GreenD Plus Nano Cavitation Reactor Skid System CONFIDENTIAL MARKETING& TECHNOLOGY LICENSEAGREEMENT Between CAVITATIONTECHNOLOGIES, INC. and n.v.DESMET BALLESTRA GROUP s.a., January15, 2010 TABLEOF CONTENTS

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6.01  Ownership of Property.  (a) All patents, patent applications, copyrights, trade secrets and other intellectual property rights in or relating to the System, any Reactor Skid Unit or the Licensed Technology, in all languages, formats and media throughout the world, are and shall remain the sole and exclusive property of Licensor, including without limitation, (1) the Licensor Primary Patents, Licensor Patent Rights, and Licensor Technical Information, and (2) all Inventions or Improvements except as provided under 5.02 (b) hereabove , and (3) each Process Design Package and any detailed engineering design and any document contained therein or included as a part thereof, and any drawings, schematics, blueprints, maps and other documentation, whether in print, digital or other form, showing the design, configuration and/or engineering of any Reactor Skid Unit (including the Pilot Plant) or any Nano-Cavitation Reactor, in each case prepared or developed individually by Licensor or jointly by Licensor and  Licensee, or any of their respective owners, employees, partners, representatives or contractors; however, it is expressly acknowledged that any document and any engineering contained therein, prepared and/or developed by Licensee to integrate the System, any Reactor Skid Unit or the Licensed Technology into a specific Site User’s Vegetable Oil process,  is the sole property of Licensee.  and (4) Licensor’s software (including source code) included within the Licensed Technology or any Unit, together with the performance and operating data generated by any Unit (including the Pilot Plant) or any Nano-Cavitation Reactor.

(b)  Nothing in this Agreement shall be construed or interpreted as assigning or transferring any portion or aspect of Licensor’s ownership rights in any of the properties specified or described herein.

6.02  Additional Patent Filings.  (a) In the event that Licensee receives orders for Reactor Skid Units that will be delivered, installed and operated in countries other than the United States, Licensee shall promptly consult with Licensor to determine whether Licensor has filed patent applications or obtained patents with respect to the Licensed Technology that will provide adequate protection to Licensor in such country and jurisdiction.  Licensee shall, at its sole cost, cooperate with and assist Licensor in preparing, filing and prosecuting any patents or patent applications that Licensor, in its sole discretion, determines must be filed and prosecuted in foreign jurisdictions in order to protect its intellectual property.  Licensee shall pay or contribute fifty percent (50%) of the costs incurred or to be incurred by Licensor in preparing, filing and prosecuting any such patents or patent applications where needed and with any governmental authority having jurisdiction therein, including without limitation any associated filing fees, costs and attorneys’ fees.

(b) Upon Licensor’s request from time to time, Licensee shall either advance funds to Licensor, or reimburse Licensor for Licensee’s share of fees and costs incurred in filing, prosecuting and maintaining patents and patent applications in foreign jurisdictions as provided herein.

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8.01  Non-Transferability.  During the term of this Agreement, neither Party shall be entitled to assign, convey, sell or otherwise transfer this Agreement or any interest therein to any Person without the prior written consent of the other Party.  Any attempted conveyance, transfer, sale, encumbrance or assignment of this Agreement, either in whole or in part, by either Party shall be null and void.

8.02  Transfer to New Site User.  Site User may not transfer any Reactor Skid Unit to any other Person without Licensor’s prior written approval.  If a transfer is approved in writing by Licensor, Licensee shall, upon receiving Licensor’s authorization to do so, issue and execute a Site User License with the new Site User.  Licensee shall promptly notify Licensor of any such transfer request in advance and shall deliver to Licensor a true and correct copy of each new Site User License executed by Licensee and any such Site User.

9.01 Term and Duration.  (a) Subject to the provisions of Section 9.02, this Agreement shall become effective as of the Effective Date and shall continue in full force and effect for an initial period of three (3) years from and after the Effective Date (the “Primary Term”).  At the end of the Primary Term, this Agreement shall automatically be extended for additional periods of three (3) years each (each a “Renewal Term”) provided Licensee fulfills the Minimum Annual Units for each year of the term as specified in 9.01 (b).

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(c)  Notwithstanding anything to the contrary herein, after the Primary Term and during any Renewal Term, either Party shall be entitled to terminate this Agreement upon at least six (6) months prior written notice to the other Party.

9.02  Termination for Material Default.  (a) Upon Licensor’s notice to Licensee of any material default under this Agreement, the Parties shall, within thirty (30) days, attempt to resolve any differences between them and to cure any such default that exists or may exist under this Agreement.  If a material default hereunder continues for a period of ninety (90) days following Licensor’s notice of such default to Licensee without being cured or corrected, Licensor shall have the right to terminate this Agreement upon notice to Licensee.

(b) Termination of this Agreement hereunder shall not preclude any Party from pursuing or enforcing any claim it may have for damages or otherwise on account of any default by any Party.

9.03 Effect of Expiration/Termination.  The expiration or termination of this Agreement under this Article IX or otherwise shall not (1) relieve Licensee of its obligations to account for and pay all amounts due Licensor under this Agreement, (2) affect any rights granted to Site Users that are in full compliance with the terms of Site User Licenses and any corresponding equipment leases that remain in effect as of the date of any such termination.

10.01 Confidentiality and Non-Disclosure.  Each of the Parties agrees that any Confidential Information developed or acquired by either Party or disclosed or made available to a Party (or its Affiliates) by the other Party at any time prior to or during the term of this Agreement, shall be kept strictly confidential and protected in accordance with the Secrecy & Non-Disclosure Agreement.

11.01  Licensor’s Name, Marks and Logos.  (a) During the term of this Agreement, subject to Section 11.01(b), Licensee shall be entitled to use Licensor’s name, marks and logos in materials prepared or used by Licensee to advertise, promote or market the System or any Reactor Skid Unit under and within the scope of the rights and license granted to Licensee under this Agreement.  Licensee shall not publish, use or refer to Licensor’s name, marks or logos in any manner that would diminish, dilute or compromise its/their commercial value.

(b) All advertising, promotional and marketing materials (printed or in electronic format) prepared or used by Licensee that either use Licensor’s name, marks or logos to describe the System or any Reactor Skid Unit must be approved in writing by Licensor before its/their use or distribution by Licensee.  Licensee shall not issue any press release or other public announcement or statement with respect to the existence or terms of this Agreement or any Site User License, or as to any Reactor Skid Unit, without Licensor’s prior approval.

11.02  Licensee’s Name, Marks and Logos.  (a) During the term of this Agreement, subject to Section 11.02(b), Licensor shall be entitled to use Licensee’s name, marks and logos in materials prepared or used by Licensor to advertise, promote or market the System, Reactor Skid Units.  Licensor shall not publish, use or refer to Licensee’s name, marks or logos in any manner that would diminish, dilute or compromise its/their commercial value.

(b) All advertising, promotional and marketing materials (printed or in electronic format) prepared or used by Licensor that either use Licensee’s name, marks or logos to describe the System or any Reactor Skid Unit must be approved in writing by Licensee before its/their use or distribution by Licensor.  Licensor shall not issue any press release or other public announcement or statement with respect to the existence or terms of this Agreement or any Site User License without Licensee’s prior approval.

11.03  Licensor Branding Requirements.  (a) Licensee may request to have displayed on each Reactor Skid Unit by Licensor under the terms of this Agreement, either directly on the Unit or in sign or other display, which is permanently affixed thereto, the following:

(b)  Within sixty (60) days after the Effective Date, the Parties will develop an appropriate platform, format, artwork and graphics to satisfy the Licensor branding requirement specified above, each of which shall require Licensor’s final approval.

(c) Any proposed use, presentation or publication by the Parties, or either of them, of a “co-branded” format, platform or medium for any Reactor Skid Unit, or in any advertising, promotional or scientific materials or works, shall maintain adequate separation of the names, marks and logos of the Parties in order to protect the distinctness and integrity of the marks under Applicable Law and shall require the prior written approval and consent of each Party.

12.01  Notices.  Any notice, payment, request, demand or other communication hereunder shall be in writing and shall be deemed to have been duly given when  (i) delivered personally to the Party to be notified; or (ii) upon delivery or transmittal if sent by facsimile transmission with confirmation that the facsimile message was received by the facsimile machine of the Party to be notified, (iii) upon delivery if sent by a overnight carrier; (iv) three business days after sent by ordinary mail, postage paid, to the party to be notified,  or (v) five business days after sent by registered or certified mail, postage paid, to the party to be notified, at the address set forth below.  Either Party may change its address, facsimile number or representative upon written notice to the other Party.  A letter duplicating a facsimile transmission previously marked as received by the facsimile machine of the other party shall not extend the time by which the notice was given.

13.01  Integrated Documents.  (a) This Agreement consists of the Preamble, Articles and Sections contained in the text of this Signature Document, together with the following Schedules:

(b) The Schedules listed above and attached hereto, together with documents referred to therein, are incorporated by reference and made a part of this Agreement for all purposes.

 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date(s) set forth below.

Article 1.  Defined Terms.  Unless the context shall otherwise require, capitalized terms contained in this Agreement (including each of the Schedules thereto) shall have the following meanings:

“AAA” means the American Arbitration Association.

“AAA Rules” means the AAA’s Commercial Arbitration Rules, together with the AAA Optional Rules for Emergency Measures of Protection, in each case as amended and updated from time to time.

"Affiliate" means, with respect to either Party, a person or entity that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with that Party, with the terms “control” and “controlled” meaning for purposes of this definition, the power to direct the management and policies of a person or entity, directly or indirectly, whether through the ownership of voting securities or a partnership, membership or other ownership interest, or by contract or otherwise.

“Agreement” means this Marketing & Technology License Agreement. 

“Applicable Law” means all laws, statutes, ordinances, certifications, orders, decrees, injunctions, permits, agreements, rules and regulations of the United States or any state thereof, or any governing authority having jurisdiction over all or any portion of this Agreement or performance of Licensee’s services and work under this Agreement, or other legislative or administrative action of any governing authority, or a final decree, judgment or order of any arbitrator, arbitration panel or a court or the interpretation or application of this Agreement, including (a) any and all permits, authorizations, certifications, or other approvals or orders, (b) any codes and standards contained in or required by Applicable Law, and (c) any Applicable Law related to safety, health or environmental protection.

 “Confidential Information” means information, data and documents (whether in print form or capable of being digitally stored and generated), including any formula, pattern, compilation, program, apparatus, device, drawing, schematic, method, technique, process or data (including without limitation data generated by the operation of the Pilot Plant), that (a) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other Persons that can obtain economic value from its publication, disclosure or use, and (b) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

For purposes of this Agreement, the term “Confidential Information” consists of and includes, without limitation, the following:  (1) this Agreement and the terms and conditions contained herein, together with any notices, communications or correspondence required or given by the Parties thereunder; (2) the Licensor Confidential Information, and (3) the Licensee Confidential Information.

“Dispute” has the meaning set forth in Section 5.02 of the General Terms and Conditions in Schedule B hereto.

“Drawings" means the drawings, diagrams, flow charts or sheets, process data sheets and other process documents either furnished by Licensor to Licensee, or developed by Licensee and approved by Licensor, for or in connection with the marketing, lease, installation, testing, operation and/or maintenance of any Reactor Skid Unit.

“Effective Date” means the date on which this Agreement shall take effect as specified in the first or introductory paragraph of this Agreement.

 

 “Inventions or Improvements” means any patentable or non-patentable invention, discovery, technology and information of any type whatsoever, including without limitation processes, methods, formulae, compositions, devices, operating techniques, reactants, catalysts, technical information, knowledge, experience, improvements, modifications, enhancements and Know-How that relate to the design, fabrication, construction, maintenance or operation of any Reactor Skid Unit or in the use, practice or commercialization of the  Licensed Technology. or in making or aiding in the production of degummed vegetable oils that utilizes, incorporates, derives from, or is otherwise based on the Licensed Technology, in each case which is discovered, made, designed, developed or acquired by Licensor or by Licensee, as the case may be, solely or with others, or used or practiced at or in a Licensed Reactor Unit.  The term “Inventions or Improvements” includes, without limitation, patents, patent applications, copyrights, trade secrets and Confidential Information, and the entire scope and content of the intellectual and tangible property included therein and produced therefrom.

“Know-How” means all factual and proprietary knowledge, information and expertise possessed by Licensor, or to which Licensor has rights, relating to or otherwise useful in (a) the design, fabrication, construction, maintenance or operation of a Reactor Skid Unit, or (b) the practice of the Licensed Technology, whether or not such knowledge, information and expertise are included within (1) the Licensor Patent Rights and the Licensor Technical Information, (2) any Invention or Improvement, or (3) any patent or patent application or future patent application, copyright, trademark or other intellectual property rights; and includes, without limitation, all technical, chemical, manufacturing, business, financial, formulation and scientific research data or information, whether or not capable or precise separate description, and whether or not such information is public or non-public.

“Licensed Technology” means and includes the Licensor Patent Rights and the Licensor Technical Information; provided, however, the term “Licensed Technology” shall be limited to the rights granted to Licensee under this Agreement and to rights granted to each Site User under the terms of a Site User License and shall not include any of rights with respect to the design and manufacture of any Reactor Skid Unit or any component or part thereof.

“Licensed Territory” means and includes the following:  Worldwide, except for Japan.

“Licensee Group” means Licensee and its Affiliates, and each of their respective officers, directors, and employees, consultants, advisors and representatives.

“Licensor Confidential Information” means (1) the Licensor Technical Information and the Reactor Information, (2) the Process Design Package, including without limitation each document and any and all information contained therein, together with the Drawings, Standards and Specifications and other drawings, charts, schematics, blueprints, diagrams, standards, specifications and other information showing or depicting the process design of the Green D Plus Nano Cavitation Reactor Skid System or any specific Reactor Skid Unit, including the Pilot Plant; (3) all information, data and documents (whether in print form or capable of being digitally stored and generated) furnished by Licensor to Licensee under the terms of this Agreement or prior to the Effective Date that relate in any way to the Reactor Skid Unit or the Licensed Technology; and all information, data and documents (whether in print form or capable of being digitally stored and generated) furnished by Licensee to Licensor, to the exclusion of Licensee’s Confidential Information, under the terms of this Agreement, including without limitation all Drawings, Standards and Specifications and other drawings, charts, schematics, blueprints, diagrams, standards, specifications and other documents relating in any way to the engineering, design, fabrication, construction, operation and maintenance of any Reactor Skid Unit or that contain, show or depict the Licensed Technology or any aspect thereof.  For purposes hereof, the term “Licensor Confidential Information” shall not include any information, data or document that is included within the scope of Licensee’s Confidential Information.

“Licensor Group” means Licensor and its Affiliates, and each of their respective officers, directors, employees, consultants, advisors and representatives.

“Licensor Inventions or Improvements” means the Inventions or Improvements invented, discovered, conceived or acquired by Licensor or any of its Affiliates.

“Licensor Patent Rights” means all rights with respect to the Licensor Primary Patents and other patents and patent applications of, issued by, or filed or prosecuted in, all relevant countries, in all embodiments covered thereby or included therein, to the extent that the claims include or embody features of or relating to  (a) the design, fabrication and construction of Reactor Skid Units (or any component thereof), (b) the Licensed Technology, including without limitation any process or method, operating technique, apparatus and device relating thereto, which is or may be useful in the practice thereof, and (c) a process for the design, fabrication and construction of certain equipment, reactors, piping and instrument that utilizes a hydrodynamic flow-through nano cavitation process for aiding in the production of degummed oils; and (d) any other process, method, operating technique, apparatus or device for manufacturing, making or aiding in the production of degummed vegetable oils and other products, fuels, chemicals, formulations, compounds and/or mixtures; in each case which are acquired by Licensor or are based on or derived from inventions or discoveries conceived by Licensor in the field of Vegetable Oil Refining Science prior to termination of this Agreement, to the extent that, and subject to the terms and conditions under which, Licensor has the right to grant licenses, immunities or licensing rights, including any obligation by Licensor to account to and make payment to others. A list of the existing Licensed Patent Rights is attached to this Agreement as Schedule H.

“Licensor Primary Patents” means the patents and patent applications filed by Licensor with, or issued to Licensor by, the U.S. Patents and Trademarks Office, together with any corresponding or equivalent patents or patent applications issued to or filed by Licensor in any foreign countries or jurisdiction, which assert claims or reflect or embody features of or relating to (a) the design, fabrication and construction of Reactor Skid Units (or any component thereof), (b) the Licensed Technology, including without limitation any process or method, operating technique, apparatus and device relating thereto, which is or may be useful in the practice thereof, and (c) a process for the design, fabrication and construction and operation of certain equipment, reactors, piping and instrument that utilizes a hydrodynamic flow-through nano cavitation process which aids in degumming crude vegetable oils; and (d) any other process, method, operating technique, apparatus or device for manufacturing, making or aiding in the production of degummed vegetable oils and other products, fuels, chemicals, formulations, compounds and/or mixtures; in each case which are acquired by Licensor or are based on or derived from inventions or discoveries conceived by Licensor in the field of Vegetable Oil Refining Science.

“Licensor Technical Information” means (a) all unpatented information and data relating to the Licensed Technology, including without limitation all Know-How and any inventions, trade secrets, formulae, processes, methods, technologies, operating techniques, apparatuses, reactants, catalysts and other chemicals, chemical compounds and mixtures, that are or may be useful in practicing the Licensed Technology, (b) the Reactor Information, and (c) all Inventions and Improvements.

“Nano Cavitation Reactor” means the proprietary reactors designed and manufactured in accordance with Licensor’s specifications and integrated into each Reactor Skid Unit.

“Party” means Licensor or Licensee, or either of them, including each of their respective successors and any permitted assignees under the terms of this Agreement.

“Performance Guarantee” means the performance criteria that each Reactor Skid Unit must achieve or satisfy during performance tests conducted prior to handover of the Unit to the Site User as specified in Section 1.03 of Schedule B hereto and as set forth in Schedule G hereto.

 

“Person” means any natural person, corporation, partnership (including both general and limited partnerships), limited liability company, firm, association, trust, government, governmental agency, instrumentality, political subdivision or other legal entity other than the Parties.

“Pilot Plant” means the limited scale pilot plant previously designed by Licensor and constructed or assembled by Licensor.

“Primary Term” means the initial term of this Agreement set forth in Section 9.01.

“Process Design Package” means the comprehensive design package for the Reactor Skid Units, including without limitation drawings, schematics, flow charts, diagrams and documents depicting process design; reactor, piping and instrumentation diagrams; process data sheets for equipment; instrumentation data sheets; safety value data sheets; logic diagrams; graphic displays; performance data; and technical or operating manuals; in each case which are in tangible print or that are or may be electronically stored and retrieved by any means and relate to the design, fabrication, construction, installation, operation and maintenance of the Units.

“Reactor Information” means all information, including without limitation, all data, processes, plans, specifications, flow sheets, designs, diagrams and drawings relating in any way to the design, fabrication, construction, or operation of any Nano-Cavitation Reactor.

“Reactor Skid Unit” or “Unit” means each processing unit or facility designed and constructed in accordance with and utilizing Licensor’s proprietary Green D Plus Nano Cavitation Reactor Skid System, consisting of certain equipment, piping, instrumentation and other components (including one or more Nano-Cavitation Reactors) designed, fabricated and constructed in accordance with the Product Design Package, whether constructed for demonstration or commercialization purposes, which uses a hydrodynamic flow-through nano cavitation technology in making, generating or aiding in the production of degummed vegetable oils.

“Renewal Term” has the meaning set forth in Section 9.01 of this Agreement.

“Secrecy & Non-Disclosure Agreement” means the Secrecy & Non-Disclosure Agreement executed by and between the Parties simultaneously herewith.

“Site User License” means the license to use, maintain and operate one or more Reactor Skid Units substantially in the form of the Site User License set forth in Exhibit D hereto.

“Site User” means any Person that has received, accepted and executed a Site User License with respect to one or more Reactor Skid Units.

“Specifications” means the items, criteria, data and requirements governing the design, fabrication, construction, installation, performance, operation and/or maintenance of the Reactor Skid Units, including without limitation the detailed specifications developed by Licensee and approved by Licensor, in each case shall be part of or be consistent with the Process Design Package.    

“Standards” means any and all codes, standards or requirements set forth or specified in this Agreement or under Applicable Law, relating to Licensee’s design, construction, installation and operation of any Reactor Skid Unit.  In the event of any conflict between any of the Standards, the Standard containing or including the higher performance standard shall apply.

 

“Vegetable Oil” means any natural oils (virgin and/or used) derived from plants and other related organic materials (excluding crude oil and other hydrocarbon based minerals and substances), including any products, materials and other substances derived therefrom.

“Vegetable Oil Processing Facilities”” means any plant or facility located at a geographic site or location within the Licensed Territory which is designed, constructed and is or will be operated for the purpose of processing vegetable oils.

“Vegetable Oil Science” means the use of a process known as “degumming” or any other process or method for the processing of natural oils (virgin and/or used) derived from plants and other organic materials (excluding crude oil and other hydrocarbon based oils, minerals and substances) and includes, without limitation, the teachings and claims set forth in the Licensor Primary Patents.

[END OF SCHEDULE A]

Article 1.  Warranties; Performance Guarantee; Limitations on Liability.

(a) Licensor warrants that, at the time each Nano-Cavitation Reactor or Reactor Skid Unit delivered to Licensee or a Site User, as the case may be, will perform in accordance with Licensor’s performance specifications.

  (b) If, at any time during a one (1) year period after startup of any Reactor Skid Unit, it is discovered that the Unit (or any component or part thereof) does not meet the foregoing warranties, Licensee shall, at no cost to Licensor, promptly perform or arrange for the performance of any remedial work or services required to make the Unit conform to such warranties.

1.02  Performance Guarantee.  (a) Prior to the handover of each Reactor Skid Unit to the Site User(s), Licensee shall conduct a performance test on each Unit, utilizing the American Society of Mechanical Engineers’ testing methodology and deploying steady state testing, for the purpose of determining whether the Unit’s performance achieves or satisfies the Performance Guarantee set forth in Schedule G hereto.  If the Unit, during performance testing, achieves the criteria specified in the Performance Guarantee, Licensee shall promptly issue to the Site User(s) an inspection and performance test certificate confirming that the Performance Guarantee has been satisfied.  Each such certificate shall be signed by Licensee and the Site User and shall be conclusive evidence that the Unit achieved and satisfied the Performance Guarantee.  Upon delivery of the original certificate to the Site User, one (1) copy will be delivered to Licensor with one (1) or more copies retained by Licensee.

  (b) If the performance testing of any Reactor Skid Unit prior to handover fails to achieve or satisfy the Performance Guarantee, Licensor shall (1) promptly perform or arrange for the performance of any remedial work or services required for the Unit to satisfy the Performance Guarantee, and (2) conduct such additional performance tests to verify that the Performance Guarantee has been satisfied.  Licensor shall be responsible for the cost of any performance re-test, including costs associated with securing and storing feedstocks.

1.03  Limitation on Damages.  (a) Except for violations of Section 4.03 of this Agreement or as set forth in Section 5.02(c) of this Schedule B, NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR SAVINGS, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH A CLAIM FOR SUCH DAMAGES, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, EVEN IF LICENSOR OR LICENSEE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) THE AGGREGATE LIABIITY OF LICENSOR FOR ANY REASON AND UPON ANY CLAIM OR CAUSE OF ACTION BASED ON OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF LICENSE FEES, RENTS AND ROYALTIES PAID TO LICENSOR UNDER THIS AGREEMENT.  THIS LIMITATION APPLIES TO ALL CLAIMS OR CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, INDEMNITIES, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, CLAIMS FOR FAILURE TO EXERCISE DUE CARE IN THE PERFORMANCE OF SERVICES HEREUNDER OR IN THE SELECTION, DIRECTION OR SUPERVISION OF ANY MANUFACTURER OR FABRICATOR OF EQUIPMENT OR ANY VENDOR OF SOFTWARE.

 

HOWEVER, THE LIMITATION STATED UNDER THIS SECTION 1.03 (b) DOES NOT APPLY IN CASE OF INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF PATENTS OR COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS RELATING TO OR ARISING FROM ANY REACTOR SKID UNIT OR THE LICENSED TECHNOLOGY AND ASSERTED BY ANY THIRD PARTY AGAINST THE LICENSEE OR AGAINST ANY SITE USER .

IF IT APPEARS THAT THE CLAIM FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT CAN BE SOLVED BY THE PAYMENT OF AN INDEMNITY OR FEE OR ROYALTY TO THE AGGRIEVED THIRD PARTY CAN BE SOLVED BY THE PAYMENT OF AN INDEMNITY OR FEE OR ROYALTY TO THE AGGRIEVED THIRD PARTY, LICENSOR SHALL SUPPORT THE PAYMENT OF SUCH INDEMNITY, FEE OR ROYALTY.

 

Article 2.  Indemnification.

2.01 Licensor’s Indemnity.  (a) LICENSOR AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE LICENSEE GROUP FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, ACTIONS, SUITS, DAMAGES, LOSSES, AND LIABILITY (INCLUDING WITHOUT LIMITATION LITIGATION COSTS AND REASONABLE ATTORNEYS’ FEES) ON ACCOUNT OF:

(1) ANY BREACH OR VIOLATION OF LICENSOR’S REPRESENTATIONS OR WARRANTIES UNDER THIS AGREEMENT; AND

(2) ANY CLAIMED OR ACTUAL INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF PATENTS OR COPYRIGHTS RELATING TO OR ARISING FROM THE REACTOR SKID UNIT OR THE LICENSED TECHNOLOGY;

(b) NOTWITHSTANDING THE FOREGOING, LICENSOR’S INDEMNITY HEREIN SHALL NOT EXTEND TO OR INCLUDE LICENSEE’S PROPRIETARY EQUIPMENT, TECHNOLOGY OR SOFTWARE THAT DO NOT CONFORM IN ALL RESPECTS WITH THIS AGREEMENT, THE PROCESS DESIGN PACKAGE, AND LICENSOR’S SPECIFICATIONS.

HOWEVER, THE LIMITATION STATED UNDER THIS SECTION 1.03 (b) DOES NOT APPLY IN CASE OF INFRINGEMENT OR CONTRIBUTORY INFRINGEMENT OF PATENTS OR COPYRIGHTS OR OTHER INTELLECTUAL PROPORTY RIGHTS RELATING TO OR ARISING FROM THE REACTOR SKID UNIT OR THE LICENSED TECHNOLOGY AND ASSERTED BY ANY THIRD PARTY AGAINST THE LICENSEE OR AGAINST SITE USER .

IF IT APPEARS THAT THE CLAIM FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHT CAN BE SOLVED BY THE PAYMENT OF AN INDEMNITY OR FEE OR ROYALTY TO THE AGGRIEVED THIRD PARTY CAN BE SOLVED BY THE PAYMENT OF AN INDEMNITY OR FEE OR ROYALTY TO THE AGGRIEVED THIRD PARTY, LICENSOR SHALL SUPPORT THE PAYMENT OF SUCH INDEMNITY, FEE OR ROYALTY;

 

Re:	Green D Plus Nano Cavitation Reactor Skid System
	Marketing & Technology License Agreement dated _______, 2010
	Reactor Skid Unit Order & Request for Site User License and Equipment Lease