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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 act
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