TECHNOLOGY LICENCE AGREEMENT
NORTECH FOREST TECHNOLOGIES INC.
MACFARLAN SMITH LIMITED
68-73 Queen Street
TECHNOLOGY LICENCE AGREEMENT
NORTECH FOREST TECHNOLOGIES INC., incorporated under the laws of the State of
Delaware and having its office at 7600 West 27th Street, Suite B 11, St. Louis
Park, MN 55426, USA ("the Licensor")
MACFARLAN SMITH LIMITED, a Company incorporated in Scotland and having its
Registered Office at 10 Wheatfield Road, Edinburgh EH11 2QA, Scotland
(hereinafter referred to as "the Licensee")
(A) The Licensor is the owner of certain valuable know-how and intellectual
property rights relating to a product known as "Tree Guard".
(B) The Licensor has agreed to grant a licence of such know-how an intellectual
property to the Licensee on the terms and conditions of this Agreement.
NOW IT IS HEREBY MUTUALLY AGREED as follows:
1.1 In this Agreement the following terms shall unless the context
otherwise requires have the following meanings:
shall mean the last date of execution of this Agreement;
"First Sale Date"
shall mean the date the Licensee first places a Product on the market within
that part of the Territory comprising the European Union from time to time;
shall mean in relation to either party any circumstances beyond the reasonable
control of the party, including, without limitation to the generality of the
foregoing, any industrial action including strike, lock-out or boycott (except
of that party's workforce) national emergency, war or prohibitive government
regulations, act of God, flood, fire, earthquake or natural disaster, imposition
of judgement order, sanction or embargo;
"Intellectual Property Rights"
shall mean the Know-How and the copyright, design rights and all other
intellectual property rights of any nature in the Know-How and/or the Products;
shall mean all improvements or modifications or adaptations to any part of the
Intellectual Property Rights which may be made or acquired by either party
during the continuance of this Agreement;
" Know-How "
shall mean specifications, procedures, processes, manuals, instructions, quality
control procedures, physical and chemical properties, formulae, methods of
synthesis, analyses, environmental control information, regulatory control
information and all other technical data or information whatsoever relating to
or used in connection with the formulation, specification or manufacture of the
Products or relating to research into the Products or obtaining approval for
the Products that is in the possession or control of the Licensor including,
without prejudice to the generality of the foregoing, the information and
documentation set out in part 1 of the Schedule;
shall mean the premises of the Licensee in Edinburgh;
the Lump Sum Payment
shall mean the sum of USD150,000 payable pursuant to Clause 4. 1;
"Net Sales Income"
shall mean the invoiced ex-works price for the sale of the Products less:
(a) normal trade discounts and commissions actually granted other than
discounts for prompt payment;
(b) the costs of packaging, excluding the original containers for the
Product, insurance, carriage and freight; and
(c) sales taxes, but excluding taxes on profits or any other government
or statutory taxes or levies imposed upon such sales;
shall mean the range of Products manufactured and sold by the Licensee at the
Commencement Date under the name "Tree Guard" a general description of which
products is set out in part II of the Schedule;
shall mean each successive period of 3 months with the first Quarter commencing
on the First Sale Date;
shall mean, in respect of information to be held confidential by the Licensee
pursuant to Clause 10, the Know How and any other technical documentation or
information relating to the Product and any information relating to the
Licensor's business disclosed by the Licensor to the Licensee or acquired by the
Licensee pursuant to or in connection with this Agreement and in respect to
information to be kept confidential by the Licensor pursuant to Clause 1 O, any
information relating to the Licensee's finances, customers, potential customers,
products, prices or otherwise relating to its business and any other information
disclosed by the Licensee to the Licensor or acquired by the Licensor pursuant
to this Agreement;
shall mean the royalties payable by the Licensee to the Licensor pursuant to
shall mean the services to be provided by the Licensor to the Licensee pursuant
to Clause 3.2;
shall mean a third party to whom the Licensee has sub-licenced the rights
granted to it hereunder pursuant to Clause 14 but shall not include, for the
avoidance of doubt, a third party to whom only rights to manufacture the Product
on behalf of the Licensee as a sub-contractor are given;
shall mean the European Union as constituted at the Commencement Date together
with norway, Finland, Switzerland, Poland, Slovakia, Romania, Albania, the
Ukraine, Latvia, Lithuania, Estonia, the Czech Republic, the Russian Federation,
Hungary, Bulgaria, Liechtenstein and Andorra;
"the Trade Mark"
shall mean the name "Tree Guard";
shall mean US dollars.
1.2 Any reference to a Clause or Schedule is a reference to a clause of or
schedule to this Agreement.
1.3 Words importing the singular shall include the plural and vice versa.
1.4 Headings to clauses are inserted for convenience only and shall not
affect the interpretation of any clause.
2 GRANT OF LICENCE
2.1 Subject to Clauses 2.4 and 2.5, the Licensor hereby grants to the
Licensee an exclusive licence to use the Intellectual Property Rights
to manufacture, use, distribute and sell the Products under the Trade
Mark in the Territory subject to and on the terms and conditions
contained in this Agreement.
2.2 Subject to Clause 2.4, the Licensor agrees that it will not exploit the
Intellectual Property Rights or the Trade Mark in the Territory and
that it will not licence any third party to exploit the Intellectual
Property or the Trade Mark in the Territory.
2.3 Subject to Clauses 2.4 and 2.5, the Licensee agrees:
2.3.1 not to manufacture the Products using the Intellectual
Property Rights except in the Territory;
2.3.2 not to pursue an active policy of putting the Products on the
market, outside the Territory; and
2.3.3 not to put the Products on the market outwith the Territory in
response to unsolicited orders from outwith the Territory.
2.4 The Licensor's obligations under Clause 2.2 and the Licensee's
obligations under Clauses 2.3.1 and 2.3.2 shall remain in force until
the date 10 years from the First Sale Date or until the Know-How ceases
to be secret, whichever is earlier. Thereafter the Licensor and the
Licensee respectively shall no longer be bound by the said provisions
which shall not be enforceable.
2.5 The Licensee's obligations under Clause 2.3.3 shall remain in force
until the date 5 years from the First Sale Date or until the Know-How
ceases to be secret, whichever is earlier. Thereafter, the Licensee
shall no longer be bound by the said provisions which shall not be
2.6 At the request of the Licensee, the parties shall meet to discuss, in
good faith, an extension of the Licensee's rights under this Agreement
to countries outwith the Territory. The Licensee shall only be entitled
to such extension with the Licensor's prior written consent. On
reaching agreement pursuant to this clause on such extension to any
country or territory, that country or territory shall be deemed to be
part of the "Territory" for the purposes of this Agreement.
3 KNOW-HOW AND TECHNICAL SUPPORT
3.1 Within 7 days of signature of this Agreement, the Licensor will supply
the Licensee with the Know-How.
3.2 The Licensor shall provide such technical assistance to the Licensee as
the Licensee shall reasonably require to enable the Licensee to
familiarise itself with and understand the application of the Know-How,
to use the Know-How to manufacture the Product and to seek registration
of the Product. Such technical assistance shall comprise:-
3.2.1 telephone consultations with competent staff of the Licensor
to deal with questions raised by the Licensee, its employees
and any sub-licensees and sub-contractors regarding the
Know-How including resolution of problems regarding the
application and use of Know-How and registration of the
3.2.2 on-site assistance from the Licensor's technical staff at the
Licensee's Premises to train the Licensee's staff in the use
of the Know-How, at times to be requested by the Licensee and
agreed between the parties.
3.3 The technical assistance to be provided in accordance with Clause 3.2
shall be provided by the Licensor's staff who are competent in and
familiar with the Know-How. The Licensor shall make no charge to the
Licensee for such technical assistance and shall bear all costs
connected therewith except for reasonable travelling and accommodation
costs for the Licensor's staff visiting the Licensee's Premises which
shall be borne by the Licensee, providing that the Licensee makes the
arrangements for such travelling and accommodation and pays for such
travelling and accommodation directly.
4.1 The Licensee shall use its reasonable endeavours to seek regulatory
approval for commercialisation of the Product in each country in the
4.2 The Licensee shall be responsible at its sole cost and expense for
making applications to the appropriate bodies for such regulatory
approval in accordance with Clause 4. 1, carrying out any trials or
experiments required and for all other work involved in making such
applications, and seeking registration, provided that the Licensor
shall give the Licensee all reasonable assistance when requested by the
Licensee, at the Licensee's cost.
4.3 Unless the Licensee has obtained regulatory approval for
commercialisation of the Product in at least one country in the
Territory within 5 years from the Commencement Date:
4.3.1 subject to Clause 4.3.2 the Licensor shall be entitled to
terminate this Agreement pursuant to Clause 15.2;
4.3.2 the Licensor shall not be entitled to terminate this Agreement
at the end of the said 5 years if the Licensee has applied for
regulatory approval within the said 5 years but has not
obtained approval because of delays caused by the appropriate
regulatory bodies or their requirements or similar matters
outwith the control of the Licensee. In such event the said 5
years shall be extended by the period of time attributable to
5.1 In consideration, of the grant of the licence pursuant to clause 2.1,
the Licensee shall pay the Lump Sum Payment to the Licensor promptly
and within 14 days of receipt of the Know-How pursuant to Clause 3.1.
5.2 The Licensee shall pay to the Licensor, in addition to the Lump Sum
Payment and in consideration of the grant of the licence and the
provision of the Services by the Licensor, as royalties:
5.2.1 Subject to Clauses 5.3 and 5.4, 7% of the net Sales Income on
sales of the Product by the Licensee; and
5.2.2 7% of the net Sales Income on sales of the Product by
5.3 no royalties shall be payable by the Licensee on sales or disposals of
Product by the Licensee where these Products were purchased by the
Licensee from the Licensor.
5.4 Royalties payable pursuant to Clause 5.2 shall be payable for 10 years
from the First Sale Date provided that if during that 10 year period
the Know-How ceases to be secret through no fault on the part of the
Licensee and as a result the sale price of the Products falls, the
Licensee shall be entitled to request a reduction in the royalty rate
payable and the parties shall negotiate a reduced royalty rate which is
reasonable in light of the reduced sale price.
5.5 Royalties due by the Licensee to the Licensor shall be paid in Sterling
within 60 days of the end of each Quarter in respect of sums received
by the Licensee as net Sales Income from sales by it or from its
Sub-Licensees as net Sales Income from sales by them in the preceding
Quarter. The payment of Royalties will be accompanied by the
documentation set out in Clause 6 hereof. Where Products are sold in
currency other than Sterling, the rate of exchange to be used for
converting such other currency into pounds Sterling for the purposes of
calculating Royalties and shall be the rate of exchange set out in the
London Financial Times on the last working day of the Quarter for which
the relevant Royalties are to be paid.
5.6 If any sum due by the Licensee is not paid within the time limit set
out in Clause 5.5, interest shall be payable from the last date for
payment until actual payment (both before and after judgement) at a
rate of 2% per cent per annum above the base rate of the Royal Bank of
Scotland plc from time to time together with all expenses including
legal fees which the Licensor may incur in recovering the sum
5.7 All sums due under this Agreement shall be made in full after deduction
of taxes, charges and other duties that may be imposed provided that
the parties agree to operate in all respects necessary to take
advantage of such double taxation agreements as may be available.
6 KEEPING OF RECORDS AND RENDERING ACCOUNTS
6.1 The Licensee shall keep true and accurate records and books of account
containing all data necessary for the calculation of the Royalties.
Such records and books of account shall be retained by the Licensee for
one year from the end of the period to which they relate.
6.2 The Licensee shall prepare a statement in respect of each Quarter which
shall show for the period in question the total net Sales Income for
the Products sold by it and by any Sub-Licensees together with details
of all sales of the Products and the Royalties due to the Licensor.
Such statement shall be submitted to the Licensor within thirty (30)
days of the end of the Quarter to which it relates. If the Licensor
shall give notice to the Licencee within thirty (30) days of the
receipt of such statement that it does not accept the statement, it
shall be certified by an independent accountant appointed by agreement
between the parties or, in default of agreement within fourteen (14)
days, by the President for the time being of the Institute of Chartered
Accountants of Scotland. In the event that such certification shows
that there is a material error in the original statement, the Licensee
shall bear the cost of such certification. In all other circumstances
the costs of such certification shall be borne by the Licensor. Within
14 days of receipt of such certification, the parties shall make such
payments to each other (if any) as may be required so that the Licensee
has paid to the Licensor in the Quarter covered by such certification,
the royalties payable as set out in such certification.
6.3 On giving reasonable notice to the Licensee, the Licensor shall have
the right to appoint independent auditors to inspect and make copies of
all the Licensee's records and books of account relating to sales of
the Product by it and by Sub-Licensees to verify royalty calculations
and payments and the Licensee shall co-operate fully to enable such
inspection to proceed. In the event that any such inspection
establishes that the Licensee has not complied with its obligations
under this clause in a material respect then the cost of the inspection
will be met by the Licensee. In all other circumstances such costs
shall be met by the Licensor.
6.4 The terms of this clause shall remain in force (notwithstanding
Agreement) until settlement of all claims.
Once it has obtained necessary regulatory approval pursuant to Clause
4, the Licensee undertakes to use all reasonable endeavours to sell and
increase sales of the Products in those parts of the Territory where it
has obtained such approvals.
8 TRADE MARKS and PATENTS
8.1 During the continuance of this Agreement, the Licensee shall be
entitled to use the Trade Mark or such other mark or name as it shall
in its sole discretion determine in connection with the sale of the
Products in the Territory. The Licensee shall be entitled to seek
registration of the Trade Mark or such othermark or name as referred to
under paragraph 8.1 with all relevant Trade Mark Registries throughout
the Territory in its own name and at its own cost and expense.
8.3 The Licensee shall be entitled, at its own expense to seek patent
protection and make patent applications in respect of the Know-How or
any part thereof in the Territory or part thereof. The Licensor shall,
if requested by the Licensee, allow the Licensee to use its name in
connection with such patent applications and shall when requested by
the Licensee, sign all such documents and do all such things as may be
necessary to fully vest ownership of the patent applications or patents
granted pursuant thereto, in the Licensee. The Licensor shall have no
rights to the said patent applications or patents. The Licensor shall
lend such assistance to the Licensee as the Licensee may reasonably
request from time to time and at the Licensee's expense, in making or
pursuing such patent applications and in seeking the grant of such
9.1 If during the term of this Agreement the Licensor or the Licensee
develops an Improvement then it shall forthwith notify the other in
writing of the Improvement and shall disclose all necessary information
to permit exploitation of the Improvement pursuant to this Agreement.
9.2 Any Improvement developed by the Licensor shall become the absolute
property of the Licensor, the Improvement shall become part of the
Intellectual Property Rights and the Licensee shall be granted a
licence of the Improvement on the terms of this Agreement.
9.3 Any Improvement developed by the Licensee shall become the absolute
property of the Licensee provided that the Licensee grants to the
Licensor a royalty free non-exclusive licence to use such Improvement
in respect of the Products.
10.1 Each party shall at all times only use the Restricted Information of
the other for the purposes of furfilling its obligations pursuant to
this Agreement and shall keep the Restricted Information of the other
confidential and shall not disclose it to any person other than
employees (or in the case of the Licensee, subject to clause 14, to
SubLicensees) who may require it to enable it to exercise its rights
and obligations under this Agreement. Each party shall ensure that any
such employees shall have, before disclosure, entered into a
confidentiality undertaking with it in terms no less onerous than that
set out in this Agreement.
10.2 Any Restricted Information will no longer be subject to the
confidentiality obligation under this clause to the extent only that:
10.2.1 it is at the date of this Agreement, or hereafter becomes,
public knowledge through no fault of the receiving party; or
10.2.2 it can be shown by the receiving party, to the reasonable
satisfaction of the disclosing party, to have been known to it
prior to its being disclosed; or
10.2.3 is subsequently disclosed to the receiving party without
obligation of confidence by a third party owing no such
obligations in respect thereof.
10.2.4 a party is required by law or for regulatory purposes to
disclose such Restricted Information.
11 OWNERSHIP OF INTELLECTUAL PROPERTY AND WARRANTIES
11.1 The Licensor warrants to the Licensee that:
11.1.1 it is the owner of the Intellectual Property Rights and has
full right and title to grant the licences granted to the
Licensee pursuant to this Agreement;
11.1.2 subject to the information disclosed in Part III of the
Schedule, it has not granted any licences or rights to call
for licences or charges or securities over the Intellectual
Property Rights or the Trade Mark, it has not entered into any
other agreements or arrangements which would prevent it
entering into or performing its obligations pursuant to this
Agreement and it has obtained written consent to its entering
into this Agreement from all third parties from whom it is
legally obliged (by contract, statute or otherwise) to obtain
11.1.3 it has maintained and will maintain the Know-How (except to
the extent that it is already in the public domain or comes
into the public domain without its fault) as secret and
confidential at all times and has not disclosed and will not
disclose the Know-How to any third party except under normal
secrecy obligations or for regulatory purposes;
11.1.4 to the best of its knowledge and belief, having made due
enquiiy, the use by the Licensee of the Intellectual Property
Rights and the Trade Mark in accordance with the terms of this
licence will not infringe any third party intellectual
11.1.5 it has received, as at the Commencement Date, no notice of any
claims by any third party that the Intellectual Property
Rights or the Trade Mark are infringing or may be infringing
that third party's rights;
11.1.6 it has received, as at the Commencement Date, no notification
of any challenge to the Trade Mark in countries in which it is
registered and not aware of any reason why the Trade Mark may
be challenged in such countries; and
11.1.7 the Know-How will be sufficient to enable the Licensee to
manufacture the Products.
The Licensor shall indemnify and keep indemnified the Licensee against
any claims, losses, costs, damages and/or expenses (including legal
expenses) made against or incurred by the Licensee as a result of any
breach by the Licensor of the warranties set out in this Clause 1 1.
12 LIABILITY AND INDEMNITY
12.1 The Licensor makes no warranty in respect of the fitness for purpose of
the Products to be manufactured using the Intellectua1 Property Rights.
All conditions, warranties, terms and undertakings express or implied,
statutory or otherwise in respect of the Products are hereby excluded.
12.2 The Licensor shall have no liability to the Licensee or any third party
in respect of any claim regarding the Products.
12.3 The Licensee shall be exclusively responsible for all Products
manufactured, distributed or sold by it and all use of the Products and
the Licensee hereby undertakes and agrees to be solely responsible at
its own cost and expense for dealing with and for any liability arising
from any contractual, delictual, tortious or other claims or
proceedings concerning the Products, their manufacture, distribution,
sale, supply or use and, in particular, product liability claims or
proceedings save where any defect has arisen due to the Licensor's
negligence and has resulted in death or personal iniury.
12.4 The obligations of the Licensee under this Clause shall survive the
termination of this Agreement for whatever reason.
13 INTELLECTUAL PROPERTY - MAINTENANCE, RENEWAL AND PROCEEDINGS
13.1 If during the continuance of this Agreement, either party receives any
notice, claim or proceedings from any third party alleging infringement
of that third party's intellectual property rights by use of the
Intellectual Property Rights or the Trade Mark pursuant to this
Agreement in the Territory, it shall forthwith notify the other party
giving details of the notice, claim or proceeding. If such notice,
claim or proceeding is made against the Licensee, the Licensee shall
make no admission of liability and shall give the Licensor the conduct
of the defence of such notice claim or proceeding. The Licensor shall
deal with such notice, claim or proceedings at its sole cost and
expense, provided that it shall seek and act in accordance with legal
advice in the jurisdiction in which the claim is made. No Royalties
shall be payable BY THE LICENSEE DURING ANY period when it is prevented
by law from using the Intellectual Property Rights or the Trade Mark
pursuant to this Agreement as a result of such notice, claim or
proceedings or the settlement or resolution of such. The Licensee shall
when requested by the Licensor give reasonable assistance to the
Licensor in connection with such notice, claim or proceedings at the
13.2 If during the continuance of this Agreement, either party becomes aware
that a third party is infringing the Intellectual Property Rights in
the Territory, it shall advise the other. The Licensor shall seek legal
advice on action which can be taken to prevent such infringement.
13.2.1 If such legal advice confirms that legal action can be taken
and is likely to be successfull, the Licensor shall take such
action 21 days from receipt of such legal advice at its own
expense. If it fails to do so, the Licensee may take such
action and provided it acts in accordance with legal advice,
the Licensor shall indemnify the Licensee in respect of costs
and expenses incurred in such action and any damages recovered
shall be shared in an equitable manner. Except as provided in
this clause, the Licensee shall have no rights to take action
in respect of such infringement.
13.2.2 If such legal advice confirms that legal action cannot be
taken or is unlikely to be successful, the Licensor shall have
no obligation to raise proceedings against the alleged
14 ASSIGNATION, SUBCONTRACTING AND SUBLICENSING
14.1 neither party shall be entitled to assign, charge or transfer the
rights acquired pursuant to this Agreement without the prior written
agreement of the other party, provided that:
14.1.1 the Licensee shall be entitled to sub-contract the manufacture
of the Products on giving notification to the Licensor of the
identity of the contractor; and
14.1.2 the Licensee shall be entitled to sub-licence all the rights
licensed but hereunder provided that it obtains the prior
consent of the Licensor to sub-licence which consent shall not
be unreasonably withheld or delay provided the sub-licensee is
bound by obligations similar to and no less onerous than those
undertaken by the Licensee to the Licensor hereun. The
Licensee shall provide a copy of any proposed sub-licence to
the Licensor. Unless the Licensor indicates to the contrary
within 21 days of receipt of such licence, it shall be deemed
to have consented thereto.
14.1.3 Any sub-contract or sub-licence granted pursuant to this
Clause shall terminate automatically on termination of this
15.1 This Agreement may be terminated by either party forthwith by notice in
writing in the event of the other party:
15.1.1 committing a material breach of this Agreement which in the
case of breach which is capable of remedy shall not have been
remedied within 60 days of the receipt of a notice from the
other party identifiing the breach and requiring its remedy.
15.1.2 filing under Chapters 7 of the US bankruptcy laws or otherwise
entering into compulsory or voluntary liquidation or
compounding with or convening a meeting of its creditors or
having a receiver, administrator or administrative receiver
appointed over all or any substantial part of its assets or
taking or suffering any similar action in consequence of a
debt in any part of the world, or ceasing for any reason to
carry on business.
15.2 This Agreement may be terminated by the Licensor forthwith by notice in
writing in the circumstances set out in Clause 4.3, provided it has
given the Licensee 30 days notice of its intention to do so.
16 CONSEQUENCES OF TERMINATION
16.1 Upon termination of this Agreement:
16.1.1 the Licensee shall remain due to pay to the Licensor any sums
which have accrued, or which subsequently accrue, due
hereunder and shall not be entitled to reimbursement of any
such sums paid or any proportions thereof;
16.1.2 subject to payment of Royalties, the Licensee shall continue
to have the right for a period of three months from the date
of termination to perform contracts for the supply of Products
entered into before that date;
16.1.3 subject to payment of Roya1ties, the Licensee shall continue
to have the right for a period of three months from the date
of termination to perform contracts for the supply of Products
entered into before that date, subject to Clause 16.1.2 and
Clauses and 16.5, any rights accruing to the Licensee and to
the Licensor in terms of this Agreement shall lapse forthwith;
16.1.4 except if Clauses 16.5 apply, the Licensee shall forthwith
return to the Licensor or dispose of as the Licensor may
require, the Know-How and all other documents, papers and
other materials whatsoever in its custody) or control relating
to the Products or the manufacture, marketing or sale thereof
acquired by the Licensee in the course of this Agreement;
16.2 For the avoidance of doubt, upon termination of this Agreement by the
Licensor pursuant to Clause 1 5.2, the Licensor shall have no right
whatsoever to make any claim against the Licensee for damages,
compensation or otherwise.
16.3 On termination of this Agreement by the Licensor pursuant to Clause
15.1 the Licensor shall be entitled to require the Licensee by service
of notice on the Licensee within 7 days of the date of termination to
transfer to the Licensor any trade mark registrations the Licensee has
obtained for the Trade Mark for consideration equivalent to the value
of the registered trade marks as determined by an independent valuer
agreed by the parties together with the costs actually incurred by the
Licensee in obtaining the registrations.
16.4 On termination of this Agreement by the Licensee pursuant to Clause
15.1.1, the Licensor shall give and shall procure that any liquidator,
administrator, receiver or other similar official acting for or on
behalf of the Licensor shall give the Licensee first right of refusal
to obtain a worldwide licence to use the Intellectual Property Rights
to manufacture, market, distribute, use or sell the Products under the
Trade Mark in exchange for a reasonable royalty or other consideration,
taking into account sums already paid by the Licensee to the Licensor
prior to the date of termination, as may be agreed.
16.5 Such Clauses as are capable of continuing in effect following
termination of th Agreement shall continue in force in accordance with
their respective terms.
16.6 Subject as otherwise provided and to any rights and obligations which
have accrued prior to termination, neither party shall have any further
obligations to the other under this Agreement.
17 FORCE MAJEURE
17.1 If either party is affected by an event of Force Majeure it shall
forthwith notify the other party in writing of the nature and extent of
17.2 neither party shall be deemed to be in breach of this Agreement, or
otherwise be liable to the other, by reason of any delay in
performance, or non-performance, of any of its obligations hereunder to
the extent that such delay or non-performance is due to any event of
Force Majeure and the time for performance of that obligation shall be
extended accordingly provided that that party has notified the other
party and has used and continues to use reasonable endeavours to bring
the event of Force Majeure to an end and/or to minimise its effect.
17.3 notwithstanding the terms of Clause 1 7.2, if an event of Force Majeure
shall continue for a period of 3 months or more the party which is not
affected by the event of Force Majeure shall be entitled to terminate
this Agreement on service of 3 months written notice upon the other
party without penalty.
In the event that any provision or term of this Agreement shall become or be
declared illegal, invalid or unenforceable for any reason whatsoever including
without limitation by reason of the provisions of any legislation or laws or by
reason of any decision of any Court or other body or authority having
jurisdiction over the party, such terms or provisions shall be divisible from
this Agreement and shall be deemed to be deleted from this Agreement in the
jurisdiction in question.
19 ENTIRE AGREEMENT/AMENDMENT/WAIVER
19.1 This Agreement embodies the entire Agreement and understanding of the
parties and supersedes all prior oral or written agreements,
understandings or arrangements relating to the subject matter of this
Agreement. neither party shall be entitled to rely on any agreement,
understanding or arrangement which is not expressly set forth in this
Agreement and each party expressly excludes any liability therefor.
19.2 This Agreement shall not be amended, modified, varied or supplemented
except in writing signed by the duly authorised representatives of the
19.3 No failure or delay on the part of either party hereto to exercise any
right or remedy under this Agreement shall be construed or operated as
a waiver thereof nor shall any single or partial exercise of any right
or remedy under this Agreement preclude the exercise of any other right
or remedy or the further exercise of such right or remedy as the case
20 PROPER LAW
A1l matters pertaining to the validity, construction and performance of
this Agreement shall be governed in accordance with the law of Scotland
and both parties agree to submit to the exclusive jurisdiction of the
Any notice required to be given under this Agreement shall be deemed to
be given if it is in writing and sent by facsimile or by registered
mail in an envelope, in either case addressed to the party to whom it
is being given, to its facsimile or to its address as shown below or to
such other facsimile or address duly notified to the other party.
If given to the Licensor to:
Nortech Forest Products Inc.
7600 West 27th Street
St. Louis Park, MN 55426
For the attention of: Tom de Petra, C.E.O.
Facsimile number: 001 612 922 3865
If given to the Licensee, to:
MACFARLAN SMITH LIMITED
Edinburgh EH11 2QA
Facsimile number: 0131 337 9813
For the attention of: The Managing Director
All notices shall be deemed to have been received, if given by facsimile on the
day of despatch provided that a confirmation of facsimile is available and, if
given by mail, two (2) days after despatch.
IN WITNESS WHEREOF these presents and the preceding 21 pages together with the
Schedule in 3 parts hereto have been executed as follows:
SUBSCRIBED on behalf of
MACFARLAN SMITH LIMITED at
SUBSCRIBED on behalf of NORTECH FOREST TECHNOLOGIES INC.
1. Details of the formulation of the Product.
2. Details of the manufacturing process for the Product.
3. Details of the ingredients of the Product, including their specification
and their supphers.
4. All stability information.
5. Details of in-process tests.
6. Details of all validated assay procedures.
7. Details of analytical reference standards.
8. Copies of all regulatory packages submitted anywhere in the world relating
to the Products.
9. Details of all experimental protocols relating to the Products and data and
reports on those experiments (except if any such data or reports were
produced by the Licensee).
10. Copies of all correspondence with the regulatory authorities throughout the
world relating to registration of the Product.
The Product "Tree Guard" is the product with EPA Registration number 66676-1 and
is more particularly described in that EPA Registration. In general terms, it is
a premixed, ready to use animal repellant that sprays on milky and clear dries
and contains Bitrex as the active ingredient.