Attached files
| file | filename |
|---|---|
| EX-4 - SUBSCRIPTION AGREEMENT - Plycrete, Inc. | plycreteexhibit4.htm |
| EX-3.2 - BY-LAWS - Plycrete, Inc. | plycreteexhibit32.htm |
| EX-5 - OPINION OF COUNSEL AND CONSENT OF COUNSEL - Plycrete, Inc. | plycreteexhibits5.htm |
| EX-23 - CONSENT OF INDEPENDENT REGISTERED CPA - Plycrete, Inc. | plycreteexhibits23.htm |
| EX-3.1 - ARTICLES OF INCORPORATION - Plycrete, Inc. | plycreteexhi9bit31.htm |
| S-1 - PLYCRETE FORM S-1 02/01/10 - Plycrete, Inc. | plycretes1020110.htm |
Exhibit
10
LICENCE AGREEMENT (this “Agreement”), entered in
Montreal, Quebec, Canada, as of May the 14th 2008.
|
BETWEEN:
|
CLEM-G PLYCRETE INC., a
corporation duly incorporated in Canada, under the laws of Quebec, having
its head office at 1255, University, suite 912, Montreal, Quebec, H3B 3W4,
represented for the purpose hereof by Clement Guèvremont, its
president, duly authorized as per a resolution
dated ;,
a copy of which is attached
herewith;
|
(hereinafter
called "CLEM-G")
|
AND:
|
PLYCRETE INC., a
corporation duly incorporated under the laws of Nevada, .having its head
office at 2050, Russett Way, Carson City, Nevada, 89703,
represented for the purpose hereof by Madeleine Houle, its
corporate secreatary, duly authorized as per a resolution
dated ;
a copy of which is attached
herewith;
|
(hereinafter
called “PLYCRETE”)
WHEREAS CLEM-G has
acquired from Clement Guèvremont rights in certain technology that
relates to bulding panels and methods, more particulary concerned with wall
surface building panels with quick assembly features and improved joint sealing,
and method of installation thereof known
as CLEM-G;
WHEREAS CLEM-G has also
acquired from Clément Guèvremont rights in certain technology that relates to
cementious structures and methods for fabrication thereof, more particularly
concerned with a reinforced multilayer cementious structure and a method of
manufacture thereof Known as PLYCRETE;
WHEREAS a patent application
entitled Building Panelwas filed in the United States for the CLEM-G product
under no: 806-B02.US and is pending;
WHEREAS a patent application
entitled Reinforced Cementious Structure and Method of Manufacture of Same was
filed in the United States for the PLYCRETE product under
no 806-B.01.US
and is pending;
WHEREAS CLEM-G is interested
in granting licence rights to market and sell both the CLEM-G and PLYCRETE
products (as defined below) and to use the Trademarks (as defined below) in the
Territory, as defined thereafter;
WHEREAS CLEM-G intends to own
or have access to the equipment, facilities and the required skills
to manufacture or have manufactured the CLEM-G and PLYCRETE Products and kits in
accordance with applicable standards;
WHEREAS PLYCRETE
desires to acquire license and Trademark rights to the CLEM-G and
PLYCRETE Products in the Territory, upon the terms and conditions herein set
forth in this Agreement;
WHEREAS PLYCRETE wishes to
retain the services of CLEM-G to supply it with the CLEM-G and PLYCRETE Product
upon the terms and conditions set forth this
Agreement;
WHEREAS PLYCRETE also wishes
to retain on a need basis the services of Clem-G for management
services;
NOW
THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS CONTAINED HEREIN AND
INTENDING TO BE LEGALLY BOUND, THE PARTIES HEREBY AGREE AS FOLLOWS:
1
1. DEFINITIONS
(Defined Terms). Each time the following terms are used in
this agreement and as far as the context does not clearly give them another
meaning, they shall have the following meaning:
1.1. “Affiliates” shall mean any
legal entity (such as a corporation, partnership, or limited liability company)
that controls is controlled by, or under common control with, CLEM-G or
PLYCRETE, as applicable. For the purposes of this definition, the
term "control" means (i) beneficial ownership of at least fifty percent (50%) of
the voting securities of a corporation or other business organization with
voting securities or (ii) a fifty percent (50%) or greater interest in the net
assets or profits of a partnership or other business organization without voting
securities.
1.2. "Agreement" shall mean this
License Agreement.
1.3. “CLEM-G Marketing Resources”
means all currently existing and future marketing materials, research reports,
advertisements, educational materials, art work, designs or other materials
related to CLEM-G Products that are developed by or for CLEM-G, and
used by CLEM-G or its predecessor to promote or market CLEM-G Product in the
Territory, and all currently existing and future Published Studies (as defined
below). PLYCRETE is free to use the CLEM-G Marketing Resources at its
entire discretion, provided however that it acknowledges that CLEM-G makes no
representations or warranties with respect to the accuracy of the information,
the regulatory compliance or the validity of the claims found in the CLEM-G
Marketing Resources that were prepared by or for CLEM-G.
1.4. "CLEM-G Product" means , rights
in certain technology that relates to bulding panels and methods, more
particulary concerned with wall surface building panels with quick assembly
features and improved joint sealing, and method of installation
thereof ;
1.5. PLYCRETE product means rights
in certain technology that relates to cementious structures and methods for
fabrication thereof, more particularly concerned with a reinforced multilayer
cementious structure and a method of manufacture thereof Known as
PLYCRETE;
1.6. "Effective Date" means the date
of this Agreement as set forth above.
1.7. “Materials” means any
packaging, labels and/or advertisement relating to the CLEM-G and PLYCRETE
Products, any claim relating to the functions and characteristics of the CLEM-G
and PLYCRETE Products, or the methods in respect of the
CLEM-G . Products used in the Territory, as well as any future changes related
to any of the aforementioned, including Promotional Items and Product Packaging,
but not including CLEM-G Marketing Resources.
1.8. “Patents” means all currently
existing and future US, Canadian and international patents, patent applications,
and any future patents and patent applications relating to CLEM-G, PLYCRETE or
the CLEM-G Products, including any other patents and other intellectual property
protection resulting from reissues, reexaminations, extension, modifications or
divisions of such patents, as well as any rights granted pursuant to patents
pending.
1.9. “Product Packaging” means the
packaging and labels designed by CLEM-G for the CLEM-G Product in the Territory
that incorporate the Trademarks for the applicable CLEM-G Product required or
permitted by this Agreement.
1.10. “Promotional Items" means any
type of promotional material or object used to entice the use and sale of the
CLEM-G Product in the Territory, but excludes CLEM-G Marketing
Resources.
1.11. "Territory" North
America.
1.12. "Trademarks" means CLEM-G
currently existing and future US, Canadian and international trademarks, logos
and trade names, including, but not limited to and their representations in the
form of designs, that are related to the CLEM-G Product, as they may be modified
from time to time as well as all applications and registrations related thereto,
including, but not limited to, those identified on Schedule B to this
Agreement which is hereby incorporated herein by this reference.
2
2. LICENCE
RIGHTS
2.1. CLEM-G
hereby grants to PLYCRETE, and PLYCRETE hereby accepts, the right to licence the
CLEM-G Products during the Term, including packaging, marketing,
selling and distributing, in the Territory, subject to the terms and conditions
set forth below and otherwise set forth in this Agreement.
(a) This
licence right shall be exclusive with respect to the Territory
(b) PLYCRETE
shall at all time uses its best efforts in order to actively promote the sales
of the CLEM-G Products pursuant to this Agreement and develop the market for the
CLEM-G Products in the Territory.
2.2. N/A
2.3. CLEM-G
hereby grants PLYCRETE the right to use the Trademarks in connection with the
promotion, marketing and sale of CLEM-G Products in the Territory and the right
to use the applicable Trademarks in relation with the Promotional Items and
Product Packaging, CLEM-G Marketing Resources, and the Materials in the
Territory, the whole without any consideration other than as provided
herein. CLEM-G hereby grants PLYCRETE the right to use the Trademarks
in the Territory that relate to the CLEM-G Products in relation with the
Promotional Items and the Materials in the Territory, the whole without any
consideration other than as provided herein. Notwithstanding the
foregoing, the rights granted under this Section 2.3 are subject to revocation
or modification if the license granted under Section 2.1 above is revoked or
modified as provided in Sections 2.1(a), 2.1(b), or
2.1(c).
2.4. CLEM-G
shall make available to PLYCRETE, and PLYCRETE may use, all CLEM-G Marketing
Resources. In addition, subject to the limitations set forth above,
PLYCRETE may design, create and use any Promotional Items and Product Packaging
in connection with the marketing and sale of the CLEM-G Products; provided,
however, any such Promotional Items and Product Packaging shall be subject to
the approval of CLEM-G, with the sole objective being to ensure that they
adequately protect CLEM-G trademarks and copyrights, which approval shall not be
unreasonably withheld.
2.5. PLYCRETE
may not grant any licence rights related to the CLEM-G Products to third parties
without the prior written approval of CLEM-G, such approval being at CLEM-G sole
discretion; provided, however, that PLYCRETE may, with the approval of CLEM-G,
grant all or any of the licence rights granted to PLYCRETE under this Agreement
to any of PLYCRETE’s Affiliates and to the third parties that are listed on
Schedule
C to this Agreement, such CLEM-G approval shall not unreasonably be
withheld.
2.6. Any
license rights granted by PLYCRETE shall include provisions
that require the licensee to be subject to the terms and conditions of this
Agreement, including, but not limited to Section 9.3 of this
Agreement. Any licence agreement
granted by PLYCRETE shall include a provision pursuant to which, upon
termination of this Agreement for any reason whatsoever, the licence agreement
will be either terminated or assumed by CLEM-G, at CLEM-G sole
discretion.No distributor shall be granted a term greater than the term
of this Agreement. Should this Agreement be terminated, PLYCRETE’s
ability to grant further licence rights shall immediately
terminate. PLYCRETE shall be solely liable for any and all such
distributors.
2.7. As
consideration for the license granted hereunder, PLYCRETE agrees to pay CLEM-G
the amount of $100 000USD
in following manner:
$30 000USD
upon signature of the present agreement
$70 000USD
within twelve (12) months of the signature of the present
agreement;
3. SUPPLY
3.1. CLEM-G
hereby undertakes and agrees to manufacture or have manufactured all CLEM-G
Product required by PLYCRETE, in accordance with the orders received from
PLYCRETE, such orders being in the form of a Purchase Order (a “Purchase Order”) having terms
and conditions to be established in good faith, to the satisfaction of the
parties, acting reasonably, the whole in accordance with the Specifications for
the CLEM-G Products which are annexed hereto as Schedule “A”, which
shall be subject to modification as described in Section 3.2 below (the “Specifications. CLEM-G
may reject any Purchase Order that does not meet the requirements established by
this Agreement; provided, however, that CLEM-G shall have been deemed to accept
each Purchase Order, unless it provides PLYCRETE with a written objection to
such Purchase Order within ten (10) days of receipt of such Purchase Order, and
sets forth with reasonable particularity the grounds for the rejection of such
Purchase Order.
3.2. CLEM-G
may, at any time, modify the Specifications of the CLEM-G Products in a
reasonable manner, provided that such modification does not substantially alter
the nature of the CLEM-G Products, subject to ninety days (90) prior written
notice of same being given to PLYCRETE, such notice to be accompanied by an
explanation of such modification with any applicable regulatory documents from
the country of manufacture. Any such
modification shall apply only with respect to orders received after the
expiration of such ninety (90) day prior notice period.
3.3. The
CLEM-G Products and methods shall conform to all applicable United States laws,
rulings, rules, standards and regulations relating to the manufacturing and
storing of the CLEM-G Products.
3.4. N/A
3.5. N/A; .
3.6. N/A
(Transfer Price).
3.7. The
terms of payment will be net 30 days from the date of invoicing, such date of
invoicing being the same as the shipment date of the CLEM-G
Product.
3.8. Title
to the CLEM-G Product sold and risk of loss of such CLEM-G Products passes to
PLYCRETE upon delivery of such CLEM-G Products to the carrier at CLEM-G
facility.
3.9. PLYCRETE shall be obligated to order from
ONS, for the Territory, the following minimum quantities of the ONS Product for
the periods indicate below: N/A
3
4. CONTRACTUAL WARRANTY;
LIMITATION OF LIABILITY
4.1. CLEM-G
warrants to PLYCRETE that all CLEM-G Products sold to PLYCRETE will materially
conform to the Specifications established from time to time for the CLEM-G
Products, in accordance with sub-section 3.1. CLEM-G warrants to
PLYCRETE that all CLEM-G Products sold to PLYCRETE will comply with all
applicable laws as set forth in Section 3.3 of this Agreement. CLEM-G
will replace in a commercially reasonable period at no cost to PLYCRETE, any
CLEM-G Products suffering from a material non-compliance with these
aforementioned Specifications subject to the limitations contained in Section
4.2.
4.2. The
present product warranty does not cover defects resulting from use that is
non-compliant with the instructions of CLEM-G, improper use (including use that
does not conform to the dosage recommended and approved by CLEM-G), improper
storage or handling after the CLEM-G Product has been shipped from the CLEM-G
facility, or any modification or transformation of the CLEM-G Product after the
CLEM-G Product has been shipped from the CLEM-G facility.
4.3. The
product warranty contained in Section 4.1 is granted on an exclusive basis and
replaces any other product warranty that may have been provided, whether
verbally or in writing, implied or expressed.
4.4. NO
EXPRESS AND NO IMPLIED WARRANTIES WHETHER OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR USE, OR OTHERWISE OTHER THAN THOSE EXPRESSLY SET FORTH ABOVE WHICH
ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, SHALL APPLY TO THE ONS
PRODUCTS SOLD TO AND BY PLYCRETE, AND NO WAIVER, ALTERATION, OR MODIFICATION OF
THE FOREGOING CONDITIONS SHALL BE VALID UNLESS MADE IN WRITING AND SIGNED BY AN
EXECUTIVE OFFICER OF PLYCRETE.
4.5. IN NO
EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST INCOME OR LOST
REVENUE. EXCEPT FOR THE INDEMNITY PROVISION CONTAINED IN ARTICLE 9,
AS OTHERWISE EXPRESSLY PROVIDED FOR ELSEWHERE IN THIS AGREEMENT OR AS MAY BE
PROHIBITED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO THE INDEMNIFICATION
PROVISIONS PROVIDED FOR HEREIN, EACH PARTY'S AGGREGATE CUMULATIVE LIABILITY
HEREUNDER FOR ALL DIRECT DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT
NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY
ACTION IS BROUGHT, SHALL BE LIMITED TO THE AMOUNT RECEIVED BY
CLEM-G FROM PLYCRETE WITH RESPECT TO THE ONS PRODUCT PROVIDED
HEREUNDER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING SUCH
CLAIM.
4.6. Except in
the case of gross negligence by CLEM-G, in no case shall CLEM-G be liable to
PLYCRETE or any other person for damages, notably loss of profit, loss of
savings or fortuitous or consequential damages resulting from the marketing of
the CLEM-G Products in the Territory.
4.7. Except in
the case of gross negligence by PLYCRETE, in no case shall PLYCRETE be liable to
CLEM-G or any other person for damages, notably loss of profit, loss of savings
or fortuitous or consequential damages resulting from the manufacturing of bulk
CLEM-G Products in the Territory.
4
5. REPRESENTATIONS AND
WARRANTIES OF CLEM-G
CLEM-G represents and warrants the
following to PLYCRETE:
5.1. CLEM-G
is, and at all relevant times shall be, the sole and exclusive owner or has the
exclusive rights to the entire unencumbered right, title and interest in and to
the Patents and the Trademarks (collectively, the “Intellectual Property
Rights”), free and clear of any liens, charges, encumbrances, and has all
of the rights and power necessary, and the exclusive rights, to enter into this
Agreement and grant the licenses and other rights granted hereunder, and to
fulfill all of its obligations hereunder, and CLEM-G has all the necessary power
to enter into this Agreement, grant the licenses and other rights provided in
this Agreement, and to fulfill all of its obligations under this Agreement, and
is not subject to any restriction that would prevent CLEM-G from doing any of
the foregoing.
5.2. The
exercise by PLYCRETE, PLYCRETE Affiliates and their authorized licensee of the
rights granted herein shall not contravene the patents, trademarks, industrial
designs, copyrights or other rights belonging to third parties.
5.3. To the
actual knowledge of CLEM-G, the exercise by PLYCRETE, PLYCRETE Affiliates and
their authorized licensee of the rights granted herein will not contravene any
laws, regulations or government directives in the Territory.
5.4. There are
no pending or threatened actions, suits, proceedings, assessments,
investigations or claims pending before any court or by any federal, provincial,
municipal or other governmental department, commission, board, bureau or agency
related to the Intellectual Property Rights or the CLEM-G Products, or that
could adversely effect the consummation of the transactions contemplated by this
Agreement, have a material adverse effect on PLYCRETE or the rights granted to
PLYCRETE under this Agreement, and to the best of CLEM-G knowledge, there is no
event or act based on which such actions, suits, proceedings, assessments,
investigations or claims may be initiated.
5.5. CLEM-G is
not a party to any contract or agreement or subject to any charter or other
corporate restriction that could unfavourably affect the free and complete
exercise by PLYCRETE of the rights granted to it hereunder.
5.6. Neither
CLEM-G or any other person or entity with rights to the CLEM-G Product or the
Intellectual Property Rights will grant any right to any third party that is or
would be inconsistent PLYCRETE with the rights granted to PLYCRETE under this
Agreement;
5.7. The
Intellectual Property Rights are valid and enforceable.
5.8. All
safety risks, adverse events and other serious side effects associated with the
CLEM-G Products of which CLEM-G is aware have been disclosed to PLYCRETE, and
should CLEM-G become aware of any future adverse events or serious side effects
any where in the world, it will notify PLYCRETE in writing within seventy two
(72) hours. .
5.9. CLEM-G
acknowledges that each of the representations and warranties given herein are
essential considerations for PLYCRETE. Accordingly, subject to Section 4 above,
CLEM-G undertakes to indemnify PLYCRETE, PLYCRETE Affiliates and their clients
as well as their respective officers, directors, shareholders, agents, employees
and representatives, in respect of any damage, loss or defect to the extent
resulting from the inaccuracy or falseness of any or all of the representations
and warranties contained herein and any legal suit, procedure, claim, demand,
contribution or judgment, any fees and legal expenses resulting from the
preceding.
6. REPRESENTATIONS AND
WARRANTIES OF PLYCRETE
PLYCRETE represents and warrants the
following to CLEM-G:
6.1. PLYCRETE
has all the necessary powers to conclude this Agreement.
6.2. To the
actual knowledge of PLYCRETE, the COMMERCIALISATION and/or marketing by PLYCRETE
of the CLEM-G Products in the Territory shall not contravene the patents,
trademarks, industrial designs, copyrights or other rights belonging to third
parties.
6.3. To the
actual knowledge of PLYCRETE, the marketing and commercialisation of CLEM-G
Products in the Territory by PLYCRETE shall not contravene any laws, regulations
or government directives in the Territory or of the United States of
America. PLYCRETE specifically assumes all liability and
responsibility for determining and complying with all governmental exportation
and importation issues.
6.4. PLYCRETE’s
importation, packaging, storage, transportation, labelling, marketing and all
other activities related to the CLEM-G Product in the Territory shall conform in
all respects to present and future laws, rulings, rules, standards and
regulations related applicable to CLEM-G Product by the applicable authorities.
PLYCRETE shall provide CLEM-G with any evidence that CLEM-G may reasonably
request in this respect.
6.5. PLYCRETE
acknowledges that each of the representations and warranties given herein are
essential considerations for CLEM-G. Accordingly, PLYCRETE undertakes to
indemnify CLEM-G, CLEM-G Affiliates, and their clients as well as their
respective officers, directors, shareholders, employees, agents and
representatives in respect of any damage, loss or defect to the extent resulting
from the inaccuracy or falseness of any or all of the representations and
warranties contained herein and any legal suit, procedure, claim, demand,
contribution or judgment, fees and any legal expenses resulting from the
preceding.
6.6. In the
event that PLYCRETE becomes aware of safety risks, adverse events and other
serious side effects associated with the CLEM-G Product in the Territory,
PLYCRETE will inform CLEM-G in writing within seventy two (72)
hours.
5
7. TERM
7.1. This
Agreement is made for an initial term of ten (10) years commencing on the
Effective Date (the “Initial Term”).
7.2 This
Agreement will be automatically renewed for successive periods of five (5) years
at the end of the initial term and each renewal term, as applicable, provided,
however, the parties shall negotiate in good faith and agree upon the applicable
terms and conditions (including the minimum quantities to be ordered by PLYCRETE
during any renewal period), to the mutual satisfaction of both parties, under
condition that PLYCRETE has fulfilled its obligations stipulated in this
Agreement, including section 3.11 above. If PLYCRETE decides not to
renew the contract at the end of any term, it shall provide CLEM-G with 90 days
notice.
8. TRADEMARKS AND INTELLECTUAL
PROPERTY INFRINGEMENT
8.1. Trademarks
(a) N/A
(b) N/A
(c) N/A
8.2. Infringement
(a) Each of
the parties shall promptly notify the other party upon learning of any actual or
threatened infringement or violation of any of the Trademarks or Patents, as
soon as such party becomes aware of such actual or threatened
infringement. The parties hereto undertake to consult each other in
order to determine the appropriate measures to be taken under the
circumstances.
(b) CLEM-G
shall institute a legal suit against any infringement or serious infringement
threat regarding the Trademarks or Patents in the Territory it deems
appropriate.
(c) In the
event CLEM-G , in consultation with PLYCRETE, decides to institute a legal suit,
pursuant to Section 8.2(b), such action will be controlled by CLEM-G on its own
and PLYCRETE behalf. To this end, and if necessary in order to
institute the legal suit, PLYCRETE will give CLEM-G an appropriate power of
attorney. Any recovery obtained following such action, after the
reimbursement of the costs and expenses of such suit will be shared equally
between CLEM-G and PLYCRETE. PLYCRETE undertakes to provide all reasonable
assistance that may be required by CLEM-G.
(d) In the
event that CLEM-G refuses or neglects, without justification, to institute an
infringement claim when requested by PLYCRETE, the latter may, but shall not be
obligated to, institute such infringement claim at its own cost. CLEM-G
undertakes to supply, free of charge, any reasonable assistance that may be
required by PLYCRETE.
9. INDEMNITY AND LIABILITY
RELATING TO THE CLEM-G PRODUCTS
9.1. Each
party undertakes to advise the other within seventy two (72) hours following
receipt of any information likely to have a substantial negative impact, of any
notice or complaint relating to the CLEM-G Products, the right to market them
and any Intellectual Property infringement, originating in any territory
whatsoever.
9.2. Subject
to the provisions Section 4.5 and 9.4 of this Agreement and except as otherwise
prohibited by applicable law, CLEM-G undertakes to indemnify PLYCRETE, PLYCRETE
Affiliates, and their Approved Sub licensees as well as their respective
officers, directors, shareholders, employees, agents, representatives,
successors and assigns (each an “PLYCRETE Indemnified Person”) and to
hold them harmless from and against all losses, claims, damages, actions, suits,
proceedings, demands, deficiencies, assessments, adjustments, costs and expenses
(including, but not limited to, reasonable attorneys’ fees and expenses of
investigation) and all amounts paid in settlement of any of the foregoing, that
any PLYCRETE Indemnified Person may pay, incur or suffer, to the extent
resulting from, arising out of, or in relation to (1) the material inaccuracy or
breach of any representation, warranty or covenant made by CLEM-G under this
Agreement; or (2) directly caused by defects or failures in the manufacturing of
the CLEM-G Product, to the extent manufactured by, or manufactured at the
direction of, CLEM-G, except to the extent caused by the gross negligence or
wilful misconduct of such PLYCRETE Indemnified Person, PLYCRETE or any PLYCRETE
Affiliate.
9.3. Subject
to the provisions of Section 4.5 (except as otherwise prohibited by applicable
law), PLYCRETE undertakes to indemnify CLEM-G, CLEM-G Affiliates, and their
respective officers, directors, shareholders, employees, agents,
representatives, successors and assigns (each a “CLEM-G Indemnified Person”)
and to hold them harmless from and against all losses, claims, damages, actions,
suits, proceedings, demands, deficiencies, assessments, adjustments, costs and
expenses (including, but not limited to, reasonable attorneys’ fees and expenses
of investigation) and all amounts paid in settlement of any of the foregoing,
that the CLEM-G Indemnified Person may pay, incur or suffer, to the extent
resulting from, arising out of, or in relation to (1) the material inaccuracy or
breach of any representation, warranty or covenant made by PLYCRETE under this
Agreement; or (2) PLYCRETE packaging, storage, transportation, promotion, sale
or other licence of the CLEM-G Product, except to the extent caused by the gross
negligence or wilful misconduct of such Indemnified Person, CLEM-G or any CLEM-G
Affiliate.
9.4. Except as
specifically provided in Section 4.1 of this Agreement, and except for the
representations and warranties included in this Agreement , CLEM-G shall not
assume any obligation and does not make any representation or warranty of any
nature whatsoever regarding the CLEM-G Product, the Promotional Items or any
other Material and, without limitation of the following, CLEM-G does not make
any representation or warranty of any nature whatsoever regarding the
usefulness, the quality or the marketability of the CLEM-G
Product. CLEM-G will be in no way responsible PLYCRETE for the
warranties, representations, undertakings or any other obligation given or
assumed by PLYCRETE towards any party whatsoever regarding the manufacturing,
promotion, licence, use or sale of any CLEM-G Product and Promotional Item or
any other activity relating thereto.
9.5. Each
Party hereby agrees to maintain at all times a sufficient insurance in order to
indemnify the other party, its clients and the other Indemnified Persons
(minimum USD $5,000,000 per event) pursuant to this Agreement and to provide
proof thereof to the other party upon request (maximum once per
year).
6
10. TERMINATION
10.1. In
addition to what is provided in Section 7 of this Agreement, either party may
terminate this Agreement upon the occurrence of one of the following
events:
(a) If the
other party becomes bankrupt, makes a voluntary assignment of its assets to a
receiver, is declared bankrupt or insolvent or makes a voluntary assignment of
its assets for the benefit of its creditors;
(b) If
PLYCRETE or any of its Affiliates or its licensees proceeds with any operation,
manipulation, modification or other similar act of the CLEM-G Products in order
to modify the composition or attempts to manufacture a similar product to the
CLEM-G Products and PLYCRETE becomes aware of the same and fails to stop such
activity within sixty (60) days; or
(c) The
breach by the other party or of PLYCRETE Affiliates or its licensees of any
obligation or undertaking contained herein provided that such breach is not
corrected within sixty (60) days following receipt of a written notice to this
effect.
10.2. In the
event of early termination of this Agreement, PLYCRETE shall
immediately:
(a) Cease to
use the Trademarks in the Territory, except in connection with exercising its
rights under Section 10.2(c) below;
(b) Cease to
market and promote the CLEM-G Products, except in connection with exercising its
rights under Section 10.2(c) below;
(c) Diligently
proceed with the sale of its inventories of CLEM-G Products in its possession in
the Territory within no more than ninety (90) days following termination of this
Agreement;
(d) Upon the
expiration of the ninety (90) day period following the termination of this
Agreement, return any CLEM-G Product still in its possession; and
(e) Pay to
CLEM-G any amount due pursuant to this Agreement.
11. ASSIGNMENT
PLYCRETE may not assign its rights
pursuant to this Agreement to any related party or any third party without the
prior written consent of CLEM-G, which may be given or not, at CLEM-G’s sole
discretion.
12. ARBITRATION
12.1. Any
dispute arising between the parties hereto arising under this Agreement shall be
resolved by arbitration in Montreal, Quebec (or such other location as otherwise
mutually agreed) in accordance with the Quebec Civil Code, and the award of the
arbitrator(s) shall be final and binding upon the parties. The
arbitration award may be entered as a final judgment in any court of competent
jurisdiction.
12.2. All
arbitration proceedings shall be before a board of three (3) arbitrators, for
each of which each party shall select one (1) arbitrator and the selected
arbitrators shall select the third arbitrator.
12.3. The costs of the
arbitrators shall be divided equally between the parties, and each party
shall be solely responsible for its own costs in connection with the
arbitration..
12.4. The
parties hereto agree that the laws of the province of Quebec, without regard to
conflict of law provisions, will govern as additional provisions in any
arbitration that may be held pursuant to the provisions of the present
section.
7
13. NOTICE
13.1. Notice. Unless
otherwise provided herein, any notice, request, instruction or other document to
be given hereunder by any party to the others shall be in writing and delivered
in person or by commercial overnight courier, or by facsimile transmission, or
mailed by certified mail, postage prepaid, return receipt requested, as
follows:
All communications to CLEM-G should
be directed to:
CLEMENT GUEVREMONT
President
7400, Boulevard
St-Laurent
Montréal, Québec
H2R 2Y1
All communications to PLYCRETE
should be directed to:
MADELEINE HOULE,
Corporate Secretary
PLYCRETE INC.
2050, Russet Way
Carson, City, Nevada
89703
Any such
notice or other communication shall be deemed received and effective upon the
earlier of (a) if personally delivered, the date of delivery to the address of
the person to receive such notice; (b) if delivered by commercial overnight
carrier, one day following the receipt of such communication by such carrier
from the sender, as shown on the sender’s delivery invoice from such carrier;
and (c) if given by telex or telecopy, when sent. Any reference
herein to the date of receipt, delivery, or giving, as the case may be, of any
notice or other communication shall refer to the date such communication becomes
effective under the terms of this section. Notice of change of
address or facsimile number shall be given by written notice in the manner
detailed in this section. Rejection or other refusal to accept or the
inability to deliver because of changed address or facsimile number of which no
notice was given shall be deemed to constitute receipt of the notice or other
communication sent.
14. CONFIDENTIALITY.
14.1. In
connection with this Agreement, it is acknowledged that each party may disclose
its confidential and proprietary information to the other party. Any
such information that is (i) first disclosed in writing, (ii) if first disclosed
orally is later transmitted in written form, and is labeled as “Confidential”, or (iii) should
be understood to be confidential by a reasonably prudent person, is referred to
herein as “Confidential
Information.”
14.2. Each
party hereto shall maintain the Confidential Information of the other party in
confidence, and shall not disclose or otherwise communicate such Confidential
Information to others, or use it for any purpose except pursuant to, and in
order to carry out, the terms and objectives of this Agreement, and hereby
agrees to exercise every reasonable precaution to prevent and restrain the
unauthorized disclosure of such Confidential Information by any of its
directors, officers, employees, consultants or agents.
14.3. The
provisions of Section 15.2 of this Agreement shall not apply to any Confidential
Information disclosed hereunder which:
(a) Either
was or will be lawfully disclosed to the recipient by an independent third party
rightfully in possession of the Confidential Information; or
(b) Either
has been or will be published or generally known to the public in through no
fault or omission by any of the parties; or
(c) Was
independently known to the recipient prior to receipt from the disclosing party
and is not otherwise subject to confidentiality obligations, or independently
developed by the recipient thereafter, as demonstrably documented in written
records of the recipient; or
(d) Is
required to be disclosed by any of the parties to comply with court orders or
applicable laws, to defend or prosecute litigation or to comply with
governmental regulations, provided that such party takes reasonable and lawful
actions to avoid and/or minimize the degree of such disclosure and shall give
prompt notice to the disclosing party.
.
8
15. GENERAL
PROVISIONS
15.1. Force
majeure. Any failure or omission by a party to timely perform any
obligation under this Agreement shall not be deemed a breach of this Agreement;
to the extent such failure or omission directly results from a force
majeure. Force majeure is any cause which is not within the
reasonable control of the parties hereto, that they could not reasonably have
planned for and against which they have not protected themselves. Force majeure
includes notably, without limitation, fortuitous act, third party strike,
partial or complete interruption of work, lock-out, fire, rebellion,
interventions by military or civil authorities, compliance with regulations or
rules of any governmental authority, and act of war (declared or
not).
15.2. Illegality
of a provision. The eventual illegality or nullity of a section,
sub-section or paragraph does not affect the legality or validity of the other
sections, sub-sections or paragraphs neither the rest of the sections, unless
evident contrary intention in the text.
15.3. Modification
of the Agreement. This Agreement may be modified in whole or in part
by common agreement between the parties and solely in writing.
15.4. Titles. The
titles are used for order reasons and as accessories and do not affect the
significance or the reach of the sections it refers to.
15.5. Non-waiver. Except
for the provisions of this Agreement where the exercise of a right is
accompanied with a specific delay, the silence of a party, its negligence or its
lateness to exercise a right or recourse which is given to it or opened pursuant
to this Agreement must never be interpreted against such party as a waiver of
its rights and recourses.
15.6. Cumulative
and non-alternative. All rights mentioned hereto are cumulative and
not alternative. The waiver of the exercise of a right must not be interpreted
as a waiver of any other right.
15.7. Governing
Law. This Agreement shall be governed by the laws of the Province of
Quebec, without regard to conflicts of law principles.
15.8. Entire
Agreement. This Agreement expresses the entire agreement between the
parties hereto and no document, agreement or other form of engagement entered
prior to the date of signature of this Agreement shall be considered BIO to
amend or affect in any way the provisions of this Agreement. This
Agreement specifically supersedes and replaces the ONS Agreement, which upon the
Effective Date shall no longer be in effect.
IN WITNESS WHEREOF THE PARTIES HAVE
EXECUTED THIS AGREEMENT AT THE PLACE AND ON THE DATE FIRST ABOVE
MENTIONED.
CLEM-G PLYCRETE INC.
Clément
Guèvremont,
Clément Guèvremont,
President and CEO
PLYCRETE INC.
Madeleine Houle
Madeleine Houle
Corporate secretary
9
SCHEDULE
A
N/A
10
SCHEDULE
B
TRADEMARKS
N/A
11
SCHEDULE
C
APPROVED
DISTRIBUTORS
N/A
12