Licensee harmless against any
and all claims, liabilities, losses, expenses, fees, including without
limitation attorneys' fees, damages, including
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without limitation amounts of judgments and/or amounts paid in settlement, or
costs (all of the foregoing being collectively called "Costs") incurred by it
and arising out of or attributable to the design of Licensed Products. Promptly
after receipt of notice of the commencement of any action or assertion of any
claim against Licensee in respect of which indemnification may be sought,
Licensee shall notify Licensor in writing of the commencement of such action or
assertion of such claim. Upon receipt of the notice of commencement of suit or
assertion of such claim, Licensor shall notify Licensee within fifteen (15) days
that Licensor shall appear and defend (including the sole authority to
compromise and settle such claim; provided however, that such settlement or
compromise does not affect in any way the activities or rights of Licensor)
against any such suit or claim at Licensor's expense, with an attorney of its
choice. In the event Licensor shall fail to give notice of and undertake to
appear and defend within such fifteen (15) day period, then it is hereby
expressly agreed that the right to appear and defend by Licensor has been waived
and Licensee shall proceed on its sole authority at Licensor's expense.
ARTICLE XV
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MISCELLANEOUS
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15.1 Scope of Agreement. This License Agreement constitutes the entire
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agreement between the parties pertaining to the subject matter hereof.
15.2 Construction. The parties acknowledge that each party and its
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counsel have reviewed and revised this License Agreement and that the normal
rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this
License Agreement or any amendments or exhibits hereto.
15.3 Headings. The subject headings of the paragraphs of this License
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Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of its provisions.
15.4 Counterparts. This License Agreement may be executed in one or
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more counterparts, and all so executed shall constitute one agreement, binding
on both parties hereto notwithstanding that both parties are not signatory to
the same counterpart.
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15.5 Severability. If any part or parts of this License Agreement are
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found to be illegal or unenforceable, the remainder shall be considered
severable, shall remain in full force and effect, and shall be enforceable.
15.6 Further Documents. Each of the parties shall take all necessary
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actions, including the execution and delivery of all necessary documents or
instruments, as may be reasonably requested by the other party in order to
effectuate the intent of this License Agreement.
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ARTICLE XVI
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FORCE MAJEURE
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16.1 Neither party hereto shall be liable to the other party for failure or
delay in the performance of any duties or obligations hereunder or in making
shipments of Licensed Products manufactured hereunder due to strikes, lockouts,
acts of God, acts of war, fire, flood, explosions, embargo, litigation or labor
disputes, Government or any other laws and regulations, or any other cause
beyond the control and without the fault of such party.
IN WITNESS WHEREOF, the parties hereto have executed this License Agreement
in duplicate originals, individually, or by their duly authorized officers or
representatives, as of the date first hereinabove written.
WATAIRE INDUSTRIES, INC.
By /s/ Phil Fraser
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Phil Fraser
President
INTERNATIONAL DEVELOPMENT CORP.
By /s/ Betty-Ann Harland
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Betty-Ann Harland
CEO
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