EXHIBIT 10.3
IPIX TRADEMARK/SERVICE MARK LICENSE AGREEMENT
This
IPIX Trademark/Service
Mark
License
Agreement
(hereinafter,
"Agreement") is entered into as of the effective date set forth below
(hereinafter, "Effective Date") by and between IPIX Corporation, a Delaware
corporation (hereinafter, "Licensor"), and AdMission Corporation,
a Delaware
corporation (hereinafter, "Licensee").
WHEREAS,
Licensor is the owner of and has the right to use and license
others the right to use the trade
name, trademark and service mark IPIX,
including a U.S. Trademark Application Serial No.:
78/463,342 for "IPIX"
filed
on August 6, 2004, Reg. No.: 2,462,085 for IPIX (Design),
Reg. No.: 2,261,417
for IPIX and certain other trademarks and
business brands, the
details of which
are attached hereto as Exhibit 1 (hereinafter
referred to
collectively as
the
"Licensed Mark") in the United States and
other countries throughout the world;
WHEREAS,
Licensee is the
purchaser of certain
of the tangible
assets of
Licensor's AdMission business unit, exclusive of any use relating to the
security, surveillance, military and/or police fields
(hereinafter,
"Security
Sector") under the terms of an agreement
entitled "Asset Purchase Agreement" by
and between IPIX Corporation as "Seller",
and Licensee as the "Buyer";
WHEREAS,
Licensor is willing to license the Licensed Mark to Licensee;
and
WHEREAS,
Licensee is interested in using the Licensed Mark on the terms
set
forth herein;
NOW THEREFORE,
in consideration of
the mutual promises made herein and for
good and valuable consideration, Licensor
and Licensee agree as follows:
ARTICLE I
LICENSE
1.1 Licensor hereby grants to Licensee on the terms and subject to
the
conditions of this Agreement a non-exclusive, royalty-free license to use the
Licensed Mark for a term of eighteen (18) months from the Effective Date
(hereinafter, "Term"); provided, however, that Licensee shall be
permitted to
use the Licensed Mark for an additional six (6) months to phase out the
use of
the Licensed Mark for IPIX AdMission installations in existence prior to the
Effective Date of this Agreement.
1.2 Licensee
agrees to use the
Licensed Mark in
accordance with the
IPIX
Admission Usage Guidelines attached hereto
as Exhibit 2 and made part hereof.
1.3 Licensor
grants to Licensee a license to use the Licensed Mark in those
countries or jurisdictions in which the
Licensor has registered or does register
the Licensed Mark (the "Territory"). Nothing herein shall be deemed to
create
any obligation on the part of the
Licensor to register the Licensed Mark in any
country or jurisdiction.
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1.4 Licensor
grants to Licensee a
license to use the Licensed Mark only in
connection with "Company's Marketplace Definition." Licensee will not conduct
any business activities under the Licensed Mark other than those sectors and
activities covered by "Company's Marketplace Definition", and specifically
Licensee represents and warrants it will not use the Licensed Mark in the
Security Sector. For the purposes of this
Agreement,
"Company's
Marketplace
Definition" shall have the meaning set forth
in the Patent Purchase and License
Agreement by and between the Licensor and
the Licensee dated as
of February 11,
2005.
ARTICLE II
GOODWILL
2.1 Licensee
expressly recognizes and acknowledges that all use of the
Licensed Mark and all goodwill connected
therewith shall inure to the benefit of
Licensor.
2.2 Licensee
shall not use the Licensed Mark in any other countries outside
the Territory, in any other locations,
in any other manner,
in connection with
any other goods and services, or for any other purposes other than those set
forth above.
ARTICLE III
LICENSEE'S OWN MARKS
3.1 Licensee
shall develop a new
product name and mark to replace IPIX and
plan for implementation of that new name and mark prior to
the expiration
of
this Agreement. Licensee shall notify Licensor of
the new product name and mark
prior to its introduction and supply Licensor with Licensee's plan for
implementation of the new name and mark within twelve (12) months of the
Effective Date of this Agreement.
Licensee expressly agrees it will not adopt
the trademark IPIX or any confusingly similar name or mark as its new
product
name and mark.
3.2 Licensor
acknowledges it
assigned all right, title and interest in and
to the mark ADMISSION and its common law
rights, including
goodwill
associated
therewith, to Licensee, pursuant to the
Asset Purchase Agreement.
3.3 Licensee shall have the right to use its own marks, advertising
expressions, and signs together with the Licensed Mark when promoting,
advertising or marketing products and/or
services covered by this Agreement, or
separately when engaging in promotion,
advertising and
marketing activities for
goods and services unrelated to Company's
Marketplace
Position. The Licensed
Mark shall not be combined with marks or
other intellectual
property owned by
Licensee or any third party in such a way
as to diminish the
separate identity
of the Licensed Mark, except as otherwise provided in the IPIX AdMission
Usage
Guidelines.
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ARTICLE IV
QUALITY CONTROL
4.1 In order to
preserve the inherent value of the Licensed Mark, Licensee
agrees to use its best efforts to ensure the products and services being
promoted, marketed and sold by Licensee
under the Licensed Mark pursuant to this
Agreement shall be of a quality
reasonably
comparable to similar
products and
services promoted, marketed and sold by Licensor
immediately prior to
the sale
of assets to Licensee under the Asset
Purchase Agreement.
4.2 It is
expressly understood
that the quality
control standards being
adhered to include compliance with all federal, state, and local laws and
regulations in all material respects relating to Company's Marketplace
Definition described in Section 1.4 above.
Furthermore, use of the Licensed Mark
on goods and services shall be in a manner that does not offend the sense of
propriety prevailing in the community in which such products
and services are
marketed.
4.3 Upon request, Licensee agrees to assist Licensor to the extent
reasonably necessary to verify Licensee's compliance with the quality
control
provisions of this Agreement so long as
such verification does
not unreasonably
interfere with Licensee's regular business.
This assistance shall
include, but
shall not be limited to, reasonable review of representative advertising and
other promotional uses of the Licensed Mark; visits to any and all
locations
where the Licensed Mark is displayed;
review of all customer
complaint files;
and review of any complaints by federal,
state or local authorities.
4.4 Licensor and
Licensee acknowledge
that they are equally
aware of the
outstanding image, reputation and goodwill attached to the Licensed Mark
and
each share a common interest in protecting
and preserving such image, reputation
and goodwill. Licensee shall therefore
exercise its best
efforts to perpetuate
said image, reputation and goodwill.
It is agreed that
Licensee shall have the
right to use the Licensed Mark in
television advertising, Internet web sites and
advertising, outside signs, inside signs,
stationery,
newspaper advertising,
business cards, forms, telephone directory listings,
corporate names,
flyers,
brochures, magazines, public and private advertising and
promotional purposes,
displays and any other manner of use in the ordinary course of its business
which will not be inconsistent with the use of identification marks by other
similar businesses, and Licensee will not impair unreasonably the image,
reputation and goodwill of the Licensed
Mark by any such use.
ARTICLE V
INDEMNITY
5.1 Licensee
shall be responsible for and agree to indemnify
and defend
Licensor, its affiliates, its parent companies, and all of their officers,
directors, agents, and employees, and to hold each of them harmless
from any
claims, demands, causes of action or
damages, including attorneys' fees, arising
out of or in connection with the Licensee's
breach of this
Agreement or the use
by Licensee or anyone under Licensee's direct or indirect control of the
Licensed Mark or arising out of the
performance or advertising of any service or
activity conducted by Licensee or anyone under
Licensee's
direct or indirect
control under the Licensed Mark, notwithstanding any approval which may have
been given by Licensor. Licensee shall be kept fully
informed of the conduct of
each such claim, demand or cause of action.
This section shall not apply to
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