TRANSLATION FOR CONVENIENCE ONLY - NOT LEGALLY
BINDING
WATER BANK OF AMERICA INC.
ANTIROUILLE METROPOLITAIN CANADA
LTD.
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WATER
BANK OF AMERICA INC. , legal person duly incorporated pursuant to the
Canada Business Corporations Act, having its head office at 5 Place
Ville Marie, Suite 1108, Montreal, Province of Quebec, H3B 2G2,
herein .represented by Mr. Jean-Jean Pelletier, duly authorized as
he so declares;
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(hereinafter
referred to as “WBOA”)
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4287762
CANADA INC., legal
person duly incorporated in virtue of the Canada Business
Corporations Act, having its head office at 12271 Route 11, Village
Blanchard, New-Brunswick, E8P 1R4, represented herein by Mr. Bruno
St-Onge, duly authorized to act herein as he so
declares;
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(hereinafter
referred to as “CANADA INC.”)
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ANTIROUILLE MÉTROPOLITAIN CANADA
LTÉE , legal
person duly incorporated pursuant to the Canadian Business
Corporations Act, having its head office at 3175 Thibeau Blvd.,
Trois-Rivières, Province of Quebec, G8T 1G4, duly represented
by Mr. Bruno St-Onge, duly authorized to act herein as he so
declares;
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(hereinafter
referred to as the “INTERVENANT”)
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WHEREAS on February 11, 2006, WBOA sold to the
INTERVENANT all but not less than all the shares issued and in
circulation from the capital stock of CANADA INC.;
WHEREAS CANADA INC. presently uses the logo and trade
mark “Ice Rocks” which are apposed on water bottles of
various sizes;
WHEREAS WBOA is the proprietor of the trade mark
“Ice Rocks” and of the logo “Ice Rocks”
(hereinafter referred to as the “INTELLECTUAL
PROPERTY”) which reproduction of the trade mark “Ice
Rocks” and its logo is annexed hereto as Annex
“A”;
WHEREAS CANADA INC. wishes to acquire from WBOA the
right to use the INTELLECTUAL PROPERTY and WBOA wishes to license
to CANADA INC. the right to use the INTELLECTUAL
PROPERTY;
WHEREAS the parties hereto recognize the essentialness
to set out the terms and conditions relating to the use of the
INTELLECTUAL PROPERTY by CANADA INC., in writing;
WHEREAS CANADA INC. understands and appreciates the
importance of the INTELLECTUAL PROPERTY for WBOA;
WHEREAS WBOA committed itself in virtue of a Spring
Water Supply Agreement and in virtue of an Agreement for the
Manufacture of Secured Spring Water Ice Cubes and Water Bottles,
entered into between the same parties herein on February 11, 2006,
not to associate the trade mark “Ice Rocks” to its
products which contain treated water (i.e.: water bottles and
secured ice cubes containing treated water).
THE
PARTIES AGREE TO THE FOLLOWING:
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The
above-mentioned preamble shall form an integral part of the present
Agreement.
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When utilized
by the present Agreement or any modification thereof, the following
expressions have the meaning which are attributed to them
hereinafter:
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“EFFECTIVE DATE” means, unless an
express disposition to the contrary exists in the present
Agreement, the date on which the last parties to these presents
signed this Agreement;
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“AGREEMENT” means, the present
Agreement and Annex “A” attached hereto;
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“TERM OF
THE PRESENT AGREEMENT” means, the initial term stated at
paragraph 3.1 of these presents.
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ARTICLE 3 - NOMINATION AND GRANTING OF A
LICENSE
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Under reserve
of the methods enunciated in the present Agreement, WBOA grants to
CANADA INC. and CANADA INC. accepts from WBOA the right and
authorization to use the INTELLECTUAL PROPERTY on a non-exclusive
basis, solely for the purpose of embottling and packing of spring
water bottles of various sizes in New-Brunswick;
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Under reserve
of the provisions contained in the present Agreement, it is
strictly prohibited for CANADA INC. to use the INTELLECTUAL
PROPERTY or to permit its utilization or its use.
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ARTICLE 4 - TERM OF THE
AGREEMENT
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Subject to
CANADA INC. not being in default in virtue of the present
Agreement, the present Agreement shall remain in force for a period
of twenty (20) years starting from the effective date and
terminating on February 11, 2026;
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In the event
that CANADA INC. would be in default pursuant to the present
Agreement, the present Agreement will be terminated in accordance
with Article 11 of these presents. In that event, CANADA INC., will
immediately cease using the INTELLECTUAL PROPERTY and shall convey
to WBOA, in writing, within thirty (30) days following the sending
of the notice provided for at Article 11 of the present Agreement,
a complete inventory of all bottles bearing the INTELLECTUAL
PROPERTY (hereinafter referred to as the “INVENTORY”).
WBOA will be entitled to send a representative on premises in order
to verify the correctness of the INVENTORY, which INVENTORY will
have to be liquidated without delay.
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ARTICLE 5 - RESPONSIBILITIES AND OBLIGATIONS OF
CANADA INC.
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CANADA INC.
understands, recognizes and agrees that the INTELLECTUAL PROPERTY
is important for WBOA. Consequently, CANADA INC.:
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Shall execute
its obligations pursuant to the terms of the present Agreement,
loyally, honestly and with diligence and shall deploy all
reasonable efforts in commerce in order to promote the INTELLECTUAL
PROPERTY;
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Shall utilize
the INTELLECTUAL PROPERTY with care, assiduity and
effectiveness.
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In
consideration of the privileged, contractual relationship between
the parties, no license fee or royalty payments to CANADA INC.
shall be charged for the use of the INTELLECTUAL
PROPERTY.
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ARTICLE 7 - PROTECTION OF THE INTELLECTUAL
PROPERTY
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CANADA INC.
acknowledges and declares that WBOA is the sole title holder of the
rights relating to the INTELLECTUAL PROPERTY. Furthermore, CANADA
INC. acknowledges that the Agreement and/or the use of the
INTELLECTUAL PROPERTY shall not have in any circumstance, the
effect of conferring any right whatsoever to CANADA INC. in the
INTELLECTUAL PROPERTY except for the right to use said INTELLECTUAL
PROPERTY in conformity with the provisions set forth in the present
Agreement. CANADA INC. is prohibited to use a reduced or modified
or abbreviated form of the INTELLECTUAL PROPERTY or otherwise use
the INTELLECTUAL PROPERTY in a manner in which CANADA INC. conveys
that it is the proprietor of the INTELLECTUAL PROPERTY. During the
course of the term of the present Agreement, nor at any time
following its termination, CANADA INC. shall not, directly or
indirectly, attempt to obtain the registration of the INTELLECTUAL
PROPERTY in whatever place in the world or attempt to lower the
value of the good will pertaining to the INTELLECTUAL
PROPERTY;
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Without
limiting the scope of the foregoing, CANADA INC.
undertakes:
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to sign, be it
simultaneously with the signature of the present Agreement or
without delay upon WBOA’s request, all agreements and/or all
documents which WBOA deems necessary for the protection of its
interests and its rights relating to the INTELLECTUAL PROPERTY and
to respect all legislation governing the present agreement (i.e.;
laws relating to the protection of the commercial names, trade
marks, etc.);
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to abstain from
using the INTELLECTUAL PROPERTY, or any variant of the INTELLECTUAL
PROPERTY, in a manner to integrate it in its corporate name or in
its commercial designation or in any other way other than what is
provided for in the present Agreement, with exception to the
regulatory norms applicable to the contrary.
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CANADA INC.
shall use the INTELLECTUAL PROPERTY in a manner in which to
adequately protect all of WBOA’s rights. CANADA INC. is
prohibited from taking any measures susceptible to render the
INTELLECTUAL PROPERTY null, to harm WBOA’s rights or to
create rights which are opposed to those of WBOA;
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No property
rights in the INTELLECTUAL PROPERTY are transferred to CANADA INC.
in virtue of the present Agreement;
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With the
exception of the use of the INTELLECTUAL PROPERTY as stipulated in
the present Agreement, CANADA INC. shall conduct business under its
own corporate name and conclude all contracts, banking
arrangements, securities, documents and other acts or agreements
solely under its own corporate name. CANADA INC. shall enter its
own corporate name on all purchase orders, cash receipts and
stationery, and shall advise each supplier and all other person
with which it conducts business, that it is an independent
contractor and th
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