Exhibit 10.2 - Exclusive Technology License and Patents Agreement
between EnzymeBioSystems and Berkeley Clinic LC, dated January 28, 2011
EXCLUSIVE TECHNOLOGY LICENSE
AND
PATENTS AGREEMENT
THIS AGREEMENT, effective January 28, 2011, is entered into by Berkeley
Clinic LC, an Arizona Limited Liability Company (herein called "LICENSEE")
and EnzymeBioSystems (herein called "LICENSOR").
ARTICLE I
BACKGROUND OF AGREEMENT
LICENSOR represents that it is the owner of the right to file PATENTS
and IMPROVEMENTS, PROPRIETARY INFORMATION, TRADE SECRETS, TECHNICAL and
SCIENTIFIC information and KNOW-HOW, all pertaining to the development of all
enzyme products (herein called TECHNOLOGY). LICENSOR desires to grant an
exclusive fifty (50) percent ownership and one million Series A Preferred
shares of EnzymeBioSystems to LICENSEE and assign all rights, title and
interest in all foreign patents granted at a future date, subject to certain
terms and conditions in exchange for One Hundred Fifty Thousand ($150,000)
Dollars.
1.01 LICENSEE wishes to acquire an exclusive license pursuant to the
issuance of future domestic and foreign PATENTS and IMPROVEMENTS, PROPRIETARY
INFORMATION, TRADE SECRETS, TECHNICAL and SCIENTIFIC information, KNOW-HOW
and registered TRADEMARKS of LICENSOR for purposes of making, using and
selling the TECHNOLOGY on a foreign basis developed by the LICENSOR.
1.02 LICENSEE wishes to acquire fifty (50) percent all rights, title and
interest in all domestic and foreign patents filed as of the date of this
agreement that related to the TECHNOLOGY and any foreign patents filed and
granted in the future by the LICENSOR, including all improvements on foreign
patents filed or to be filed in the future, pursuant to certain
considerations in the form of a Product Royalty to be paid to the LICENSOR,
by the LICENSEE or SUBLICENSES.
ARTICLE II
DEFINITIONS
As used herein, the following terms shall have the meanings set forth below:
2.00 CONFIDENTIAL INFORMATION is that information that is transmitted by
LICENSOR and received by LICENSEE that is considered by LICENSOR to be
CONFIDENTIAL and PROPRIETARY INFORMATION.
2.01 EFFECTIVE DATE shall be January 28, 2011.
2.02 KNOW-HOW means that special knowledge, skill and experience, as
applied to the LICENSED PRODUCT and the LICENSED PROCESS and TECHNOLOGY, that
is possessed by the LICENSOR that is PROPRIETARY or CONFIDENTIAL INFORMATION.
2.03 LICENSED FIELD means, and is limited to, the practice of PATENT(S)
and IMPROVEMENTS, PATENTS that may issue in the future, PROPRIETARY
INFORMATION, TRADE SECRETS, TECHNICAL and SCIENTIFIC information and KNOW-HOW
for purposes of using the LICENSED PRODUCT and the LICENSED TECHNOLOGY on an
exclusive worldwide basis.
2.04 LICENSED PRODUCTS or DESIGNS means any and all products which
fall within the LICENSED FIELD and which are covered by, marked or are
produced using a process or method covered by a claim of a PATENT(S) and
IMPROVEMENTS, PROPRIETARY INFORMATION, TRADE SECRETS, TECHNICAL and
SCIENTIFIC information and KNOW-HOW of LICENSOR for purposes of commercially
using the LICENSED TECHNOLOGY.
2.05 LICENSED PROCESS AND TECHNOLOGY means any and all process or
proprietary technology, engineering and design features or components which
fall within the LICENSED FIELD which were developed by the LICENSOR or his
affiliates and which are covered by, marked or are produced using a process
or method covered by a claim of a PATENT(S) and IMPROVEMENTS, PROPRIETARY
INFORMATION, TRADE SECRETS, TECHNICAL and SCIENTIFIC information and KNOW-HOW
of LICENSOR for purposes of commercially utilizing the LICENSED PRODUCT.
2.06 LICENSED TERRITORY shall mean all countries of the world.
2.07 LICENSEE means Berkeley Clinic LC. an Arizona Limited Liability
Company.
2.08 LICENSOR means EnzymeBioSystems, a Nevada Corporation.
2.09 PATENT(S), PROVISIONAL PATENT(S) or PATENT APPLICATION(S)
means any PATENT(S) granted or PATENT APPLICATION(S) made by LICENSOR
pursuant thereto, and all divisions, continuations, continuations in part,
reissues, substitutes, and extensions thereof.
2.10 PROPRIETARY INFORMATION means all information possessed by the
LICENSOR that is CONFIDENTIAL in nature and that the LICENSOR has exclusive
rights in and to. It includes TRADE SECRETS, TECHNICAL and SCIENTIFIC
information, and KNOW-HOW as related to the LICENSED PRODUCTS and the
LICENSED TECHNOLOGY.
2.11 TECHNICAL and SCIENTIFIC information means all PROPRIETARY
INFORMATION, TRADE SECRETS, KNOW-HOW and all information contained in
PATENT(S) that may issue or PATENT APPLICATION(S) and IMPROVEMENTS that is
the exclusive property of LICENSOR developed or acquired as of the date of
this agreement which would be useful in the making, using and selling of the
LICENSED PRODUCTS in the LICENSED TERRITORY.
2.12 TRADE SECRET means any CONFIDENTIAL INFORMATION that is the
personal property of LICENSOR and in which he has an exclusive right.
ARTICLE III
LICENSE GRANT
3.00 LICENSOR hereby grants to LICENSEE, a license under any PATENT(S)
or PATENT APPLICATION(S) to be filed and IMPROVEMENTS, PROPRIETARY
INFORMATION including TRADE SECRETS, TECHNICAL and SCIENTIFIC information,
and KNOW-HOW for the purpose of using the LICENSED PRODUCTS and the LICENSED
PROCESS and TECHNOLOGY, specifically the development of enzyme related
products, not limited but including any product developed and researched at
Northeastern Ohio Universities Colleges of Medicine and Pharmacy, 4209 State
Route 44, Rootstown, Ohio 44272.
(a) The Parties agree that any IMPROVEMENTS, design changes,
modifications or developments of the LICENSED PRODUCT or the LICENSED
TECHNOLOGY, made by LICENSOR shall be available to LICENSEE in the LICENSED
TERRITORY at no additional cost. In the event LICENSOR makes application for
any new patent, LICENSEE shall have the right to use and purchase for $1.00
and other good and valuable consideration, fifty (50) percent ownership in
any newly developed product, process or technology under this Agreement.
(b) The Parties further agree that any IMPROVEMENTS, design changes,
modifications or developments of the LICENSED PRODUCT or LICENSED TECHNOLOGY
made by LICENSEE, which may be patented, may be made or used in the LICENSED
TERRITORY by the LICENSEE. LICENSEE shall promptly inform LICENSOR of any
such IMPROVEMENTS or of the filing of any patent applications by LICENSEE.
LICENSEE shall grant to LICENSOR, for no consideration, and on a ROYAL free
basis, an exclusive license on a foreign basis (i.e, outside the USA). Any
IMPROVEMENTS, design changes, modifications or developments of the LICENSED
PRODUCT or LICENSED TECHNOLOGY by LICENSEE are construed to be a part of this
Agreement and LICENSEE shall be bound to all terms and conditions contained
in this Agreement.
3.01 LICENSOR further grants to LICENSEE, to the extent of the LICENSED
FIELD and LICENSED TERRITORY, a license to use any registered TRADEMARK,
owned, acquired, developed or filed for by the LICENSOR, relating to the
LICENSED PRODUCT or LICENSED PROCESS and TECHNOLOGY.
3.02 The PRODUCT LICENSE granted pursuant to Sections 3.00 and 3.01 shall
be exclusive, with the right to grant EXCLUSIVE SUBLICENSES thereafter for
the term of this Agreement as defined in Article VI. Such approval shall not
be unreasonably withheld. Any EXCLUSIVE SUBLICENSE agreement of LICENSEE
shall be bound by all terms of this Agreement, unless expressly excluded in
writing, by LICENSOR.
ARTICLE IV
PAYMENTS FOR PATENTS
4.00 LICENSEE shall, on or about February 1, 2011, as a one time only
LICENSEE FEE, pay to LICENSOR, as consideration One Hundred Fifty Thousand
($150,000) Dollars, of which Fifty Thousand ($50,000) Dollars has already
been paid, to purchase 1,000,000 shares of the LICSENSOR'S Series A
Designated Preferred Stock and fifty (50) percent ownership, in perpetuity,
in EnzymeBioSystems' international Patents and intellectual property.
ARTICLE V
RIGHT TO PURCHASE PATENTS AT THE TIME OF GRANT
5.00 In the event the LICENSOR is granted foreign patents issued in
the future, the LICENSOR hereby agree that within Sixty (60) days they will
execute any and all documents necessary to legally assign or transfer all
right, title and interest of the PATENTS to the LICENSEE for One Dollar
($1.00) and other good and valuable consideration. It being understood that
so long as this AGREEMENT remains in good standing, the LICENSOR agrees to
assume financial responsibility to pay directly all costs related preparing
and prosecution patent applications on behalf of the LICENSEE, including but
not limited to legal fees, filing fees, maintenance fees and translation
costs.
ARTICLE VI
EXPORTATION
6.00 LICENSEE shall be limited to the use of the LICENSED PRODUCT or
LICENSED PROCESS and TECHNOLOGY in the LICENSED FIELD to the LICENSED
TERRITORY. LICENSEE shall not export the LICENSED PRODUCT or LICENSED PROCESS
and TECHNOLOGY to countries or territories that would be deemed to be high
risk with regard to utilizing the technology without legal authorization.
Any country to which the LICENSEE proposes to grant SUBLICENSES to, must have
without written authorization and consent from the LICENSOR.
6.01 SUBLICENSE agreements shall be limited to the use of the LICENSED
PRODUCT or LICENSED TECHNOLOGY in the LICENSED FIELD to the LICENSED
TERRITORY. SUBLICENSEE(S) shall not export LICENSED PRODUCT or LICENSED
TECHNOLOGY to any customer in any country or territory without written
notification to and receipt of written authorization and consent from
LICENSOR.
6.02 In the event the LICENSEE grants and executes a SUBLICENSE agreement
that is approved by LICENSOR, it is understood that all proprietary
components of the LICENSED PRODUCT shall be purchase exclusively through the
LICENSEE or the LICENSOR.
ARTICLE VII
CONFIDENTIALITY
7.00 LICENSEE, LICENSEE'S employees and SUBLICENSEES shall not disclose,
by any method of communication, any PROPRIETARY INFORMATION, TRADE SECRETS,
TECHNICAL and SCIENTIFIC information, KNOW-HOW or other CONFIDENTIAL
INFORMATION expressly or implied disclosed by LICENSOR to LICENSEE without
the expressed written permission of LICENSOR.
7.01 Any SUBLICENSE Agreement of LICENSEE shall incorporate and contain
the terms of Article VI and VII of this Agreement and any SUBLICENSE shall
sign a separate Confidentiality Agreement with LICENSEE relative to
PROPRIETARY and CONFIDENTIAL INFORMATION received as the result of this
Agreement.
ARTICLE VIII
PRIVATE LABELS
8.00 All LICENSED PRODUCT used pursuant to this LICENSE AGREEMENT,
may be used under any TRADEMARK(S) developed or owned by the LICENSOR or a
TRADEMARK developed and owned by the LICENSEE. In the event that any
TRADEMARK utilized by the LICENSEE, is in conflict with another company
operating within any country in the TERRITORY, any other such PRIVATE LABEL
selected by LICENSEE or SUBLICENSEE may be used.
8.01 The PRIVATE LABEL of the LICENSED PRODUCT shall comply with the
appropriate regulations of all governmental agencies of the country within
the TERRITORY.
8.02 As long as this exclusive LICENSEE AGREEMENT or any modification or
extension thereof remains in force and effect, LICENSEE shall own each such
PRIVATE LABEL or trademark to be used exclusively by LICENSEE on LICENSED
PRODUCT.
ARTICLE IX
REPRESENTATIONS AND DISCLAIMER OF WARRANTIES
9.00 NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO BE A REPRESENTATION OR
WARRANTY BY LICENSOR OF THE VALIDITY OF ANY PATENTS, PATENTS THAT MAY ISSUE,
PATENT APPLICATIONS AND IMPROVEMENTS, PROPRIETARY KNOWLEDGE, TRADE SECRETS,
TECHNICAL AND SCIENTIFIC INFORMATION, KNOW-HOW AND REGISTERED TRADEMARKS
LICENSOR SHALL HAVE NO LIABILITY WHATSOEVER TO LICENSEE OR ANY OTHER PERSON
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, ARISING
OUT OF OR IN CONNECTION WITH, OR RESULTING FROM:
(a) THE PRODUCTION, USE OR SALE OF ANY APPARATUS OR PRODUCT, OR THE
PRACTICE OF ANY PATENTS THAT MAY ISSUE, PATENT APPLICATIONS OR IMPROVEMENTS;
OR
(b) ANY ADVERTISING OR OTHER PROMOTIONAL ACTIVITIES WITH RESPECT TO
ANY OF THE FOREGOING.
(c) LICENSEE SHALL HOLD LICENSOR, AND ITS PARTNERS, AGENTS OR
EMPLOYEES HARMLESS IN THE EVENT LICENSOR, OR ITS OFFICERS, AGENTS OR
EMPLOYEES, IS HELD LIABLE.
9.01 LICENSOR shall have the right to file, prosecute and maintain PATENT
APPLICATIONS and IMPROVEMENTS that are the property of LICENSOR and shall
have the right to determine whether or not, and where to file a patent
application or to abandon the prosecution of any patent or patent
application.
ARTICLE X
TERMINATION
10.00 This Agreement shall terminate:
(a) upon termination of this Agreement, the PRODUCT ROYALTY shall
continue in perpetuity.
(b) if the one time only License Fee totaling $150,000 is not paid
on or before February 29, 2011.
10.01 LICENSEE may terminate this Agreement at any time upon sixty (60)
days written notice in advance to LICENSOR.
If either party shall be:
(a) in default of any obligation hereunder; or
(b) shall be adjudged bankrupt; or shall become insolvent; or
(c) shall make an assignment of this Agreement to a third party.
10.03 The word "termination" and cognate words, such as "term" and
"terminate", used in Article XII and elsewhere in this agreement, are to
read, except where the contrary is specifically indicated, as omitting from
their effect, the following rights and obligations, all of which survive any
termination to the degree necessary to permit their complete fulfillment or
discharge:
(a) LICENSOR'S obligation to supply a terminal report as specified in
paragraph 10.02 of this Agreement;
(b) LICENSOR'S obligation to maintain records under Section under 15.00
of this Agreement;
(c) licenses, releases and agreements of nonassertion running in favor of
customers or transferees of LICENSOR in respect to products sold or
transferred by LICENSOR prior to any termination and on which ROYALTIES shall
have been paid as provided in paragraph 4.01 of this Agreement;
(d) any cause of action or claim of LICENSEE accrued or to accrue,
because of any breach or default by LICENSOR.
ARTICLE XI
ARBITRATION
11.00 Any controversy or dispute arising out of or in connection with
this Agreement, its interpretation, performance, or termination, which the
parties are unable to resolve within a reasonable time after written notice
by one party to the other of the existence of such controversy or dispute,
may be submitted to arbitration by either party and if so submitted by either
party, shall be finally settled by arbitration conducted in accordance with
the rules of conciliation and arbitration of the Chamber of Commerce in
effect on the date hereof. Any such arbitration shall take place in the City
of Las Vegas, Nevada. Such arbitration shall be conducted in the English
language and the arbitrators shall apply the laws of the Country of the
United States.
11.01 The institution of any arbitration proceeding hereunder shall not
relieve LICENSEE of its obligation to make payments accrued hereunder
pursuant to Sections 4.00 hereof to LICENSOR during the continuance of such
proceeding. The decision by the arbitrators shall be binding and conclusive
upon the parties, their successors, and assigns and they shall comply with
such decision in good faith, and each party hereby submits itself to the
jurisdiction of the courts of the place where the arbitration is held, but
only for the entry judgment with respect to the decision of the arbitrators
hereunder. Notwithstanding the foregoing, judgment upon award may be entered
in any court where the arbitration takes place, or any court having
jurisdiction.
ARTICLE XII
LITIGATION
12.00 Each party shall notify the other party in writing of any suspected
infringement(s) of any PATENT(S) or PATENT(S) that may issue, PATENT
APPLICATIONS and IMPROVEMENTS, PROPRIETARY INFORMATION, TRADE SECRETS,
TECHNICAL and SCIENTIFIC information, KNOW-HOW and registered TRADEMARKS in
the LICENSED TERRITORY, and shall inform the other party of any evidence of
such infringement(s).
12.01 LICENSOR shall have the first right to institute suit for
infringement(s) in the LICENSED FIELD and the LICENSED TERRITORY. LICENSEE
agrees to join as a party plaintiff in any such lawsuit initiated by
LICENSOR, if requested by LICENSOR, with all costs, attorney fees, and
expenses to be paid by LICENSOR. However, if LICENSEE does not institute
suit for infringement(s) within ninety (90) days of receipt of written notice
from LICENSEE of LICENSOR'S desire to bring suit for infringement in its own
name and on its own behalf, then LICENSEE may, at its own expense, bring suit
or take any other appropriate action.
12.02 If this Agreement is non-exclusive at the time of infringement(s),
the sole right to institute suit for infringement and to recover damages
shall rest with LICENSOR. damages resulting from any lawsuit brought by
LICENSOR to enforce any patent that my issue pursuant to paragraph 12.01.
12.04 Either party may settle with an infringer without the prior
approval of the other party if such settlement would not affect the rights of
the other party under any patent that may issue, PATENT APPLICATIONS and
IMPROVEMENTS, PROPRIETARY INFORMATION, TRADE SECRETS, TECHNICAL and
SCIENTIFIC information, KNOW-HOW and registered TRADEMARKS.
12.05 Any SUBLICENSE agreement of LICENSEE shall incorporate and contain
the terms of Article XII of this Agreement.
ARTICLE XIII
RECORDS
13.00 LICENSOR shall keep accurate records of all operations affecting
payments hereunder, and shall permit LICENSEE or its duly authorized agent to
inspect all such records and to make copies of or extracts from such records
during regular business hours throughout the term of this Agreement and for a
reasonable period of not less than three (3) years thereafter.
13.01 Any SUBLICENSE agreement of LICENSEE shall incorporate and contain
the terms of Article XV of this Agreement.
ARTICLE XIV
PATENT MAINTENANCE FEES
14.00 Pursuant to PATENT(S) and in the event that patents issue on
PATENT APPLICATIONS and IMPROVEMENTS, described herein, or other patents
subsequently issue related to the LICENSED PRODUCT and LICENSED TECHNOLOGY,
maintenance fees shall be paid by LICENSOR and not reimbursed by LICENSEE and
all documentation of payment shall be made available to the LICENSEE.
LICENSOR, upon request by LICENSEE, shall provide LICENSEE with records and
schedule of maintenance fee due dates.
ARTICLE XV
NON-ASSIGNABILITY
15.00 The parties agree that this agreement imposes obligations on
LICENSOR. The LICENSOR shall not assign any rights under this Agreement not
transferable by terms without the written consent of LICENSEE. LICENSEE may
assign his rights hereunder without the consent of the LICENSOR.
ARTICLE XVI
SEVERABILITY
16.00 The parties agree that if any part, term or provision of this
Agreement shall be found illegal or in conflict with any valid controlling
law, the validity of the remaining provisions shall not be affected thereby.
16.01 In the event the legality of any provision of this agreement is
brought into question because of a decision by a court of competent
jurisdiction, LICENSOR, by written notice to LICENSEE, may revise the
provision in question or may delete it entirely so as to comply with the
decision of said court.
ARTICLE XVII
NON-USE OF LICENSOR'S NAME
17.00 In publicizing anything used under this Agreement, LICENSOR shall
not use the name of LICENSEE or otherwise refer to any organization related
to LICENSEE, except with the written approval of LICENSEE. LICENSOR is
authorized to make public the name of the LICENSEE and describe the
contractual relationship between the LICENSEE and LICENSOR if LICENSOR
becomes a publicly traded company and the disclosures are a requirement and
pursuant to the requirements of the Securities Act of 1933 or 1934.
ARTICLE XIII
WAIVER, INTEGRATION, ALTERATION
18.00 The waiver of a breach hereunder may be affected only by a writing
signed by the waiving party and shall not constitute a waiver of any other
breach. APPLICATIONS and IMPROVEMENTS, PROPRIETARY INFORMATION, TRADE
SECRETS, TECHNICAL and SCIENTIFIC information, KNOW-HOW and registered
TRADEMARKS.
18.02 A provision of this Agreement may be altered only by a writing
signed by both parties, except as provided in this Section.
ARTICLE XIV
APPLICABLE LAW
19.00 This Agreement shall be constructed in accordance with the
substantive laws of the state of Nevada.
19.01 The language under which this Agreement shall be interpreted,
arbitrated or litigated shall be English.
ARTICLE XX
NOTICES UNDER THE AGREEMENT
LICENSOR:
- ---------
EnzymeBioSystems
16773 W Park Drive
Chagrin Falls, Ohio, 44023
LICENSEE:
- ---------
Berkeley Clinic LC
P. O. Box 2742
Scottsdale, AZ 85252
or any other addresses of which either party shall notify the other party in
writing.
IN WITNESS WHEREOF the parties have caused this Agreement to be executed
by their duly authorized officers and/or as an individual on the respective
dates and at the respective places hereinafter set forth.
LICENSEE:
Berkeley Clinic LC
By: T J Jesky
---------------------
Title: T J Jesky
Managing Member
LICENSOR:
EnzymeBioSystems
By: Ashot Martirosyan
---------------------
Title: Ashot Martirosyan
President