SUBLICENSE AGREEMENT

This Sublicense Agreement (the “Agreement”) is made this 29th day of March, 2010 (the “Effective Date”), by and between BioLargo, Inc., a Delaware corporation, having a principal place of business at 16333 Phoebe, La Mirada, California, (“BioLargo”), and Isan USA, Inc., a California corporation, having a principal place of business at 2003 Chopin Way, Oceanside, California (“Isan USA”). Each of BioLargo and Isan USA is a “Party”, and the both are collectively referred to herein as the “Parties”.

WHEREAS, BioLargo is a party to that certain sublicense agreement dated March 26, 2010, with Ioteq Inc. pursuant to which BioLargo was granted the exclusive rights to certain intellectual property (as more particularly defined below as “Intellectual Property”), including certain patents that disclose and claim significant and commercially viable inventions which Isan USA desires to commercialize; and

 

WHEREAS, Isan USA desires to gain rights in North America under such Intellectual Property and to commercialize products covered by such Intellectual Property in North America in particular Fields of Use, as defined herein; and

 

WHEREAS, BioLargo is willing to grant an exclusive license of such Intellectual Property in the United States, and certain non-exclusive rights in Canada and Mexico, to Isan USA in the defined Fields of Use, subject to the terms, conditions, limitations, and restrictions set forth in this Agreement.

 

NOW, THEREFORE, incorporating the foregoing recitals, for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and for the mutual covenants contained in this Agreement, the Parties hereby agree as follows:

 

b. Bankruptcy Act means Title 11 of the United States Code, as now or hereafter in effect or any successor statute.

 

c. CupriDyne Technology, solely for the purposes of this agreement, is defined as one or more of (i) technology within the scope of U.S. Patent Nos. 6,146,725 and 6,328,929, (ii) U.S. patent applications directed towards the use of solid materials releasing molecular iodine which are assigned to BioLargo, and (iii) proprietary improvements to this technology of (i) or (ii), whether patented or not, including but not limited to alternative antimicrobial materials and sources.

 

d. Dairy Use means treatment of aqueous media used solely in the production of raw dairy materials (including only milk and cream) from mammals and shall include treatment of water for (i) udder and hoof washing media for use with dairy producing mammals, (ii) general washing and cleansing of wash media used on dairy producing mammals, and (iii) general washing and cleansing of vat and aqueous media transport lines used with the maintenance and care of dairy producing mammals.  Any use of treated media outside Dairy Use or another licensed Field of Use in this Agreement shall not be a licensed use under this agreeme nt solely because some portion of treated material is used within a licensed Field of Use.

 

e. Effective Date means the date first written above.

 

f. Fields of Use means each field consisting of (i) Horticulture, (ii) Post-Harvest Sanitation of Fruits and Vegetables, (iii) Dairy Use, and (iv) Poultry Drinking Water, and subject to the written amendment of this Agreement, and compliance by Licensee of the terms and conditions set forth herein, may include additional Optional Fields of Use.

 

g. Horticulture means the science and art of growing fruits, vegetables, flowers or ornamental plants, including hydroponics, greenhouses, nurseries and field crops during pre-planting treatments, planting treatments and growing treatments up until harvesting.

 

h. Intellectual Property means the intellectual property related to the Isan System developed and owned by Ioteq-Australia and licensed to Ioteq-USA pursuant to that certain IP License Agreement dated March 26, 2010, a true and complete copy of which is attached hereto as Exhibit “C” (the “Ioteq Master License Agreement”), which Intellectual Property was subsequently sublicensed by Ioteq-USA to BioLargo pursuant to that certain license agreement by and between BioLargo, as licensee, and Ioteq Inc., as licensor, dated March 26, 2010, a true and complete copy of which is attached hereto as Exhibit “D” (the “Ioteq License Agreement”), including without limitation the Patent Rights and the Proprietary Rights (as defined herein). The Intellectual Property does not include the CupriDyne Technology as defined herein.

 

i. Ioteq-Australia means Ioteq IP Pty Limited (ABN 58 088 887 914, Australia).

 

j. Ioteq-USA means Ioteq Inc., a Delaware corporation.

 

k. Isan System means the system developed by Ioteq-Australia for the control and delivery of BioMaxA Iodine and the collection of disinfection by-products by BioResA resin.

 

l. License means the licensing of the rights to the Intellectual Property granted by Licensor to Licensee.

 

m. Licensed Processes means any method, process, modality, procedure, practice, or course of action within the Field of Use covered by a claim of Patent Rights.

 

n. Licensed Products means any article, kit, equipment, system, method, apparatus or unit within the Field of Use covered by a claim of Patent Rights.

 

o. Licensee means Isan USA.

 

p. Licensor means BioLargo.

 

q. Net Sales Revenue means gross sales revenue received by Licensee from Licensed Products and Licensed Processes, less any taxes, returns, allowances, discounts, freight, and insurance when the same are actually paid or allowed. Net Sales Revenue does not include revenue generated pursuant to sublicense agreements.

 

r. Oil and Gas Sector means any treatments within the fields of oil and gas technology, including exploration, mass removal (solids, gases or liquids) and post-extraction treatments of the removed masses.

 

s. Optional Fields of Use means any field of commercial endeavor, excluding only the Oil and Gas Sector, as defined herein.

 

t. Patent Rights means:

 

i. U.S. Patent Number 7,033,509, and any continuations, divisions, re-issues, re-examinations and extensions thereof (“U.S. Patents”); and,

 

ii. U.S. Patent Application Number 20070207083, any patent(s) resulting therefrom, and any continuations, continuations-in-part, divisions, re-issues, re-examinations and extensions thereof (“U.S. Patent Applications”).

 

u. Post-Harvest Sanitation of Fruits and Vegetables means the treatment of fruits and vegetables after harvest for the purpose of sanitation, control of post-harvest diseases and moderation of food-borne illnesses.

 

v. Poultry Drinking Water means treatment of water to be ingested solely by poultry in an agricultural/farming environment.

 

w. Proprietary Rights means the following rights related to the Isan System licensed to Licensor by the Ioteq License Agreement:

 

i. All proprietary knowledge, technical information, data, trade secrets, confidential information, computer software and licenses, formulae, designs and drawings, quality control data, processes (whether secret or not), methods, inventions and other similar know-how or rights relating to or arising out of the Patent Rights; and,

 

ii. The trademarks and/or service marks identified in Schedule 2 of the Ioteq License Agreement, and all rights to apply for registration of said trademarks or service marks in the Territory.

 

x. Territory means the United States.

a. In consideration of the license fee and royalties to be paid by Licensee hereunder, and subject to the other terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee as of the Effective Date the exclusive and non-terminable (except as otherwise expressly provided herein) license in the Fields of Use in the Territory to use, exploit, develop and commercialize each and every element of the Intellectual Property, including without limitation (i) to make, have made, use, sell, offer for sale, license, and sublicense Licensed Products, (ii) to export Licensed Products to Canada and Mexico, subject to the Export Limitations set forth below, (iii) to practice Licensed Processes, and (iv) to derive all economic benefit from all activities undertaken by Licensee with respect to the Intellectual Property, subject to the payments to Licensor specified herein. Licensor further grants Licensee the non-exclusive license in the Territory to conduct research, develop and make modifications and enhancements to the Intellectual Property, and to improve the Intellectual Property.

 

i. The rights granted herein are granted only with respect to the Territory, in the Fields of Use, and so long as this Agreement is in force and effect;

 

ii. No right or license is granted or implied to the Licensee or any person claiming through the Licensee under any patent or patent application other than those specifically identified as the Patent Rights, as may be extended or modified from time-to-time during the term hereof;

 

iii. Licensor retains the right to use the Intellectual Property within the Territory for the purpose of exploiting or commercializing the Intellectual Property outside of the Territory, including without limitation the right to maintain a web site hosted in the Territory which describes the Intellectual Property and to manufacture any materials or apparatus for sale or export outside of the Territory. This retained right shall include the right to perform research and development on the Intellectual Property within and without the Territory and within and without the Field of Use at the expense of Licensor;

 

iv. Licensee may export Licensed Products to Canada or Mexico subject to the following conditions and limitations (the “Export Limitations”):

 

v. Licensor reserves to itself all other intellectual property rights (including outside the Field of Use, and outside the Territory) that are not expressly granted to Licensee by this Agreement; and

 

vi. Except as provided in this Agreement, nothing herein will be construed to grant the Licensee the right to register or claim any trademark or trade name confusingly similar in sound, appearance or meaning to those registered by Licensor as expressly disclosed in this Agreement.

 

c. Expansion of Fields of Use. During the Term of this Agreement, and subject to the provisions set forth in this subsection, Licensor hereby grants to Licensee an option (“Option”) to add additional fields of use to the License set forth in this Agreement. Any such addition is subject to the following conditions precedent:

 

i. Licensee Submission to Licensor. Licensee must submit to Licensor, in writing, (i) a definition of the proposed field of use, (ii) a plan for development and commercialization of one or more products in the proposed field of use, and (iii) a budget for the development and commercialization of the products(s) in the proposed field of use.

 

ii. Limitations on Expansion. Licensee shall have no right to expand into a field of use that conflicts with a field of use (i) subject to a Licensor Proposal and for which Licensee has waived its rights as set forth in Section 4(d), or (ii) which conflicts with a field of use licensed to a third party for use in the Territory pursuant to a Third Party Sublicense.

 

iii. Licensor Review and Approval. Licensor shall review the documents submitted by the Licensee, and shall have 30 days to review and respond to Licensee regarding the proposed field of use. Licensor may evaluate the proposal based on the plan for commercialization, the proposed budget, the commercial viability of the project, or any other factor. Licensor must approve any commercially reasonable proposal submitted by Licensee pursuant to this Section.

 

iv. Documentation. Upon such approval by Licensor, Licensor and Licensee shall execute an amendment to this Agreement adding the agreed upon proposed field of use to the License granted herein.

 

d. Isan Name. During the term of this Agreement, Licensor expressly grants permission to Licensee to use the word “Isan” in (i) its corporate name and in the name of any affiliated entities that Licensee may elect to form in connection with this License, (ii) the branding, marketing, sale and sublicensing of the Licensed Processes and/or Licensed Products, and (iii) in all other uses and applications as Licensee may deem to be appropriate in connection with this License. Licensee agrees to remove the word “Isan” from its corporate name upon the termination of this Agreement.

 

e. Research and Development. During the Term, Licensee shall have the non-exclusive right (but not the obligation) to conduct research and development activities, and pursue regulatory approval, clinical trials, and all other work necessary to develop, improve, enhance and commercialize the Licensed Products and Licensed Processes within the Field of Use in the Territory. In connection with such potential efforts by Licensee, Licensee shall consult with Licensor, and Licensor shall make appropriate personnel available for reasonable telephone and other informal consultations, but shall not, among other things, obligate Licensor pe rsonnel to travel, spend a minimum number of hours or engage technical personnel in research or clinical projects, all of which services (“Additional Services”) may be requested by Licensee and shall be subject of further negotiation by the parties including provisions for appropriate consideration therefor.  Further, the Parties shall keep each other informed as to any research and development activities, regulatory approvals, clinical trials, and other work undertaken by the Party or any other party to develop, improve, enhance and/or commercialize the Licensed Products and Licensed Processes.  In the event that either Licensee or Licensor, or the two of them jointly, or any other party, improves or enhances the Licensed Products and/or Licensed Processes in any way, such improvements and enhancements shall be deemed to be part of the Intellectual Property that is licensed to Licensee hereunder, and Licensee shall have the right to utilize, market, sell and otherwise benefit from such improvements and enhancements on the terms set forth herein as if such improvements and enhancements were part of the Intellectual Property on the Effective Date. Nothing in this paragraph limits Licensor’s rights to conduct research and development activities of the Intellectual Property, the Licensed Products, and/or the Licensed Processes, or any of them, or any variations thereof, in any particular Field of Use in any portion of the Territory.

 

f. No Competitive Activities.  During the Term of this Agreement Licensor shall not enter into any licenses, sublicenses or other agreements or arrangements of any kind with any party which allow for, permits or facilitates the commercial use of the Intellectual Property, the Licensed Processes and/or the Licensed Products, or any of them, or any variations thereof, in the Fields of Use in any portion of the Territory. Further, Licensor shall not directly or indirectly through one or more affiliated or related entities, consent to any other activities or arrangements that ar e competitive with Licensee’s commercial use of the Intellectual Property, the Licensed Processes and/or the Licensed Products, or any of them, or which are designed to impair, or which have the effect of impairing, Licensee’s rights as granted in this Agreement. Notwithstanding the above, nothing in this paragraph shall restrict Licensor’s use, activities or attempts to commercialize its CupriDyne Technology. The covenants of Licensor hereunder are material consideration to Licensee in entering into this Agreement and Licensee would not have agreed to the terms hereof in the absence of these promises. Without limiting any other rights and remedies available to Licensee for Licensor’s breach of this Agreement, Licensee shall have the right to obtain injunctive relief as appropriate to enforce this provision. Licensor’s efforts and activities related to research and development of the Intellectual Property in the Territory do not violate this provision.

 

g. Agency Agreement. Concurrent with the execution of this Agreement, the Parties have executed an Agency Agreement whereby Licensor has been granted rights to represent Licensee in the marketing and commercialization of the Intellectual Property. A copy of this agreement is attached hereto as Exhibit E.

 

3. Royalty and Payments.  In consideration of the License granted to Licensee in, Licensee shall pay to Licensor each of the following royalties and payments:

 

a. Initial License Fee. Licensee shall pay to Licensor a onetime, non-refundable fee (the “Initial License Fee”) of $100,000, in good and immediately collectable funds payable in full upon execution of this Agreement. The Initial License Fee is fully earned by Licensor when made, is non-refundable and shall not be credited to Royalties, Sublicense Fees, or any other fees due pursuant to this Agreement.

b. Royalty. Commencing upon the Effective Date and during the Term of this Agreement, Licensee shall pay to Licensor a portion of Licensee’s Net Sales Revenue as an ongoing royalty fee (the “Royalty”) at the rates and for the periods as more particularly specified on Exhibit “A” attached hereto. Each Royalty shall be paid in good and immediately collectible funds, and paid quarterly in arrears within thirty days after the end of each calendar quarter.

c. BioLargo Option. As additional consideration for the License, Isan USA has agreed to grant BioLargo an option to purchase a 20% non-dilutive common stock interest in Isan USA, for a purchase price equal to the basis upon which the founders of Isan USA purchased their shares, not to exceed an aggregate $200,000. These essential terms, and other standard terms and conditions, will be set forth in a written agreement, to be mutually prepared by the Parties.

a. Right to Sublicense. Subject to Licensor’s written approval, such approval to be in Licensor’s sole and absolute discretion, and subject to the conditions and payment of fees set forth in this Section, Licensee may enter into agreements with third parties granting third parties any of the rights granted to Licensee pursuant to this Agreement within the Territory and Field of Use, including without limitation pre-license or product development agreements, or agreements to sublicense the Patent Rights within the Territory or Field of Use (each, a “Sublicense Agreement”). For each such Sublicense Agreement, Licensee shall pay to Licensor a portion of the income generated from such agreement, as set forth below.

 

b. Sublicensing Fees. If Licensee enters into a Sublicense Agreement pursuant to this Section, Licensee shall pay to Licensor a sublicense fee (each, a “Sublicensing Fee”) equal to thirty percent (30%) of any net economic benefit, including sublicense fees, royalties and other payments, less all direct expenses related to the sublicense, received by Licensee, or any affiliate of Licensee, from any party, arising out of or in connection with such Sublicense Agreement, unless a different percent is applicable pursuant to this Section. Each Sublicensing Fee shall be paid in good and immediately collectible funds, and paid quarterly in arrears within thirty days after the end of each calendar quarter. In addition to Sublicensing Fees, Licensor may be entitled to payment of other fees pursuant to the Agency Agreement (attached hereto as Exhibit E).

 

c. Other Fields of Use. Other than this Section, nothing in this Agreement shall prohibit or restrain Licensor from commercializing the Intellectual Property in fields of use that are not subject to the License granted in this Agreement.

 

d. Licensor Commercialization. Should Licensor decide to pursue development and/or commercialization of the Intellectual Property in a field of use not subject to the License granted in this Agreement, Licensor shall so advise Licensee, and provide to Licensee a proposed definition of the field of use, a plan and a budget for such development and/or commercialization (the “Licensor Proposal”). Upon receipt of the Licensor Proposal, Licensee may purchase the license of the proposed field(s) of use for the Territory by (i) giving notice of such intention, in writing, to Licensor within 90 days of receipt of the Licensor& #8217;s Proposal, and (ii) paying to the Licensor an amount equal to one-third of the proposed budget, such payment to be made as expenses are accrued, and subject to increase or decrease based on actual expenditures. Licensee waives all rights to the proposed fields of use, including the rights granted pursuant to the Agreement, if Licensee fails to timely give notice of intent to purchase the license, or fails to pay the purchase price. Upon completion of the budget, and payment of the purchase price, the Parties shall execute a written document amending the terms of this Agreement to include the proposed field of use within the Fields of Use licensed pursuant to this Agreement.

e. Sublicenses. Should Licensor enter into a sublicense agreement of the Intellectual Property in the Territory which are not in the Licensee's Fields of Use with a third party (each, a “Third Party Sublicense”), which Licensor may do in its sole and absolute discretion, and which Licensor shall have no obligation to do, Licensor shall pay to Licensee fifteen percent (15%) of all royalties received pursuant to the Third Party Sublicense agreement.

 

5. Minimum Payments. During the Term, and notwithstanding the calculation of the Royalty fees and Sublicensing fees due pursuant to this Agreement, Licensee shall pay to Licensor a minimum amount (each, a “Minimum Payment”) of: $20,000 per month during the first twenty-four (24) months following the Effective Date (payable in quarterly payments of $60,000), and $33,333.33 per month thereafter until the expiration of the Term (payable in quarterly payments of $100,000). Each such Minimum Payment shall be paid on the last day of each calendar quarter, in arrears, beginning June 30, 2010.

 

a. Licensee’s failure to pay within fifteen (15) business days of the due date the Minimum Payment due for any two (2) consecutive quarters (a “Minimum Payment Default”) shall automatically modify, without further notice or action on the part of Licensor, the terms of the License such that the License shall no longer provide Licensee the “exclusive” rights granted hereunder.  Any such Minimum Payment Default shall not relieve Licensee of its obligation to pay in full the Minimum Payment or any other fees or royalties created herein, which shall remain due and payable to Licensor.

 

6. License Term; Options to Extend Term; Early Termination. Subject to early termination, the term of this Agreement (the “Term”) will expire on the earlier of (i) the expiration of the last to expire of the Patent Rights, or (ii) on the tenth (10th) anniversary of the Effective Date; provided that for so long as the Patent Rights, or any of them, remain valid, and provided further that Licensee does not have any uncured Events of Default or Minimum Payment Defaults as of the date of each such extension notice, Licensee shall have the right, by written notice to Licensor, to extend the Term for six (6) additional perio ds of five (5) years each under the terms and conditions defined herein. Notwithstanding anything to the contrary contained elsewhere in this Agreement, if at any time during the Term Licensee determines that continuation of this License will not be, or is no longer, economically viable, Licensee shall have the right to terminate this Agreement upon not less than ninety (90) days advance written notice to Licensor, in which case Licensee shall be responsible for the Royalty fee, Sublicense Fee, or Minimum Payment, as applicable, otherwise due hereunder through the expiration of the Term, with such amounts being prorated as appropriate for any partial quarter during which the Term ends, and Licensee shall have no further obligation hereunder.  Further, and notwithstanding anything to the contrary contained elsewhere in this Agreement, upon termination of this Agreement the Parties shall remain entitled to receive their respective compensation due hereunder through the date of such termination, wheth er or not such payments have yet been made or received, as applicable, and this Agreement shall remain in effect and be enforceable following such termination as necessary to ensure that any such unpaid compensation is received and paid as required hereunder.

 

7. Reporting.

 

a. Books and Records.  Licensee shall keep full and accurate books of account using generally accepted accounting principles (GAAP) showing the amount of Net Sales Revenue and resulting Royalties and Sublicense Fees due pursuant to this Agreement. These books of account shall be kept at Licensee’s place of business and shall be subject to audit.

 

b. Royalty Report. Not later than thirty (30) days after the beginning of each calendar quarter of each year (a “Reporting Period”), Licensee shall deliver to Licensor a true and accurate report (a “Royalty Report”), giving particulars of the business conducted by Licensee during the preceding Reporting Period as are relevant to an accounting for Royalties and Sublicense Fees due under this Agreement. The Royalty Report shall include the following at a minimum: (i) the quantity of Licensed Products sold by Licensee; (ii) the revenues arising from sales of Licensed Products; (iii) the calculated Royalty due to Licensor; (iv) revenues generated by any Sublicense Agreements, identifying the sublicensee, the amount, and the basis of the calculations; and (v) any other revenues received from third parties.  Simultaneously with the delivery of each Royalty Report, Licensee shall pay to Licensor the applicable Royalty and Sublicense Fees due, as set forth in Paragraph 3 above.

 

c. Certified Net Sales Revenue.  Not later than sixty (60) days following the end of each fiscal year of Licensee, Licensee agrees to provide Licensor, at Licensee’s sole expense, a report from an independent certified public accountant which attests to the accuracy of Licensee’s information, computations and the Royalty and Sublicense Fee due for each Reporting Period during the previous fiscal year.

 

d. Licensor’s Audit Rights. Licensor shall be entitled, upon not less than five (5) business days written notice to Licensee, and during business hours at Licensee’s office or such other place as Licensee shall designate within the state of California, to inspect and examine those books and records of Licensee relating to the determination of Royalty or Sublicense Fees set forth in any Royalty Report. The inspection of Licensee’s records shall be performed by a licensed public accounting firm (a “Qualified Firm”). The examination must be conducted within thirty (30) days of such books and records bein g made available to Licensor (“Examination Period”). The Qualified Firm shall prepare a report indicating the results of the review (the “Audit Report”) and the Qualified Firm shall provide the Audit Report to both Licensor and Licensee. If the Audit Report discloses that the amount of Royalties or Sublicense Fees reported to Licensor was less than the actual Royalties or Sublicense Fees owed, Licensee shall pay to Licensor the deficiency, unless Licensee disputes the Report within thirty (30) days after the receipt of the Report. Conversely, if the Audit Report discloses that the amount of Royalties or Sublicense Fees reported and paid to Licensor was greater than the actual Royalty fees owed, Licensor shall refund to Licensee the overpayment (and Licensee shall be entitled to offset such overpayment against the next Royalty fees due), unless Licensor disputes the Report within thirty (30) days after the receipt of the Report. If either Party disputes the Report within this thirty (3 0) day period, Licensee and Licensor shall agree upon another accounting firm to review and verify the Royalties and Sublicense Fees, and provide the results thereof to Licensee and Licensor (the “Reconciliation Audit”) and the determination as set forth in the Reconciliation Audit shall be binding upon Licensee and Licensor. All costs and expenses of the auditor generating the Report shall be paid by Licensor unless the audit shows that Licensee understated Royalties and Sublicense Fees in the Royalty Report by more than five percent (5%), in which case Licensee shall pay the costs and expenses of such audit. Notwithstanding the foregoing, in the event the Reconciliation Audit is performed, Licensee and Licensor shall each pay one-half (1/2) of the cost of the Reconciliation Audit.  The exercise by Licensor of its audit rights hereunder shall not relieve Lice nsee of its obligations to pay prior to the request for and inspection and examination of Licensee’s books and records or permit Licensor the right to audit any other sums with the exception of the amounts set forth in this Royalty Report.  If Licensor does not elect to exercise its rights to audit during the Audit Period, and/or does not elect to examine the books and records during the Examination Period, then Licensee’s Royalty Report shall conclusively be deemed to be correct and Licensor shall be bound by Licensee's determination.  Additionally, Licensor agrees and acknowledges that the audit right as set forth herein and the review of books and records shall be confidential and, with the exception of Licensor’s auditors, Licensor may not disclose or discuss the audit or the results of the audit to any other parties.

 

8. Intellectual Property Ownership; Related Actions.

 

a. Improvements. Ownership of all inventions and discoveries relating to, deriving from, or enhancing or improving upon any technology or claims embodied in any of the Patent Rights, the Proprietary Rights, the Licensed Products or the Licensed Processes, whether discovered or developed in connection with any of the research and development activities conducted hereunder, or otherwise (each, a “New Invention”), shall remain with and become the sole property of Licensor, subject to the rights granted to Licensee by the License. Licensee shall cause each and every one of its officers and employees having access to, conta ct with, or otherwise employed in any manner with the Intellectual Property, to keep such information confidential and to refrain from disclosing same except as is necessary or appropriate in connection with Licensee's business activities contemplated by this Agreement. Licensee shall assist Licensor in obtaining any new intellectual property rights in any such New Invention by causing its employees and officers to sign and execute such legal documents as Licensor determines is necessary for protection of any such New Inventions.

 

b. Defense of Intellectual Property. Licensor shall be obligated to defend any actions or claims brought by third parties challenging (i) Licensor’s right and authority to license the Patent Rights and Intellectual Property, and (ii) Licensee’s right to utilize the Intellectual Property on the terms contained herein, except where Licensee alters commercial technology and such alteration causes infringement. Licensor shall have the sole discretion and control with respect to any defense against any litigation against the validity of the Patent Rights. Licensor shall bear all expenses of all actions that it takes pursuan t to this Section, including without limitation attorneys’ fees. Licensee shall have the right to be kept informed of the status and progress of all such actions, including Licensor providing Licensee with copies of all court filings and otherwise meeting with Licensee from time to time as Licensee may request to freely exchange information related to such matters.

 

c. Third Party Infringement. Licensor shall have exclusive right, sole discretion and absolute authority to assert Patent Rights against any third party (each, a “Third Party Infringement Action”), which Licensor shall have no obligation to do, and the sole and exclusive right to select counsel and control and direct the assertion of all rights and the prosecution of all such actions brought by Licensor. If Licensee desires to institute a Third Party Infringement Action with respect to any infringement or any attempted infringement of any part of the Intellectual Property within the Territory or any Field of Use (which Licensee shall have no obligation to do), Licensee may do so with Licensor’s prior written consent, which such consent shall not be unreasonably withheld. In any such action initiated by Licensee, (i) Licensee shall bear all the expenses of such actions including without limitation attorneys’ fees, (ii) Licensor shall reasonably cooperate with Licensee (including executing reasonably necessary documentation) in order to assist Licensee in such efforts so that Licensee can enjoy the benefits of this Agreement, and (iii) If a party to such action challenges the validity of the Intellectual Property Rights, Licensor shall have the exclusive right to control and direct the assertion of such defense of the Intellectual Property, including the selection of counsel.

 

d. If Licensee takes legal action to protect or preserve the Intellectual Property that Licensor is obligated to undertake but which Licensor has refused to undertake or has not adequately undertaken, then, in addition to all other remedies available to Licensee as a result thereof, Licensee shall be permitted to offset against the next sums due to Licensor from Licensee hereunder the actual costs incurred by Licensee in the taking of such legal action, including, without limitation, actual attorneys fees, court and litigation costs, expert witness fees and costs of appeal, if any.  Licensor shall have the right to be kept informed of the status and progress of all such actions instit uted by Licensee pursuant to this Section.

 

e. Any recoveries or settlement fees received from suits or settlements involving an action initiated pursuant to this section or agreed to shall be paid: (i) first, to Party that incurred the cost of such action as reimbursement for the expenses of such action, including without limitation attorneys’ fees; and (ii) the balance (if any) to the Party that initiated such action in accordance with this section, for such party’s own use and benefit (provided if both Licensor and Licensee are pursuing their respective claims in such an action and recovery is not separately awarded to each of them, such recovery shall, in the absence of an allocation agreed to by the Parties or determined by a court or arbiter, be allocated between the Parties on an equitable basis as appropriate in order to compensate each of them for their respective and proportionate loss).

 

9. Marking of Patent Rights. All Licensed Products, including those produced pursuant to the rights granted in any Sublicense Agreement, shall bear trademark(s) designated by Licensor, and appropriate patent marking, such as “Patent Pending” or reference to specific issued U.S. Patents covering the Licensed Products, pursuant to and in conformance with the guidelines issued from time to time by Licensor. Licensee shall consult with and obtain the written approval of Licensor with respect to any such patent marking. The Parties shall impose the patent marking obligations of this Section on all Sublicense Agreements.

 

10. Insurance Requirements. Licensee shall maintain, at Licensee’s expense, during the period that any Licensed Product is made, used, sold or otherwise made available to others pursuant to this Agreement, Comprehensive Liability Insurance, including Product Liability Insurance, with a reputable and financially secure insurance carrier(s) to cover the activities of Licensee and its sublicensees, if any, contemplated by this Agreement for minimum limits of two million dollars ($2,000,000.00) per occurrence. Such insurance shall name Licensor as an additional insured.  Licensee shall furnish a Certificate of Insuranc e, upon request, evidencing such coverage with thirty (30) days of written notice of cancellation or material change to Licensor.  Licensee’s insurance shall be written to cover claims incurred, discovered, manifested, or made during the Term, or after the expiration, of this Agreement.  Licensee shall at all times comply, through insurance or self-insurance, with all statutory workers’ compensation and employers’ liability requirements covering any and all employees with respect to activities performed under this Agreement. All such liability insurance policies shall be written as primary policies not contributing with and not in excess of coverage which Licensor may carry.

11. Events of Default and Termination.

 

a. This Agreement shall terminate automatically upon the earliest to occur of the following:

 

i. Licensee voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof;

 

ii. The expiration of the Term (as may be extended from time-to-time); or

 

iii. The termination of this Agreement due to an Event of Default.

 

b. The following shall be considered an “Event of Default” by Licensee:

 

i. Licensee’s third (3rd) failure to pay the Minimum Payment (to the extent applicable) due within 15 business days of the due date;

 

ii. Without regard to the Minimum Payment due for a particular Reporting Period, Licensee’s failure to pay to Licensor during a particular Reporting Period an amount equal to at least the sum of the Royalty fees due for such Reporting Period within fifteen (15) business days of the due date;

 

iii. Licensee’s failure to deliver to Licensor the Royalty Report due for a Reporting Period within 15 business days of the due date;

 

iv. Licensee’s assignment of this Agreement in violation of the terms set forth;

 

v. Licensee’s failure to maintain appropriate insurance pursuant to the terms set forth; and,

 

vi. Licensee’s material breach of any other provision of this Agreement.

 

c. The following shall be considered an “Event of Default” by Licensor:

 

i. Licensor’s grant of a license of the Intellectual Property to a third party in the Field of Use in the Territory during the Term;

 

ii. Licensor’s loss of Patent Rights under any litigation proceeding;

 

iii. Licensor’s failure to maintain appropriate insurance (including, without limitation, insurance required by the Ioteq License Agreement) pertaining to the Territory;

 

iv. Licensor’s default or breach of the provisions of or in connection with the Ioteq License Agreement;

 

v. Licensor’s failure to pay any necessary fees for the continuation of the Patent Rights, or any patents granted pursuant to the U.S. Patent Applications related to the Intellectual Property;

 

vi. Licensor voluntarily files a petition, or has a involuntary petition filed against it, under the Bankruptcy Act; or enters into any voluntary assignment for the benefit of its creditors; or appoints, or has appointed on its behalf, a receiver, liquidator or trustee of or with respect to substantially all of its property or assets, which petition, assignment or appointment is not dismissed, terminated or resolved within ninety (90) days following the commencement thereof; and

 

vii. Licensor’s material breach of any other provision of this Agreement.

 

d. Upon an Event of Default by either Party, the non-breaching Party may, at its sole option, provide written notice to the breaching Party of such Event of Default (a “Default Notice”), which Default Notice shall specify in reasonable detail the nature of the alleged Event of Default and the actions that must be reasonably taken by the breaching Party to cure same.  The breaching Party shall have a period of fifteen (15) business days’ following receipt of the Default Notice (the “Grace Period”) to cure such Event of Default, and no actions shall be taken, or remedies sought or obtained, by the non-breaching Party as a result of such Event of Default unl ess the Grace Period has expired without such Event of Default having been cured.  Notwithstanding the foregoing, if the Event of Default is of a nature that cannot be reasonably cured within fifteen (15) business days, then provided the defaulting Party commences such cure within said fifteen (15) business day period and thereafter diligently pursues such cure, the Grace Period shall be extended as reasonably necessary to allow such cure, provided that the Grace Period shall in no event be longer than thirty (30) days following receipt of the Default Notice.

 

e. In the case of an Event of Default by Licensee which is not cured within the applicable Grace Period, Licensor shall have the right, as its sole recourse and remedy against Licensee (but without limiting the indemnity provisions), to terminate this Agreement by written notice to Licensee and to recover all Royalty fees (including the Minimum Payments, if applicable) due through the termination hereof, and Licensor shall be entitled to enforce the termination provisions.

 

f. In the case of an Event of Default by Licensor which is not cured within the applicable Grace Period, Licensee shall have the right, as its sole recourse and remedies against Licensor (but without limiting the indemnity provisions), to (i) terminate this Agreement by written notice to Licensor and to recover all damages incurred by Licensee as result thereof, (ii) keep this Agreement in effect in accordance with its terms, recover damages incurred by Licensee as a result of Licensor's default, and seek and obtain injunctive and other equitable relief (including specific performance) as appropriate in order for Licensee to receive the benefits of this Agreement, (iii) cure the Licensor’ s default of the Ioteq License Agreement, and offset Royalties due to Licensor in like amount, and/or (iv) obtain an assignment from Licensor of the rights and benefits of the Ioteq License Agreement. The foregoing remedies shall, as applicable and appropriate, be cumulative and not exclusive.

 

12. Obligations and Rights Upon Termination.

 

a. Upon termination of this Agreement for any reason, Licensee shall:

 

i. Promptly return to Licensor all technical writings, business writings, materials, samples, data, drafts, proposals, sales information, business information and all other materials transferred and created during the term of this Agreement, retaining a confidential copy of this Agreement (and such materials shall be returned on an “AS-IS” basis without any representation or warranty as to the accuracy or usefulness thereof);

 

ii. Immediately stop all business, sales, marketing, publication, public disclosure, research and development on technology within the Patent Rights;

 

iii. Immediately terminate or assign to Licensor on an “AS-IS” basis without any representation or warranty all of Licensee’s right, title and interest in, to or under any agreements pursuant to which a third party is given rights relating to Licensed Products, the Licensed Processes or Patent Rights and Sublicense Agreements; and,

 

iv. Notwithstanding anything to the contrary contained elsewhere in this Agreement, have the right during the ninety (90) day period following termination of this Agreement to sell all remaining inventory owned or controlled by Licensee associated with the Intellectual Property in accordance with the terms of this Agreement as if this Agreement had not been terminated, with all proceeds thereof being deemed Net Sales Revenue and with Licensor being entitled to a Royalty fee therein in accordance with the terms of this Agreement.

 

b. Upon termination of this Agreement, Licensor shall have no obligation to refund any payment or fee made to it or received by it under any provision of this Agreement, regardless of purpose.

 

13. Representations, Warranties and Covenants of Licensor.  Licensor represents, warrants and covenants to Licensee as follows:

 

a. Licensor is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, is qualified to do business in all jurisdictions to which this License applies, and has all requisite power and authority to own, lease and operate its property and to carry on its business as now being conducted.

 

b. Licensor has full power and authority to enter into, execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly authorized by all necessary corporate action of Licensor. This Agreement has been duly executed and delivered by Licensor and, assuming this Agreement is duly executed and delivered by Licensee, constitutes a valid and legally binding obligation of Licensor enforceable against Licensor in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally, or the availability of equitable remedies.

 

c. The execution and delivery by Licensor of this Agreement do not, and compliance by Licensor with the provisions of this Agreement will not, conflict with or result in a breach or default under any of the terms, conditions or provisions of any contract, agreement, arrangement or order of court to which Licensor is a party or otherwise bound or violate any provision of law to which Licensor is subject.

 

d. Licensor has obtained all authorizations, registrations, approvals and permits required by any governmental body or under any governmental legislation in connection with Licensor's entry into, and performance of, this Agreement.

 

e. The Ioteq Master License Agreement and the Ioteq License Agreement are valid and in full force and effect and there are no defaults by any party thereunder. The copies thereof which are attached hereto are true, complete and accurate copies of the originals. The Ioteq Master License Agreement and the Ioteq License Agreement are the only agreements and arrangements in place governing the use of the Intellectual Property in the Territory and there are no parties except as disclosed in those agreements that have any rights to the Intellectual Property or the use or benefits thereof in the Territory.

 

f. The Patent Rights are properly filed with the US Patent Office and are valid and enforceable. Licensor has the exclusive good, valid and marketable title to the Intellectual Property sufficient to convey and grant the License hereunder and to convey the rights and benefits of the Intellectual Property to Licensee on the terms contained herein without the need for further consent or approval of any party.

 

g. There are no actual, outstanding or threatened claims against, claims of infringement with respect to, or challenges to, the Patent Rights or the right of Licensor to use or to license the Intellectual Property to Licensee by any third parties, and to the best knowledge of Licensor there are no facts or circumstances existing as of the Effective Date that would give rise to any such claim or challenge in the future.

 

h. The exercise by Licensee of the rights granted hereunder will not infringe upon any intellectual property rights of any person, including, without limitation, patent rights, trademarks or service marks, nor give rise to the obligation of Licensee to pay any sums to any third party.

 

i. There is no pending or, to the best knowledge of Licensor, threatened action (or basis for any action) to which Licensor is a party or involving any of the Intellectual Property or which could materially affect Licensor's ability to execute and deliver this Agreement, to perform its obligations contemplated hereby, or which would have a material effect upon Licensee's ability to enjoy and retain the benefits of this Agreement during the Term.

 

j. Licensor shall immediately notify Licensee in writing as to any circumstance that could result in the impairment, invalidation or termination of the Patent Rights or the ability of Licensee to utilize the Intellectual Property as contemplated in this Agreement, including, without limitation, any claims that the Intellectual Property or any use thereof infringes upon the intellectual property rights of others.  Licensor shall not voluntary undertake, consent to, or permit any actions or course of conduct by any party that would result in the impairment, invalidation or termination of the Intellectual Property rights licensed to Licensee hereunder.

 

k. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, LICENSOR, ITS  DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, CONSULTANTS AND AFFILIATES MAKE NO REPRESENTATIONS AND EXTEND NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND VALIDITY OF THE CLAIMS OF ANY PATENTS ON THE TECHNOLOGY ISSUED OR PENDING, OR FREEDOM OF A PRODUCT THAT EMBODIES TECHNOLOGY FROM INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF OTHERS, THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE. IN NO EVENT SHALL LICENSOR, ITS TRUSTEES, DIRECTORS, OFFICERS, EMPLOYEES, AND AFFILIATES BE L IABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ECONOMIC DAMAGE OR INJURY TO PROPERTY AND LOST PROFITS, WHETHER LICENSOR SHALL BE ADVISED, SHALL HAVE OTHER REASON TO KNOW, OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. LICENSOR REPRESENTS AND WARRANTS IN RESPECT TO THE PATENT RIGHTS THAT IT HAS LEGAL RIGHT TO EXTEND THE RIGHTS TO LICENSEE, AND THAT IT HAS NOT MADE AND WILL NOT MAKE ANY COMMITMENTS TO OTHERS INCONSISTENT WITH OR IN DEROGATION OF SUCH RIGHTS.

 

14. Representations and Warranties of Licensee. Licensee represents and warrants to Licensor as follows:

 

a. Licensor is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has all requisite power and authority to own, lease and operate its property and to carry on its business as now being conducted.

 

b. Licensee has full power and authority to enter into, execute and deliver this Agreement and perform its obligations hereunder. This Agreement has been duly authorized by all necessary corporate action of Licensee. This Agreement has been duly executed and delivered by Licensee and, assuming this Agreement is duly executed and delivered by Licensor, constitutes a valid and legally binding obligation of Licensee enforceable against Licensee in accordance with its terms, subject to the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws relating to or affecting creditors’ rights generally, or the availability of equitable remedies.

 

c. The execution and delivery by Licensee of this Agreement do not, and compliance by Licensee with the provisions of this Agreement will not, conflict with or result in a breach or default under any of the terms, conditions or provisions of any contract, agreement, arrangement or order of court to which Licensee is a party or otherwise bound.

 

15. Confidentiality. From time to time, so long as this Agreement should be in force or effect, Licensor and Licensee shall execute such non-disclosure agreements as the other Party may reasonably request from time-to-time in a form and substance reasonably desired by the requesting Party and in all cases on terms consistent with this Agreement.  Notwithstanding anything contained in this Agreement to the contrary, Licensee shall not be liable for, and shall not be required to sign a non-disclosure agreement that prohibits or restricts, a disclosure of proprietary information of Licensor if the information so disclosed: (i) was in the public domain at the time of disclosure without breach of this Agreement; (ii) was known to or contained in the records of Licensee from a source other than Licensor at the time of disclosure by Licensor to Licensee and can be so demonstrated; (iii) was independently developed and is so demonstrated promptly upon receipt of the documentation and technology by Licensee; (iv) becomes known to Licensee from a source other than Licensor without breach of this Agreement by Licensee and can be so demonstrated; (v) must be disclosed pursuant to a contract or subcontract with a governmental agency in order to obtain/retain a procurement contract; (vi) was disclosed pursuant to court order, subpoena or as otherwise compelled by law; or (vii) was otherwise necessary or appropriate in connection with the furthering of Licensee’s business activities permitted by this License.

 

16. Indemnification.

 

a. Licensor Indemnification. Licensor shall defend, indemnify (with counsel reasonably acceptable to Licensee) and hold Licensee harmless from and against any damages, claims, lawsuits, causes of action, liabilities, costs, obligations and expenses (including reasonable attorneys’ fees and court costs) arising solely out of any claim or allegation (whether or not proven) by any third party that Licensee’s use of the Intellectual Property pursuant to this Agreement, including the marketing, sale and/or distribution of the Licensed Products and the Licensed Processes in any Field of Use in the Territory, infringes upon o r violates a valid intellectual property right or represents a misappropriation of a trade secret of a third party; provided, however, that: (i) Licensee shall have promptly provided Licensor with written notice thereof and reasonable cooperation, information, and assistance in connection therewith; (ii) Licensor shall have sole control and authority with respect to the defense, settlement, or compromise thereof (provided in all cases Licensor shall act reasonably in good faith and in the best interests of Licensee, and Licensor shall not take any actions or enter into any settlements or other arrangements that impose any obligations or liabilities, financial or otherwise, upon Licensee without Licensee's prior written consent); (iii) this indemnity shall not apply if such damage, liability, cost or expense results solely from, or is caused solely by, an intentional tortuous act or the gross negligence of Licensee; and (iv) this indemnity shall not apply if such damage, liability, cost or expense results solely from any Licensee modifications to the Intellectual Property, Licensed Products, and/or Licensed Processes, unless such modifications have received written approval by Licensor. Licensee shall have the right to be kept informed of the status and progress of all such actions undertaken by Licensor pursuant to this Section.

b. Licensee Indemnification. Licensee shall indemnify, save and hold harmless  Licensor and each of its officers, directors, employees, agents and affiliates, and each of their successors and assigns (collectively, the “Licensor Indemnified Parties”) from and against any and all costs, losses, claims, liabilities, fines, penalties, consequential damages (other than lost profits) whatsoever, including but not limited to death or injury to person or damage to property, and expenses (including interest which may be imposed in connection therewith, court costs and actual attorneys’ and expert witness fees a nd disbursements of counsel) (collectively, “Damages”) incurred in connection with, arising directly or indirectly out of, resulting from or incident to (i) Licensee’s exercise of any of its rights or conduct of any activities granted hereunder, (ii) the commercial sale and/or use, clinical or otherwise, of Patent Rights, Licensed Products or Licensed Processes by Licensee, its sublicensees, or any customers of any of them in any manner whatsoever; (iii) the performance, non-performance, or harmful effects of the sale, manufacture, or use of the Licensed Products, including without limitation product liability claims; or (iv) third party patent infringement claims stemming from Licensee’s use of any Patent Rights, Licensed Products or Licensed Processes.

 

c. If a claim for Damages (a “Claim”) is to be made by a Party entitled to indemnification hereunder (an “Indemnified Party”) against the indemnifying Party (the “Indemnifying Party”), the Indemnified Party shall give written notice (a “Claim Notice”) to the Indemnifying Party, which notice shall specify whether the Claim arises as a result of a claim by a person against the Indemnified Party (a “Third Party Claim”) or whether the Claim does not so arise (a “Direct Claim”), and shall also specify (to the extent that the information is available) the factual basis for the Claim and the amount of the Damages, if known. & #160;If the Claim is a Third Party Claim, the Indemnified Party shall provide the Claim Notice as soon as practicable after such Party becomes aware of any fact, condition or event which may give rise to Damages for which indemnification may be sought under this Section.  If any lawsuit or enforcement action governed by this indemnity is filed against any Indemnified Party, written notice thereof shall be given to the Indemnifying Party as promptly as practicable (and in any event within 15 calendar days after the service of the citation or summons). The failure of any Indemnified Party to give timely notice hereunder shall not affect rights to indemnification hereunder, except to the extent that the Indemnifying Party has been damaged by such failure.

 

17. General Provisions.

 

a. Notices. All Notices, requests and other communications that a Party is required or elects to deliver shall be in writing and shall be delivered personally, or by facsimile, or by a recognized overnight courier service, to the other Party at its address set forth below or to such other address as such Party may designate by notice given pursuant to this Section:

All such notices, requests and other communications will: (i) if delivered personally to the address as provided in this Section, be deemed given upon delivery; (ii) if delivered by facsimile transmission to the facsimile number as provided for in this Section, be deemed given upon facsimile confirmation; and (iii) if delivered by messenger or courier to the address as provided in this Section, be deemed given on the earlier of the first business day following the date sent by such messenger or courier upon receipt (in each case regardless of whether such notice, request or other communication is received by any other Person to whom a copy of such notice is to be delivered pursuant to this Section. A Party from time to time may change its address, facsimile number or other information for the purpose of notices to that Party by giving notice specifying such change to the other Parties hereto.

 

b. Publicity. Neither Party shall issue any public announcement regarding this Agreement, or which contains the name of the other Party, without giving prior reasonable notice to the other Party, and receiving written approval thereon which shall not be unreasonably withheld or delayed; provided, however, that (i) Licensor may withhold its approval in its sole and absolute discretion and (ii) written approval from Licensee shall not be required for any disclosures that are required or which counsel advises Licensor are required by applicable law, including without limitation Federal securities laws, in which instance, Licensor sha ll so notify Licensee as reasonably promptly as commercially possible.

 

c. Entire Agreement. This Agreement contains the sole and entire agreement and understanding of the Parties with respect to the entire subject matter of this Agreement, and any and all prior discussions, negotiations, commitments and understandings, whether oral or otherwise, related to the subject matter of this Agreement are hereby merged herein and shall be of no further force or effect.

 

d. Waiver and Amendment. No provision of this Agreement may be waived unless in writing signed by all the Parties to this Agreement, and waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision. This Agreement may be amended only by a written agreement executed by all the Parties to this Agreement.

 

e. Governing Law. This Agreement has been made and entered into in the State of California and shall be construed in accordance with the laws of the State of California without giving effect to the principles of conflicts of law thereof, and except to the extent superseded by the laws of the United States.

 

f. Severability. Whenever possible each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be or become prohibited or invalid under applicable law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.

 

g. Captions. The various captions of this Agreement are for reference only and shall not be considered or referred to in resolving questions of interpretation of this Agreement.

 

h. Costs and Attorneys Fees. If any action, suit, arbitration or other proceeding is instituted to remedy, prevent or obtain relief from a default in the performance by any Party to this Agreement of its obligations under this Agreement, the prevailing Party shall recover all of such Party’s reasonable attorneys’ fees incurred in each and every such action, suit, arbitration or other proceeding, including any and all appeals or petitions therefrom. 

 

i. Rights Cumulative.  Except as expressly provided to the contrary elsewhere in this Agreement, no right granted to the Parties under this Agreement on default or breach is intended to be in full or complete satisfaction of any damages arising out of such default or breach, and each and every right under this Agreement, or under any other document or instrument delivered hereunder, or allowed by law or equity, shall be cumulative and may be exercised from time to time.

 

j. Judicial Interpretation. Should any provision of this Agreement require judicial interpretation, it is agreed that a court interpreting or construing the same shall not apply a presumption that the terms hereof shall be more strictly construed against any person by reason of the rule of construction that a document is to be construed more strictly against the person who itself or through its agent prepared the same, it being agreed that all Parties have participated in the preparation of this Agreement.

 

k. Force Majeure. If any Party to this Agreement is delayed in the performance of any of its obligations under this Agreement or is prevented from performing any such obligations due to causes or events beyond its control (financial inability excepted), including, without limitation, acts of God, fire, flood, war, terrorism, earthquake, strike or other labor problem, injunction or other legal restraint, present or future law, governmental order, rule or regulation, then such delay or nonperformance shall be excused and the time for performance thereof shall be extended to include the period of such delay or nonperformance.< /div>