EXCLUSIVE LICENCE INTELLECTUAL PROPERTY WITH GUARANTEE

Transcription

1 EXCLUSIVE LICENCE OF INTELLECTUAL PROPERTY WITH GUARANTEE

2 . Exclusive 1 Licence of Intellectual Property with Guarantee 2 T HIS AGREEMENT is made on the.. day of 20YY BET WEEN: [Name of Company] a company incorporated in the State of [Name of State] and having its registered office at [Address] ( the Company ) of the first part AND: [Name of Licensee] a company incorporated in the State of [Name of State] and having its registered office [Address] at [( the Licensee ) of the second part AND: [Name of Guarantor] of [Address] in the State of [Name of State] ( the Guarantor ) of the third part. RECITALS A. T he Company is the owner of Intellectual Property in relation to the making and distribution of [Name of Product] Products. B. T he Guarantor has requested the Company to permit the Licensee to use and exploit the Intellectual Property and to distribute the Products (as defined below). C. T he Company has agreed to grant to the Licensee an exclusive licence to use and exploit the Intellectual Property in the territory and to distribute the Products. NOW THE PARTIES AGREE as follows: Interpretation 1. (1) In this Agreement the following definitions apply: Ancillary Products means products supplied by the Company to the Licensee for sale including those set out in Sch 1; Commencement Date means the day of, 20 ; Confidential Information means all information passing from the Company to the Licensee relating to the manufacture, marketing and distribution of the Products from the Commencement Date including but not limited to trade secrets, drawings, know-how, techniques, instructions, business and marketing plans, software, arrangements, customer information and lists, concepts, designs, plans, models and formulae; Get Up means the get up used in relation to the trade marks; Intellectual Property includes but is not limited to patents, the trade marks, copyrights, processes, confidential know-how, registered designs, operation manuals, building designs, dress designs, furnishings, equipment, advertising and promotional materials of which the Company is the author, proprietor, owner or licensee; Net Sales Price means the arm s length set selling price of the Licensee s gross invoiced sales of the products less all discounts, allowances, transportation charges, packaging costs, insurance and taxes directly based on sale and/or time of payment. Premises means the premises described in Sch 2; Product Making Equipment means equipment provided by the Company to the Licensee for the manufacture of the Products on the Premises as set out in Sch 3; Products means [description of product(s)]; Territory means the area described in Sch 4; (2) A reference to persons includes corporations; words including singular numbers include plural numbers and vice versa; words including a gender include all genders. (3) A reference in this Agreement to a statute or a section of a statute includes all

3 amendments to that statute or section passed in substitution for the statute or section referred to and incorporating any of its provisions. (4) Except for the purpose of identification headings have been inserted in this Agreement for the purpose of guidance only and are not part of this Agreement. Commencement and term 2. T his Agreement commences on the Commencement Date and continues subject to any rights of early termination under cl 20 for a period of years. Licence 3. (1) The Company grants to the Licensee an exclusive licence with no right to grant sub - licences for the T erm to reproduce, use and exploit the Intellectual Property, the trade marks and the Confidential Information in the T erritory. (2) T he Company must instruct the Licensee in: (a) the production and manufacture of the Products; (b) the use of the Product Making Equipment; and (c) the presentation and sale of the Produc ts from the Premises. (3) T he Company from time to time during the T erm of this Agreement will provide the Licensee lists of Ancillary Products for distribution by the Licensee from the Premises. Licence fee 4. (1) In consideration of the licence granted under cl 3 the Licensee must pay the Company during the T erm of this Agreement % (GST exclusive) of the Net Sales Price of each unit of the Product sold by the Licensee calculated at the end of each calendar month. It is payable within fourteen (14) days of the end of the month by cheque made payable to the Company. (2) For the purpose of calculating licence fees, the Licensee must submit to the Company, at the Licensee s expense at the time stipulated in cl 4(1), a detailed statement certified as correct by a director, or other responsible person representing the Licensee. T he Statement must indicate the quantity of the Products sold or supplied by the Licensee during the period set together with such other information specified in Sch 6. (3) T he Licensee must keep true and proper records and accounts of all matters connected with the sale or supply of the product. (4) T he Licensee must permit the Company (by any authorised person) to inspect the statements, records and accounts described at cl 4(2) and 4(3) and to take copies of the statements records and accounts at all reasonable times. T he Company or any such person so authorised by it must treat any information obtained from such records and accounts as confidential. Minimum performance requirements 3 5. (1) T he Licensee must manufacture and sell sufficient Product in the T erritory to cause the amount of licence fees remitted to the Company under this Agreement to equal or exceed the amounts set down in Sch 7 in respect of each calendar quarter after the Commencement Date. (2) In the event the Licensee does not in successive calendar quarters remit sufficient licence fees to equal the amount set down in Sch 7 in respect of those quarters, then on the last date when a licence fee payment was due under this Agreement in respect of those quarters the licence granted in cl 3 automatically reverts to a non-exclusive licence. (3) T his clause is not intended to guarantee a minimum licence fee to the Company rather it is to guarantee a minimum performance by Licensee, therefore the Company will not permit the Licensee to pay to the Company the amount set down in Sch 7 in respect of any year unless there has been sufficient sales of the Product to support the payment of that

4 amount as a licence fee under this Agreement. Trading terms 6. Each order of the Ancillary Products accepted by the Company constitutes a separate contract, the terms and conditions of which is set out in Annexure A accompanying this Agreement. Covenants of Licensee 7. T he Licensee agrees that it must: (1) at its own expense decorate and design the premises in accordance with the Company s drawings, colour scheme and manner recommended and approved by the Company; (2) at its own expense provide uniforms for all staff working on the Premises in accordance with the Company s dress designs, colour scheme and manner recommended and approved by the Company. T he Licensee must use its best endeavours to ensure such uniforms are worn at all times by staff working on the Premises; (3) hire and supervise efficient, competent, sober and courteous managers and employees for the operation of the business. Also, set and pay employee wages, commissions and incentives with no liability on the Company; (4) keep and maintain the Premises at all times according to the directions and to the recommendations of the Company and in a clean and tidy state, free of litter and refuse; (5) maintain at all times on the Premises at places and in script and style as directed by the Company the following words: [Name of Licensee] ; (6) give prominence to the trade marks and trade and brand names used by the Company in connection with the Products and the Ancillary Products in all displays and catalogues and other promotional material referring to the Products undertaken or published by the Licensee; (7) use its best endeavours to promote and sell the Products and Ancillary Products in the T erritory; (8) not dilute, adulterate or repackage any of the Ancillary Products except with the express written consent of the Company; (9) not manufacture from the Premises or sell any Product other than the Ancillary Products unless expressly authorised in writing by the Company; (10) not disclose any of the Confidential Information to any third parties except employees of the Licensee who require the Confidential Information to manufacture the Products. In that event, the Confidential Information is disclosed on the basis that the employees agree to preserve the confidentiality of the Confidential Information; (11) comply with all reasonable directions of the Company as to quality control and storage of the Products and the Ancillary Products; (12) maintain the Premises in accordance with all Statutes, Ordinances or By-laws whether of Commonwealth, State or Local Government applicable to the Premises or the business conducted. Also, abide by the conditions of any licence or permit in relation to the Premises or business conducted on them; (13) not directly or indirectly engage in or have any interest in an enterprise which does any business which competes with the Company s business. Covenants of the company 8. (1) T he Company must install the Product Making Equipment on the Premises on th e Commencement Date. (2) T he Company must provide the Licensee person(s) for the purposes of training in the use and operation of the Product Making Equipment and the manufacture of the Products using the Product Making Equipment for a period not exceeding weeks. (3) the Company in good faith must promptly and regularly supply to the Licensee within seven (7) days of a reasonable request for same, or such shorter period where a more immediate response is reasonably necessary in the opinion of the Licensee (but without

5 limitation): (a) advice on the technical characteristics of the Products and the Product Making Equipment; (b) full details of each step in the processing and manufacture of the Products and the use of applicable Confidential Information; (c) operating manuals relating to the Product Making Equipment used in the manufacture of the Products to ensure the full exploitation of the licences granted under this Agreement; (d) all details which after the Commencement Date become known to or owned by the Company including (but without limitation) general information concerning the production and manufacture of the Products and the use of the Confidential Information and all changes to the Confidential Information previously supplied. (4) At the request of the Licensee the Company will provide personnel at the Premises of the Licensee for a period of weeks. All reasonable and proper expenses incurred by the Company s personnel in dealing with each such request, including transportation and accommodation, are to be met by the Licensee. (5) Representatives of the Licensee (who have first signed a secrecy agreement in terms reasonably required by the Company) are privileged to visit the Premises of the Company for the purpose of obtaining full partic ulars and technical assistance in the application of the Confidential Information and data to be disclosed pursuant to this Agreement. T he Licensee must pay and bear all expenses incurred by its representatives making such visits and are responsible for loss or damage resulting from injury or death to its representatives during such visits unless caused by the negligence of the Company. T he Licensee indemnifies the Company against any such loss or damage. (6) Nothing in this clause is deemed to require either party to furnish information or technical data which is not suitable for commercial use or for which it does not have the right (but only to the extent that it does not have the right) to disclose for use within the T erritory. Standards 9. T he Licensee must ensure that the Products are manufactured and sold by the Licensee in accordance with the Company s directions and that they comply with the standards of quality, production and processing set by the Company and with the requirements and specifications of any applicable statutory standards and regulations enacted in the T erritory. Exclusive licence 10. Subject to cl 5 the Company during the T erm of this Agreement must not grant any other licence for the manufacture, sale or distribution of the Products and the Ancillary Products in the T erritory. Relocation of premises 11. (1) If it is necessary to relocate the Premises within the T erritory, any new site for its Premises must be approved by the Company. (2) T he new site must be improved and equipped in accordance with standards of the Company at the time of the relocation. Promotional and advertising material 12. T he Company will supply on terms to be agreed any promotional and advertising material in relation to the Products and the Ancillary Products. Insurance 13. T he Licensee will insure in its name in respect of the following risk: (a) destruction or damage to the Premises (if any) by fire, flood, force majeure and natural disaster;

6 (b) loss of equipment, goods, part of the Premises, contents of the Premises, the Licensee s employees property on the Premises by larceny, theft, arson or unlawful removal; (c) public liability for not less than $ in respect of accidents arising out of an occurrence on the Premises or attributable to an occurrence on the Premises causing death or bodily injury to any person who is not employed or engaged by the Licensee; (d) liability as an occupier to persons having claims against the Licensee as a result of the law relating to occupier s liability; (e) workers compensation and employer s liability in respect of any liability, loss, claims or proceedings whatsoever whether arising by virtue of any statute relating to workers compensation or employer s liability or at common law by any person employed by the Licensee in connection with the licensed business; (f) product liability in respect of all claims, demands, actions, proceedings or prosecutions which may be brought, commenced or prosecuted in consequence or relating to or arising out of the manufacture, sale or commercial utilisation of the Products where such claims, demands, actions or prosecutions arise for a reason other than defective design. Licensee s indemnity 14. (1) T he Licensee must promptly advise the Company in writing of any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs, charges and expenses which may be brought or claimed against the Licensee or the Company or in respect of which the Licensee or the Company may become liable arising out of the manufacture, promotion, sale, supply or other use of the Product or the promotion of the Ancillary Products by the Licensee, its servants or agents. (2) T he Licensee indemnifies and agrees to keep the Company indemnified against any actions, suits, claims, demands, proceedings, losses, damages, compensation, sums of money, costs (including solicitor and client costs), charges and expenses arising out of the manufacture, promotion, sale, supply or other use of the Product or the promotion of the Ancillary Products by the Licensee, its servants or agents. T he defence of any litigation to which this clause applies is under the control of the Licensee, its solicitors and counsel and all legal costs and expenses of any such litigation are borne by the Licensee. T he Company, its solicitors and counsel may participate in such litigation at the expense of the Company. Right of inspection 15. T he Company has the right to send its representative to enter the Premises at all reasonable times during business hours for the purpose of making periodic inspections to ascertain if all the provisions of this Agreement are being observed by the Licensee, to inspect the Premises and the Product Making Equipment and to test, sample and inspect the Products to ensure that the Products are being manufactured by the Licensee to the Company s standards. T his includes the right to review, analyse and make corrective recommendations on all phases of business management, from purchasing and inventory control through financial, personnel and merchandising management. Trade Marks 16. (1) T he Licensee acknowledges the Company s title to the T rade Marks and each of them in Australia and elsewhere and the validity of the Company as proprietor and undertakes not to do any act which would or might: (a) invalidate or dispute the said title; (b) invalidate registration of any of the T rade Marks subject to T rade Mark application by the Company; (c) support an application to remove the T rade Marks or any of them as T rade Mark applications or registered T rade Marks;

7 (d) cause any Registrar of T rade Marks to require a disclaimer of a monopoly in the T rade Marks or any of them or assist any other corporation or any persons directly or indirectly in any such act. (2) T he Licensee will not use in its business any other T rade Mark or logo which is similar to or substantially similar to or so nearly resembles any of the T rade Marks as to be likely to cause deception or confusion. (3) T he Licensee will use its best endeavours to preserve the value and validity of the T rade Marks and in particular will: (a) endeavour to create, promote and retain goodwill in the business of manufacture, distribution and sale of the Products and distribution and sale of the Ancillary Products; (b) use each of the T rade Marks in the manner appearing in Sch 5 and as provided in this Agreement; (c) not use the T rade Marks accompanied by words describing the Products and the Ancillary Products unless the T rade Marks are capitalised or otherwise distinguished from surrounding and adjacent text. Company s warranties 17. (1) T he Company warrants to the Licensee that: (a) neither the execution of this Agreement nor the performance by the Licensor of its obligations will cause it to be in breach of any agreement to which is it a party or is subject; (b) the Company has and for the duration of this Agreement will continue to have full right and title to the Intellectual Property and the T rade Marks; (c) the use and licence for use by the Licensee of the Intellectual Property and the T rade Marks, does not infringe any patent, T rade Mark, registered design, copyright or similar or other industrial commercial property rights of any person nor give rise to payment by the Licensee of any royalty to any third party or to any liability to pay compensation; (d) all designs, specifications, plans, know-how drawings and other trade secrets and Confidential Information supplied to the Licensee by the Company will be to the best of the knowledge and belief of the Company true, accurate, reliable and up-to-date. (2) T he Company indemnifies the Licensee against any losses, costs, actions, claims, demands, expenses, judgments, court orders or other liabilities arising directly or indirectly out of or in connection with any claim made or threatened, whether by legal proceedin gs or otherwise, against the Licensee by a third party on the ground that by virtue of rights to which such third party lays claim, under letters patent or copyright (whether registered as a design or not) or any other similar right or claim including (but without limitation) rights arising from the disclosure under cover of confidence, such third party is entitled to prevent or interfere with the free use of any or all of the Intellectual Property and Confidential Information by the Licensee pursuant to this Agreement. T his indemnity extends to any claim against the Licensee by its customers in respect of any similar loss or injury and court fees and expenses, damages and costs and loss or injury suffered by compliance with an injunction ordered on the part of such customer. Infringements 18. (1) In the event the Licensee learns of any infringement or threatened infringement of any of the Intellectual Property or T rade Marks licensed under this Agreement or any common law passing-off by reason of imitation of Get-Up or otherwise or that any third party alleges

8 or claims that any of the T rade Marks are liable to cause deception or confusion to the public, the Licensee must immediately notify the Company in writing giving particulars of the infringement. T he Company must then seek the opinion of senior counsel practising in the relevant part of the T erritory in the law in respect of Intellectual Property rights as to the prospects of success of an action against the infringer(s). Unless such senior counsel advises there is little prospect of success in the action the Company will promptly institute and prosecute an action against the infringement. (2) T he proceeds from any judgment or settlement made by the Company in any action brought by it under cl 18(1) must reimburse the Licensee of all expenses incurred by it or them in assisting the Company in prosecuting the action and to pay the Company s costs and expenses. T he remainder of the proceeds are to be shared by the Company and the Licensee equally. (3) If the Company fails within ninety (90) days of receiving notice to institute and prosecute an action against any infringement of the Intellectual Property or the T rade Marks then the Licensee has the right, at the Licensee s expense, to institute and prosecute such an action in the Company s name. (4) T he proceeds from any judgment or settlement made by the Licensee in any action brought by the Licensee under cl 18(3) must reimburse the Company for all costs and expenses incurred by the Company in such prosecution. T he remainder is shared by the Licensee and the Company equally. (5) T he Licensee and the Company must each execute all documents and do all things reasonably necessary to aid and co-operate in the prosecution of any such actions brought by the other under cls 18(1) and 18(3). Guarantee 19. (1) As separate severable covenants, guarantees and indemnities the Guarantor guarantees to the Company by way of continuing guarantee the due and punctual payment by the Licensee of the amounts payable to the Company under this Agreement or any contract for sale of the Products or Ancillary Products pursuant to this Agreement and the due performance and observance of each and all the T erms and conditions of this Agreement. (2) In the event of the default by the Licensee in the payment of any monies under this Agreement or any contract for sale of the Products or Ancillary Products pursuant to this Agreement or any other breach of the terms and conditions of this Agreement by the Licensee for any reason the Guarantor must immediately pay any moneys due to the Company without the Company having to make any demand of or claim upon the Licensee. In respect of any other breach the Guarantor must indemnify the Company against any loss occasioned by the Licensee s breach without the Company having to claim for that loss against the Licensee. (3) T he liability of the Guarantor is not to be affected by the Company granting any time, concession or any indulgence to, or making any composition with, or waiving any breach or default by the Licensee, or the Company neglecting or forbearing to enforce such terms or those of this provision or any moratorium or other period staying or suspending by statute or by the order of any court or other authority all or any of the Company s rights, remedies or recourse. (4) If any payment by or on behalf of the Licensee is avoided or set aside under any law relating to insolvency or otherwise, liability under this guarantee includes payment to the Company by the Guarantor of a sum equal to the amount of the payment so avoided or set aside. (5) Although as between the Licensee and the Guarantor the Guarantor is a surety for the Licensee it is agreed that as between the Guarantor and the Company the guarantee is a principal obligation and is not to be treated as ancillary to any other obligation howsoever created and may be enforced against the Guarantor notwithstanding any laches, acts or omissions whatsoever on the part of the Company.

9 (6) A statement in writing made up from the books of the Company and signed on behalf of the Company by any of its officers or any other duly authorised person as to the amount due or owing by the Licensee to the Company as at the date mentioned in such statement without it being necessary to produce any books or vouchers to verify the same and without retrospection be prima facie evidence that such amount is due and payable and of all of the matters therein stated. Termination 20. (1) T his Agreement may be terminated by the Company upon the happening of any of the following events: (a) the Licensee refuses or neglects to pay promptly any sum payable under this Agreement, including moneys payable for the Products and the Ancillary Products pursuant to the Company s invoices on their due dates; (b) the Licensee fails to maintain the Premises and the staff uniforms in accordance with this Agreement or fails to maintain quality control in respect of the Products and the Ancillary Products in accordance with the Company s standards of quality production and processing or in accordance with the directions of the Company; (c) the Licensee fails to observe and perform any other provisions of this Agreement; and (d) the Licensee fails to rectify and make good such refusal, neglect, failure or default within twenty-one (21) days after the Company has given to the Licensee written notice requiring same to be rectified and made good. (2) T his Agreement may be terminated by the Licensee if the Company fails to observe and perform any provision of this Agreement and fails to rectify and make good such failure within days after receiving written notice requiring the same to be rectified and made good. (3) Waiver by either party of a breach of any provision of this Agreement does not constitute the waiver of any subsequent breach of the provision or waiver of the provision itself. Consequences of termination 21. In the event of termination the Licensee must: (1) cease to use the trade marks and Get-Up in relation to the Premises, hold out that the Licensee or the Premises has any connection, association or affiliation with the company or the Products or the Ancillary Products and immediately on termination cease to sell any Product bearing the trade marks or any of them; (2) repaint and redecorate the Premises including changing the Get-Up and colour scheme so that the Premises are no longer reproductions of the Intellectual Property. Deliver up to the Company the Intellectual Property and other and all copies of in the possession, custody or control of the Licensee; (3) cease to use the uniforms or alter the uniforms so that they no longer resemble the Company s dress designs and deliver up to the Company all the designs or copies in the possession, custody or control of the Licensee; (4) deliver up to the Company all Confidential Information and copies within the possession, custody or control of the Licensee; (5) cease to use all information provided by the company during the T erm of this Agreement or at any time whether Confidential Information or otherwise, it being acknowledged by the Licensee that such information is part of the goodwill and reputation of the Company. Neither the Licensee nor the Guarantor, nor any Company associated with or controlled by the Licensee can thereafter use the T rade Marks, Get-Up, works or Confidential Information. General

10 22. (1) Waiver. Any waiver or forbearance in regard to the performance of this Agreement operates only if in writing and applies only to the specified instance, and does not affect the existence and continued applicability of the terms of it thereafter. (2) Entire agreement. T his Agreement embodies all the T erms binding between the parties and replaces all previous representations or proposals not embodied in the agreement. (3) Assignment. (a) T he Licensee must not assign all or any of its rights contained in this Agreement without the prior written consent of the Licensor, which consent the Licensor may grant or not in its absolute discretion. (b) T he Licensor may at its discretion assign all or any of its rights contained in this Agreement. (4) Applicable law. T his Agreement must be read and construed according to the laws of the State of [Name of State] and the parties submit to the jurisdiction of that State. (5) Amendment. T his Agreement may not be varied except in writing signed by the parties. (6) Severability. If any provision of this Agreement is held by a court to be unlawful, invalid, unenforceable or in conflict with any rule of law, statute, ordinance or regulation, the validity and enforceability of the remaining provisions are not affected. (7) Notices. All notices must be in writing and given by any one of the following means: (a) by delivering it to the address of the party on a business day during normal business hours; (b) by sending it to the address of the party by pre-paid airmail post or if airmail post is not available by ordinary post; or (c) by sending it by facsimile transmission to the facsimile number of the party and on the next business day giving it by either of the means set forth in para (a) or (b) above. (8) A notice is deemed to be given and received: (a) if given in accordance with cl 22(7)(a) on the next business day after the day of delivery in the place of delivery; (b) if given in accordance with cl 22(7)(b) five clear business days after the day of posting in the place of delivery; (c) if given in accordance with cl 22(7) on the next business day after transmission in the place of delivery. (9) T he address and facsimile numbers referred to in cl 22(7) in the absence of notice to the contrary are set out below: The Company: Address: Facsimile: The Licensee: Address: Facsimile: [Name of Company] [Address] [Facsimile Number] [Name of Licensee] [Address] [Facsimile Number] (10) Further agreements. Each party must execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as necessary to give effect to this Agreement. (11) GST means a goods and services tax as defined in A New T ax System (Goods and Services) Act (a) In respect of a taxable supply, the Licensee must pay to the Licensor an additional amount equal to the Licence Fee multiplied by one (1) plus the prevailing GST rate. T he additional amount referred to in this clause is payable at the same time and in the same manner as the Licence Fee made under cl 4.

11 (b) All stamp duties and governmental charges arising out of or incidental to this Agreement are the responsibility of and must be paid by the Licensee. EXECUT ED as an Agreement. SCHEDULE 1 T he Ancillary Products: SCHEDULE 2 T he Premises: SCHEDULE 3 Product Making Equipment: SCHEDULE 4 T he T erritory: SCHEDULE 5 Trade mark Registration number Date of registration Class Goods/ Services SCHEDULE 6 Information to be supplied with the Licensee s statement. SCHEDULE 7 Minimum performance requirements: Executed by [Name of Company] Director Director/Company Secretary Name (please print) Name (please print) or... Sole Director and Sole Company Secretary... Name (please print) Executed by [Name of Licensee] Director Director/Company Secretary Name (please print) Name (please print) or... Sole Director and Sole Company Secretary... Name (please print)

12 SIGNED by [Name of Guarantor] ) in the presence of: ) [Signature of Witness] [Signature of Guarantor] ANNEXURE A SUPPLY OF PRODUCT T ERMS AND CONDIT IONS General provision 1. All orders of Ancillary Products placed with the Company are subject to these terms and conditions, and to the extent these have not been varied by written agreement between the Company and the Licensee these are the only terms and conditions on which orders are accepted. Terms of payment 2. (1) Subject to the rights of the Company in cl 2(3) below full payment is to be made within thirty (30) days from the final day in the month in which an invoice is issued ( the Due Date ). (2) In the event that payment is not made on the Due Date, the Company is entitled, without further notice to the Licensee, to charge interest on the amount outstanding at the rate of per annum from that date until such time as the invoice is paid in full. (3) T he Company may, in its absolute and unfettered discretion, require that the Licensee make payment in full at the time of any order of Ancillary Products. Delivery 3. (1) Delivery of the goods to the Licensee or to such person (including a carrier) nominated by the Licensee constitutes both delivery to and receipt of the Ancillary Products by the Licensee. (2) T he Company reserves the right to deliver by instalments, and each instalment is deemed to be sold under a separate contract. Failure to deliver any instalment does not entitle the Licensee to repudiate a contract in relation to any other instalment of the same order. (3) Delivery dates are based on normal expectancy and are approximate. Although the Company will use its best endeavours to deliver at the time stipulated, the time of delivery is not of the essence of the contract unless otherwise expressly agreed in writing by the Company. Delay 4. T he Company will make every effort to effect delivery as quoted but will not be liable for any loss, damage or harm of any nature whatsoever suffered by the Licensee or any other person arising directly or indirectly from delay in delivery. Return 5. No returns of any Ancillary Products will be accepted without prior agreement in writing being obtained from the Company. Force majeure 6. (1) T he Company will not be liable for any failure or omission to carry out or observe any of the conditions of this contract if such failure or omission was caused by circumstances beyond the Company s control, such as but not limited to acts of God, fire, acciden t,

13 Title interruptions to energy supplied, strike, raw material shortage, mobilisation, war whether declared or undeclared. (2) In the event that the Company s performance of its contracted obligations is affected by one or more of the events referred to in the prec eding clause it will use its best efforts to restore itself to a position where it can perform its said obligations. 7. T itle in and beneficial ownership of the Ancillary Products remains with the Company (notwithstanding delivery of such Ancillary products to the Licensee) until the Licensee has paid the full price of such Ancillary Products and all other sums whatsoever due to the Company. Pending such payment the following provisions of this condition are applicable to such Ancillary Products: (1) T he Licensee at all times in its fiduciary capacity must hold the Ancillary Products for the Company s benefit. (2) T he Licensee must mark and keep the Ancillary Products so as to identify them clearly as the property of the Company. (3) T he Company is entitled at any time during normal business hours by its servants or agents at the Licensee s expense to enter upon the Licensee s Premises and to recover and dispose of the Ancillary Products. No claim by the Licensee against the Company will be made in respect of such entry or disposal save to recover the Company any balance due to the Company after the Company has disposed of the Ancillary Products and recouped all sums due from the Licensee to the Company. Risk 8. Risk for any loss or damage to or deterioration of the Anc illary Products arising from whatever cause is borne by the Licensee from the time of delivery, as determined under cl 3 of these terms and conditions. In the event that the Licensee has not paid for the Ancillary Products and has therefore not acquired title to the same, any insurance policy on the Ancillary Products whilst in transit is effected by the Licensee in the name of the Company. General 9. Variations from these conditions are only valid when authorised in writing by both the Company and the Licensee. Severability 10. If any clause or part thereof is held invalid or unenforceable then such clause or part thereof is deemed deleted from this contract and the contract shall otherwise remain in full force and effect. Jurisdiction 11. T his contract is governed by and construed in accordance with the laws of the State of [Name of State] and the parties submit to the jurisdiction of the courts of that State.