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Exhibit 10.4
LICENSE
AGREEMENT
This LICENSE AGREEMENT (“
Agreement ”) is made as of _________, 2008,
between and among The Hong Kong Winalite Group Limited, a Hong Kong
company (“ Winalite ”); and the following
(the “ Distributor ”):
Name of company:
_______________________
Country and location of legal organization:
______________________________
Distributor’s initials: __________
Winalite’s
initials: __________
Each of the foregoing is referred
to as a “ Party ” and together as the
“ Parties ”. Capitalized terms
not otherwise defined have the meanings assigned to them in
Exhibit A to this Agreement.
RECITALS
A.
By an Exclusive International
Distribution Agreement between the Parties dated as of ________,
2008 (the “ Distribution Agreement ”),
Winalite has appointed Distributor to be its exclusive
distributor within the Territory of the Products, as those terms
are defined in the Distribution Agreement.
B.
Winalite owns or has the right to
use certain Intellectual Property (as defined herein) in
connection with the marketing, sale and distribution of the
Products.
C.
In order to facilitate the
marketing, sale and distribution of the Products in the
Territory, Winalite desires to license to Distributor, and
Distributor desires to license from Winalite, the Intellectual
Property for the limited purpose and on the terms and conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration
of the mutual promises and covenants contained herein, and for
other good and valuable consideration, the receipt and
sufficiency of which are acknowledged by the Parties, the
Parties agree as follows:
AGREEMENT
1.
License of Intellectual Property
Rights.
(a)
Subject to Distributor’s
strict compliance with the terms of the Distribution Agreement,
Winalite hereby grants to Distributor an exclusive and
non-transferable (except to the extent permitted by the right of
sub-license set forth in Section 3 ) license during the
Term of this Agreement to market, sell and distribute the
Products in the Territory under the patents, trademarks, trade
names, marks, logos and brands, copyrights and applications
therefor, and other intellectual property applicable to the
Products set forth on Exhibit B , along with the Winalite
Brand (collectively, the “ Intellectual
Property ”).
(b)
Distributor will use the
Intellectual Property only in connection with the marketing,
sale and distribution of the Products within the Territory and
in accordance with this Agreement and the Distribution
Agreement.
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(c)
Distributor acknowledges that it
has no rights to any of the Intellectual Property except as
granted by this Section 1 . Should Distributor acquire
any rights in or to any Intellectual Property, whether by
operation of law or otherwise, Distributor will (i) at its cost
and expense, immediately upon the request of Winalite,
irrevocably, unconditionally and effectively, assign such rights
to Winalite, and (ii) irrevocably and unconditionally waive, in
favor of Winalite, any such rights which are not or cannot be so
assigned.
(d)
The Distributor will assure that
each reference to and use of any of the Intellectual Property is
in the form stipulated by Winalite.
(e)
The Distributor will observe any
directions given by Winalite as to colors and size of the
representation of the trademark, marks or logos of Winalite
Brand, including without limitation, their matter and
disposition on the Products and any leaflets, brochures or other
material and in any advertising material prepared by the
Distributor for the Products.
(f)
The Distributor will, save with
the prior approval of Winalite in writing, ensure that the
Winalite Brand is not used in conjunction with the name of the
Distributor or the name of any third party or in such a way as
to indicate that the Distributor or such third party has or have
(as the case may be) any rights of whatsoever nature in respect
thereof.
2.
License Fee.
In consideration for the rights
granted to it by Winalite under Section 1 , Distributor
will pay to Winalite a license fee (the “ License
Fee ”) as set forth on Exhibit C.
3.
Right of
Sub-license. Distributor may sub-license the Intellectual
Property only to Downline Distributors, as that term is defined
in the Distribution Agreement, but may not grant to any
sub-licensee any more right than are granted to Distributor by
Section 1 of this Agreement.
4.
Representations and
Warranties. Each Party
represents and warrants to the other, as to itself and not as to
the other, as follows:
(a)
It is a company duly organized
under the laws of the country identified in its address on the
signature page of this Agreement and has all requisite corporate
power and authority to enter into, deliver and perform its
obligations under this Agreement. When duly executed and
delivered by it, this Agreement will constitute an obligation
which is valid, binding on and enforceable against
it.
(b)
All corporate action necessary to
execute, deliver and perform its obligations under this
Agreement has been duly taken.
(c)
It has all necessary business and
other governmental licenses, permits and authorizations to
permit it to perform its obligations under this
Agreement.
5.
Confidential
Information .
Notwithstanding any other provision of this Agreement, the
Parties agree to maintain in confidence, and not to disclose to
any other Person, either during the Term of this Agreement or
during a period of five (5) years thereafter, any and all
Confidential Information furnished by a Party (the “
Disclosing Party ”) to the other Party (the
“ Receiving Party ”). “
Confidential Information ” means and
includes any information of any nature except for information
(i) which at the time of disclosure is, or subsequently becomes,
part of the public domain through no fault of the Receiving
Party, (ii) which at the time of disclosure, is already known to
the Receiving Party and the Receiving Party can prove such prior
knowledge, or (iii) which is subsequently disclosed on a
non-confidential basis to the Receiving Party by a third Party
whose receipt and disclosure does not constitute a violation of
any confidentiality obligation to the Disclosing Party.
Confidential Information may include, but will not be limited
to, processes, compilations of information, records,
specifications, cost and pricing information, customer lists,
catalogs, booklets, technical advertising and selling data,
samples, and the fact of the Disclosing Party’s intent to
manufacture, market, sell or distribute any new product, and
except for information which is public or general industry
knowledge, all information furnished by the Disclosing Party to
the Receiving Party will be considered to be Confidential
Information, whether or not specifically so designated. The
Receiving Party will take all reasonable steps to protect the
Confidential Information from unauthorized disclosure,
including, but not limited to, informing its employees in
writing of the confidential nature of the information and
binding those employees to maintain the confidentiality of the
information to the same extent as provided herein. The Receiving
Party further agrees not to use any Confidential Information in
any way, directly or indirectly, except as required in the
course of the performance of the terms of this Agreement and
approved in writing and in advance by the Disclosing
Party.
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6.
Compliance with
Laws . Each Party will at
all times and at its own expense (a) strictly comply with all
applicable laws, rules, regulations and governmental orders, now
or hereafter in effect, relating to its performance of this
Agreement, (b) pay all fees and other charges required by such
laws, rules, regulations and orders, and (c) maintain in full
force and effect all licenses, permits, authorizations,
registrations and qualifications from all applicable
governmental departments and agencies to the extent necessary to
perform its obligations hereunder.
7.
Term and Termination.
The term of this
Agreement (the “ Term
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