Equipment and Technology License Agreement - eMerge Interactive Inc. and Excel Corp.
EQUIPMENT AND TECHNOLOGY LICENSE AGREEMENT
THIS EQUIPMENT AND TECHNOLOGY LICENSE AGREEMENT (this "Agreement") is
made and entered into as of March 12, 2003 (the "Effective Date"), by and
between eMerge Interactive, Inc., a Delaware corporation (the "Manufacturer"),
and Excel Corporation, a Delaware corporation (the "Licensee").
RECITALS
A. Pursuant to that certain Joint Development Agreement between
Manufacturer and Licensee, dated January 25, 2002 (the "Development Agreement"),
Manufacturer has entered into an agreement with Licensee regarding the
development of its VerifEYE Carcass Inspection System; and
B. Licensee desires to have Manufacturer install the VerifEYE Carcass
Inspection System in its Schuyler, Nebraska beef processing facility (the
"Facility"). In this regard, Licensee desires to license certain equipment and
technology and other intellectual property from Manufacturer relating to the
VerifEYE Carcass Inspection System, and Manufacturer desires to license such
equipment and technology and other intellectual property to Licensee, upon the
terms and conditions contained in this Agreement.
C. The parties acknowledge that this Agreement is a prototype license
agreement that pertains only to the initial deployment of the VerifEYE Carcass
Inspection System in the Facility. In this regard, the parties understand that
future agreements between the parties relating to the licensing of similar
equipment and technology will be upon different terms and conditions, including
term and pricing.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and conditions
herein contained, and intending to be legally bound, the parties mutually agree
as follows:
1. License, Term, Fees.
(a) Grant. Manufacturer hereby grants to Licensee a non-exclusive
license to utilize the equipment and technology described in "Products and
Services" on Exhibit A (the "Equipment") during the Term under all intellectual
property rights in the equipment and technology including, but not limited to,
all rights held by Manufacturer under U.S. 5,914,247, on the terms and
conditions set forth in this Agreement. Manufacturer further grants to Licensee
a non-exclusive license under all copyrights in any works of authorship provided
by Licensee to Manufacturer ("Works") to reproduce, display, perform, or make
derivative works from such Works in the context of Licensee's use of the
Equipment and in determining the performance specification as set forth in
Section 6.
(b) Term. The term of this Agreement (the "Term") commences on
the date of this Agreement and ends upon the third anniversary of the Date of
Acceptance of the Equipment (as defined in Exhibit A under "Payment Schedule"),
unless earlier terminated in accordance with the terms of this Agreement.
(c) Fees. License fees for the Equipment shall be payable in
the amounts, at the times and in the manners described in "License Price" and
"Payment Schedule" on Exhibit A (the "License Fees"). All amounts due under this
Agreement shall be paid to Manufacturer at its address as specified in this
Agreement or at such other place as Manufacturer may designate in writing,
without notice or demand, and without abatement, setoff, counterclaim, or
deduction of any amounts whatsoever, except as otherwise provided in this
Agreement. All amounts due and owing to Manufacturer under this Agreement but
not paid on the due date thereof shall bear interest at the rate of the lesser
of: (i) twelve percent per annum; and (ii) the maximum lawful interest rate
permitted under applicable law. Such interest shall accrue on the balance of
unpaid amounts from time to time outstanding from the date on which portions of
such amounts become due and owing until payment thereof in full. Any service
fees shall be discounted from Manufacturer's standard rates by an amount of five
percent.
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(d) Termination Option. Licensee has the option to terminate this
Agreement, without penalty, at the end of the first year of the Term. If
Licensee elects to terminate this Agreement, Licensee must provide written
notice to Manufacturer at least 60 days prior to the end of the first year of
the Term. Notwithstanding the foregoing, this termination option will expire and
be of no further force and effect upon Licensee or any of its affiliates placing
an order with Manufacturer for equipment and/or technology that is similar to
that covered by this Agreement.
(e) Right of First Refusal. Licensee will have the right of first
refusal regarding the installation of Manufacturer's Equipment production units
five through twelve (with the Equipment provided under this Agreement being
production unit one). This right is triggered upon the acceptance by a potential
customer of a quotation or letter of intent from Manufacturer for production
unit five that shows the pricing and material transaction terms. Upon acceptance
by the potential customer, Manufacturer will provide Licensee with notice of the
pending installation, along with the pricing and material terms of that
transaction. Upon receipt of that notification, Licensee will have a period of
five business days to notify Manufacturer in writing of its intent to exercise
its right of first refusal with respect to that production unit and to agree
with Manufacturer upon the pricing and material terms of the transaction (which
pricing and material terms, other than terms specific to the potential
customer's location or installation requirements, will in no event will be less
favorable than those provided in such quotation or letter of intent). In the
event Licensee provides that notice and agrees with Manufacturer upon the
pricing and material terms within that period, Licensee will then have a period
of thirty business days to execute a license agreement with Manufacturer for
that production unit on substantially similar terms and conditions of this
Agreement and with the pricing and material transaction terms agreed to by the
parties during the notification period. Also in such an event, Licensee will
then have a right of first refusal with respect to the next production unit, up
to and including production unit twelve. In the event Licensee fails to provide
a timely notice of its intention to exercise its right of first refusal with
respect to production unit five, or any subsequent production unit subject to
this right, or is unable to agree with Manufacturer upon pricing or material
transaction terms within the notice period applicable to any production unit
subject to this right, Licensee's right of first refusal will terminate with
respect to that and any subsequent production units. In addition and
notwithstanding the foregoing, all rights of first refusal provided under this
section will terminate six months from the Date of Acceptance.
3. Time of Performance. Manufacturer agrees to begin performance of
its obligations upon the execution of this Agreement promptly, and agrees that,
subject to Section 15 (Risk of Loss), Section 26(e) (Force Majeure) or the acts
or omissions of Licensee, the Equipment will be delivered to Licensee at the
Facility, undamaged and in good working order, no later than April 11, 2003 (the
"Delivery Due Date"). Manufacturer and Licensee agree to communicate and to meet
in good faith during the time of performance to discuss the status of the
project and to help ensure that the Delivery Due Date is met.
4. Damages for Late Delivery. Subject to delays caused in whole or in
part in connection with or through the operation of Section 15 (Risk of Loss),
Section 26(e) (Force Majeure) or the acts or omissions of Licensee, Manufacturer
agrees to pay Licensee the amount of $500.00 for each day by which the actual
date of delivery of the Equipment at the facility exceeds the Delivery Due Date,
up to a maximum of $10,000.00. Any such amount shall be payable exclusively
through deductions from the License Fees.
5. Purchase and Acceptance: Limitation of Warranties by Manufacturer.
(a) Manufacturer warrants that the Equipment shall meet the
descriptions and criteria and shall be as warranted as set forth on Exhibit A.
Manufacturer further warrants that (i) all work shall be performed in a good,
workmanlike and professional manner and (ii) the Equipment shall be (x) of the
highest grade and quality unless otherwise specified and shall conform to the
specifications, drawings, samples, or other description furnished by
Manufacturer or specified by Licensee, (y) fit and sufficient for the purpose
disclosed by Manufacturer, and (z) of good material and workmanship and free
from defect. Manufacturer further warrants that if the Equipment is subject to
the federal "Occupational Safety and Health Act" of 1970, as amended ("OSHA"),
or OSHA's state equivalent, or the rules and regulations thereunder that, at the
time of delivery, the Equipment will, to the reasonable knowledge of
Manufacturer, conform to all applicable standards and requirements set forth in
OSHA or rules and regulations in effect at the time of delivery. Manufacturer
further warrants that it has rights to grant a sublicense under U.S. 5,914,247
to Licensee in order to allow Licensee to use the Equipment to fullest extent
allowed under this Agreement and that Manufacturer will notify Licensee promptly
in the event Manufacturer's right to grant such
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sublicense is in danger of being terminated or has been terminated. Manufacturer
expressly disclaims all other warranties.
(b) Manufacturer and Licensee specifically agree that the
Equipment is provided as an addition to the Licensee's food safety procedures
only, and not as a replacement for such procedures. The Equipment is designed to
detect varying levels of plant-based organic contamination which can potentially
be transferred from the meat animal hide and/or digestive tract onto the meat
surface, and could potentially contain the bacteria commonly found in the
digestive tract or on the hide which can cause food borne illnesses.
Manufacturer and Licensee specifically acknowledge that the Equipment does not
detect bacteria, viruses or parasitic organisms. Accordingly, and in addition to
the limitations set forth in the Agreement, Licensee agrees that, should
Manufacturer be sued for personal injury allegedly caused by the existence of
bacteria, virus or parasitic organisms in a product sold by Licensee, Licensee
shall defend, indemnify and hold harmless Manufacturer and Manufacturer's
Representatives as set forth in Section 13 of the Agreement.
(c) NEITHER PARTY, NOR ITS TRANSFEREES OR ASSIGNS, SHALL BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES OR FOR ANY
INTERRUPTION OF SERVICE OR LOSS OF BUSINESS. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, NO REPRESENTATION OR WARRANTY BY A PARTY AS TO THE EQUIPMENT OR
ANY OTHER MATTER BY A PARTY AS TO THE EQUIPMENT SHALL BE BINDING ON THAT PARTY.
6. Technical Performance of the Equipment. In the spirit of a
mutually cooperative development project involving newly patented technology,
both parties agree to employ commercially reasonable efforts toward ensuring
maximum performance from the Equipment. Furthermore and as a direct result of
the aforementioned, both parties agree to together formulate, within 60 days of
the Date of Acceptance, a mutually acceptable performance specification (such as
detection levels and equipment reliability) for the Equipment which is
descriptive of the Equipment's in-line performance capabilities on a consistent
basis, which does not disclose Licensee Confidential Information and which
Licensee can acknowledge as representing a new quality-control standard for the
meat packing industry. Upon acceptance of the performance specification by
Licensee, Licensee shall grant Manufacturer full rights to disclose said
performance specification thereafter to any and all parties, accurately and at
will.
7. Representations.
(a) Licensee hereby represents that, with respect to this
Agreement: (i) the execution, delivery and performance thereof by Licensee have
been duly authorized by all necessary corporate action; (ii) the individual
executing such document is duly authorized to do so; and (iii) such document
constitutes a legal, valid and binding obligation of Licensee, enforceable in
accordance with its terms, subject to applicable bankruptcy law and equity.
(b) Manufacturer hereby represents that, with respect to this
Agreement: (i) the execution, delivery and performance thereof by Manufacturer
have been duly authorized by all necessary corporate action; (ii) the individual
executing such document is duly authorized to do so; and (iii) such document
constitutes a legal, valid and binding obligation of Manufacturer, enforceable
in accordance with its terms, subject to applicable bankruptcy law and equity.
8. Title. Manufacturer shall at all times retain title to the
Equipment, and Licensee shall not represent otherwise to any person or entity.
All documents of title and evidences of delivery shall be delivered to
Manufacturer. Licensee shall not change or remove any insignia or lettering that
is on the Equipment or that is thereafter placed thereon indicating
Manufacturer's ownership thereof; and at any time during the term of this
Agreement, upon request of Manufacturer, Licensee shall affix to the Equipment,
in a prominent place, labels, plates or other markings supplied by Manufacturer
stating the owner of the Equipment. Manufacturer is hereby authorized by
Licensee to file or record and refile and rerecord Uniform Commercial Code
Financing Statements setting forth Manufacturer's interest in the Equipment.
Licensee shall indemnify Manufacturer and defend Manufacturer's title against
all persons claiming against (through actions other than actions of
Manufacturer) or through Licensee, at all times keeping the Equipment free from
any legal process or encumbrance whatsoever resulting from, by, or under any
acts of Licensee including, but not limited to, liens, attachments, levies and
executions, and shall give Manufacturer immediate written notice thereof and
shall indemnify Manufacturer from any loss caused thereby.
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Licensee shall execute and deliver to Manufacturer, upon Manufacturer's request,
such further instruments and assurances as Manufacturer deems reasonably
necessary or reasonably advisable for the confirmation or perfection of
Manufacturer's rights hereunder. Licensee acknowledges that this Agreement does
not confer on Licensee any rights to use Manufacturer's graphic designs,
copyrights, trademarks, trade dress, trade secrets, know-how or any other
intellectual property owned or controlled by Manufacturer that is not expressly
included in the definition of Confidential Information or "Equipment." Such
rights may only be conferred on Licensee in a separate written license agreement
executed by both parties.
9. Care and Use of Equipment. Manufacturer shall maintain and service
the Equipment as described in "Maintenance and Service" and "Improvements" on
Exhibit A. In all other respects, except for damage or repairs due to the acts
or omissions of Manufacturer or its employees, agents or contractors, Licensee
at its own cost and expense shall maintain the Equipment in good operating
condition, repair and appearance, and Licensee shall protect the same from
deterioration, other than normal wear and tear. Licensee shall use the Equipment
in the regular course of business only, within its normal capacity, without
abuse, and in the manner contemplated by the parties as of the date of this
Agreement. Licensee shall comply with all laws, ordinances, regulations,
requirements and rules with respect to the use and operation of the Equipment,
and shall not make (except in conjunction with Manufacturer in accordance with
Section 10 (Upgrades and Additions)) any modification, alteration or addition to
the Equipment. Neither Licensee nor its employees, agents or representatives
shall tamper with, disassemble, revise, engineer or otherwise examine the manual
workings of the Equipment. If through the negligence of Licensee or the breach
of this Agreement by Licensee repairs are required of Manufacturer then Licensee
shall reimburse Manufacturer for all reasonable costs incurred by Manufacturer
in making such repairs or performing such maintenance, if Licensee has not made
such repairs or performed such maintenance within a reasonable time following
Manufacturer's written notice to Licensee. Manufacturer shall have the right
during normal business hours, upon reasonable prior notice to Licensee and
subject to applicable laws and regulations, to enter the Facility in order to
inspect, observe or, upon an Event of Default (as defined below), remove the
Equipment, or otherwise protect Manufacturer's interest, and Licensee shall
cooperate fully in affording Manufacturer the opportunity to do the same.
Licensee shall permit Manufacturer to review all documentary and electronic
information relating to the Equipment and the operation of it.
10. Upgrades And Additions. Additions, modifications, alterations and
upgrades to the Equipment shall be conducted only as described in "Improvements"
on Exhibit A, and each shall be conducted only with the consent of and by
Manufacturer, not to be unreasonably withheld or delayed. In consideration of
Licensee's purchase of a license for the Equipment, Manufacturer agrees to offer
Licensee, at a price and upon terms to be negotiated between the parties but at
a discount from prices offered to the rest of the meat packing industry, all
improvements made by Manufacturer to substantially similar Equipment sold or
licensed by Manufacturer during the term of this Agreement. All additions,
modifications, alterations and upgrades to the Equipment and to Manufacturer
Confidential Information shall be handled pursuant to Article 7 of the
Development Agreement.
11. Net Fees; Taxes. The License Fee under this Agreement are net to
the Manufacturer, and Licensee shall pay to Manufacturer, when due, all taxes
and charges (other than income taxes imposed on Manufacturer), including all
sales, use, excise, personal property, stamp, documentary and ad valorem taxes,
license and registration fees, assessments, fines, penalties, freight,
transportation and similar charges imposed on the ownership, possession,
licensing, operation or use of the Equipment during the term of this Agreement.
In the event of a continuing default by Licensee, Licensee shall pay to
Manufacturer all costs and expenses, storage, caretaking and repossession
expenses in connection with the enforcement of Manufacturer's rights under this
Agreement.
12. Relationship of the Parties. Licensee shall be considered to be an
independent contractor. The relationship shall not be construed to be that of
employer and employee, and shall not constitute a partnership, joint venture or
agency of any kind. Neither party shall have any right to enter into any
contracts or commitments in the name of, or on behalf of, the other, or to bind
the other in any respect whatsoever. In addition, neither party shall obligate
or purport to obligate the other by issuing or making any affirmations,
representations, warranties or guaranties with respect to the Equipment to any
third party.
13. Indemnification.
(a) Except to the extent caused by the negligent acts or omissions
of Manufacturer or its officers, directors, employees, agents or contractors
(the "Manufacturer Representatives") or by the breach of this Agreement by
Manufacturer, Licensee shall indemnify, protect and save Manufacturer and the
Manufacturer
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Representatives harmless from all claims, demands, suits or actions (including
attorney fees incurred in connection therewith) that may be asserted against
Manufacturer or any Manufacturer Representative relating to (i) Licensee's
indemnification obligations contained in Section 5(b), (ii) acts of negligence
or willful conduct by Licensee or any Licensee Representative in connection with
the Equipment, or (iii) Licensee's breach of this Agreement. These
indemnification obligations shall continue in full force and effect
notwithstanding the termination of this Agreement.
(b) Except to the extent caused by the negligent acts or omissions
of Licensee or its officers, directors, employees, agents or contractors (the
"Licensee Representatives") or by the breach of this Agreement by Licensee,
Manufacturer shall indemnify, protect and save Licensee and the Licensee
Representatives harmless from all claims, demands, suits or actions (including
attorney fees incurred in connection therewith) that may be asserted against
Licensee or any Licensee Representative relating to (i) any alleged or actual,
direct or contributory infringement of patent or other intellectual property,
arising from the use of the Equipment, (ii) acts of negligence or willful
conduct by Manufacturer or any Manufacturer Representative or (iii)
Manufacturer's breach of this Agreement. These indemnification obligations shall
continue in full force and effect notwithstanding the termination of this
Agreement.
(c) In the event a claim against an indemnified party arises to
which the indemnity of this section is applicable, notice shall be given
promptly by the indemnified party to the indemnifying party and the indemnifying
party shall have the right to control the defense of such claim and to select
lead counsel to defend such claim, at the sole cost and expense of the
indemnifying party; provided that in no event shall an indemnifying party enter
into any settlement without the consent of the indemnified party, which consent
shall not be unreasonably withheld. The indemnified party may select counsel to
participate in any such defense at the sole cost and expense of the indemnified
party. In connection with any claim, the parties shall cooperate with each other
and provide each with access to relevant books and records in their possession,
as well as necessary employees or other agents.
14. Insurance.
(a) Licensee shall obtain and maintain or self insure for the
Term, at its own expense, property damage and liability insurance and insurance
against loss or damage to the Equipment (including so-called extended coverage),
as a result of theft and such other risks of loss as are normally maintained on
equipment of the type licensed under this Agreement by companies carrying on the
business in which Licensee is engaged, in such amounts, in such form and with
such insurers as shall be reasonably satisfactory to Manufacturer. Each
insurance policy shall provide that it may not be canceled or altered without at
least 30 days prior written notice thereof being given to Manufacturer or its
successor and assigns.
(b) Manufacturer agrees that during the Term it and any
subcontractor it provides to perform installation, service or maintenance at the
Facility, shall maintain a policy or policies of insurance as set forth below:
(i) worker's compensation, employer's liability insurance and
other legally required employer's insurance in accordance with and meeting all
requirements of applicable State and Federal law; and
(ii) general liability insurance (including contractual
liability) in amounts not less than $2,000,000 per occurrence, combined single
limits.
(c) Each party shall provide the other evidence of the
above-required insurance in the form of certificates of insurance. These
certificates of insurance shall contain a provision that 30 days' prior written
notice of cancellation will be provided to the other party.
15. Risk of Loss. Except to the extent caused by the acts or omissions
of Manufacturer or any Manufacturer Representative or arising out of a breach of
this Agreement by Manufacturer, Licensee shall bear the entire risk of the
Equipment being lost, destroyed or otherwise unfit or unavailable for use from
any cause whatsoever (an "Event of Loss") after it has been delivered by the
Manufacturer to the common carrier for shipment to Licensee. If an Event of Loss
shall occur with respect to the Equipment, Licensee shall promptly notify
Manufacturer of that fact in writing. Except to the extent caused by the acts or
omissions of Manufacturer or any Manufacturer Representative or arising out of a
breach of this Agreement by Manufacturer, on the License Fee payment date
following Manufacturer's receipt of such notice, Licensee shall pay to
Manufacturer an amount equal
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to the License Fee payment due and payable with respect to the Equipment on or
prior to such date, plus a sum equal to the casualty value of the Equipment as
of the date of such payment (which, for purposes of this Agreement, shall be
determined in good faith by Manufacturer and Licensee in direct relation to the
value of the portion of the Equipment deemed to have been lost, and in no case
to exceed $200,000.00).
16. Default. Notwithstanding anything to the contrary contained in
this Agreement, if any one of the following events (an "Event of Default") shall
occur, then to the extent permitted by applicable law, the non-defaulting party
shall have the right, but not the obligation, to exercise any one or more of the
remedies set forth in Section 17 below:
(a) Licensee fails to pay any Licensee Fee or other payment under
this Agreement when due and after receiving written notice of non-payment from
Manufacturer does not make such payment within three business days;
(b) any representation or warranty of either party made in this
Agreement shall prove to have been false or misleading in any material respect
as of the date when it was made;
(c) either party breaches any covenant, warranty or agreement
hereunder, and such breach continues for 10 business days after receipt of
written notice of such breach, or such additional reasonable time (not to exceed
60 days) if such breach cannot reasonably be cured in such 10 business day
period; or
(d) either party is dissolved, becomes insolvent or makes an
assignment for the benefit of creditors, a receiver, trustee, conservator or
liquidator of all or a substantial part of its assets is appointed with or
without its application or consent or a petition is filed or consented to such
party under the Federal Bankruptcy Code or other law of the United States or of
any other competent jurisdiction, or under any insolvency law or laws providing
for the relief of debtors, or a petition or other proceeding is filed or
commenced against such party thereunder and not dismissed or stayed within 30
days thereafter.
17. Remedies.
(a) Upon the occurrence and during the continuance of an Event of
Default by Licensee, in addition to any rights or remedies available at law or
in equity, Manufacturer may, at its option, exercise any one or more of the
following remedies:
(i) cause Licensee to (and Licensee agrees that it will),
upon written demand of Manufacturer and at Licensee's expense, promptly return
to Manufacturer at a location in the continental United States designated by
Manufacturer the Equipment in accordance with all of the terms of this
Agreement, or Manufacturer, at its option, may enter upon the premises where the
Equipment is located and take immediate possession of and remove the same, all
without liability for unreasonable damage to property or otherwise and without
being guilty of trespass or conversion as to the Equipment;
(ii) sell any or all of the Equipment at public or private
sale, with notice to Licensee or advertisement, or otherwise dispose of, hold,
use, operate, lease to others, or keep idle the Equipment, all as Manufacturer
in its sole discretion may determine and all free and clear of any rights of
Licensee and without any duty to account to Licensee for such action or inaction
or for any proceeds with respect thereto, except as hereinafter provided or
required by applicable law (with all notices of any sale, lease or other
disposition of the Equipment being sent to Licensee at least 10 days prior to
such disposition or such other action, and shall constitute reasonable, fair
notice to Licensee of any such disposition);
(iii) enter upon the premises where the Equipment or
any item thereof is located and render the Equipment or such item inoperable but
not so as to diminish its value;
(iv) exercise any other right that may be available to it
under the Uniform Commercial Code or any other applicable law or proceed by
appropriate court action to enforce the terms hereof or to recover damages for
the breach hereof or to rescind this Agreement as to the Equipment; or
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(v) (exclusive of any one or more of the foregoing remedies), by
written notice to Licensee, cause Licensee to (and Licensee agrees that it will)
pay to Manufacturer (as liquidated damages for loss of a bargain and not as a
penalty) on the date specified in such notice an amount equal to the then
present value of all unpaid payments due under this Agreement that, absent an
Event of Default, would have been payable under this Agreement for the full
Term, and in such event Licensee shall enjoy the same rights and privileges and
retain the same obligations (other than the obligation to pay License Fees) for
the balance of the Term and at the end of the Term as if no default had occurred
and all license fee obligations had been prepaid in full or otherwise satisfied
completely. In addition, Licensee shall continue to be liable for all covenants
and indemnities under this Agreement and for all attorney fees and other costs
and expenses incurred by Manufacturer, including, but not limited to, placing
any Equipment in the condition required by this Agreement upon redelivery.
(b) Upon the occurrence and during the continuance of an Event
of Default by Manufacturer, in addition to any rights or remedies available at
law or in equity, Licensee may, at its option, terminate this Agreement and
return the Equipment without further obligation to Manufacturer.
(c) No failure on the part of either party to exercise, and no
delay in exercising, any right or remedy hereunder shall operate as a waiver
thereof; and the rights or remedies provided herein or by applicable law,
including, without limitation, re-entry upon premises or repossession of the
Equipment, will not be considered an election of remedies, waiver of either
party's rights hereunder or under applicable law or termination or surrender of
this Agreement.
18. Return of Property. Upon the termination of this Agreement or the
expiration of the Term, Manufacturer, at Licensee's expense, shall promptly
remove the Equipment from the Facility. At the time of removal, the Equipment
shall be in good order and condition, reasonable wear and tear excepted and
except to the extent due to the acts or omissions of Manufacturer or any
Manufacturer Representative or the breach of this Agreement by Manufacturer.
Licensee shall also pay to Manufacturer such sums as may be reasonably necessary
to cover replacement for all damaged, broken or missing parts of the Equipment,
reasonable wear and tear excepted.
19. Safety. Manufacturer and its contractors performing installation,
service and maintenance at the Facility shall complete and sign Licensee's
Contractor Safety Pre-Qualification form attached as Exhibit B and incorporated
herein, and shall abide by Licensee's safety rules, policies and procedures as
outlined in Licensee's Safety Guidelines Handbook or as otherwise communicated
by Licensee to Manufacturer or its contractors, including, without limitation
the Drug/Alcohol Testing Addendum attached as Exhibit C.
20. Compliance with Laws. Both parties warrant that their performance
under this Agreement shall be rendered in material accordance with all
applicable laws, rules, regulations and ordinances.
21. Patents. Manufacturer warrants that none of the Equipment violates
any patents or other intellectual property rights of third parties. If it should
be determined that any Equipment sold hereunder infringes any existing patent or
other intellectual property rights of a third party, the Manufacturer shall
indemnify Licensee and defend the action on behalf of Licensee, at
Manufacturer's expense and, at Manufacturer's option: (i) modify, at
Manufacturer's expense, the Equipment to make it non-infringing or to provide
substantially similar benefit to Licensee (or in such other way as is reasonably
acceptable to Licensee); (ii) replace, at Manufacturer's expense, the infringing
Equipment with non-infringing equipment or that provides substantially similar
benefit to Licensee (or in such other way as is reasonably acceptable to
Licensee); or (iii) terminate this Agreement and remove the Equipment from the
Facility at Manufacturer's expense.
22. Modification. No modification or change may be made in this
Agreement except by a writing signed by a duly authorized representative of each
party.
23. Assignment. Except by Licensee to a subsidiary or commonly
controlled affiliate, or except in the case of a sale of the Facility, this
Agreement and the rights and obligations hereunder may not be assigned,
delegated or transferred by the Licensee without the prior written consent of
the Manufacturer. Manufacturer may, without Licensee's consent, assign or
transfer this Agreement or the Equipment, any fees or other sums due or to
become due under this Agreement, and in such event Manufacturer's assignee or
transferee shall have all the rights, obligations, powers, privileges and
remedies of Manufacturer under this Agreement, and Licensee's obligations
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hereunder shall not be subject to any defense, offset or counterclaim available
to Licensee against Manufacturer. In any case of assignment by either party, the
assigning party shall remain liable to the other party for the rights,
obligations, powers, privileges and remedies of the other party with respect to
such assignee.
24. Other Prohibitions Related to the Lease and Equipment. Without the
prior written consent of Manufacturer, such consent not to be unreasonably
withheld, Licensee shall not: (a) sublease any of the Equipment; (b) create or
incur, or permit to exist, any lien or encumbrance with respect to any of the
Equipment, or any part thereof; or (c) move any of the Equipment from the
location at which it is first installed.
25. Notice. Any and all notices, requests, instructions and other
communications required or permitted to be given under this Agreement after the
date hereof by any party hereto to any other party may be delivered personally
or by nationally recognized overnight courier service or sent by mail or by
telex or facsimile transmission, at the respective addresses or transmission
numbers set forth below and shall be effective (a) in the use of personal
delivery, telex or facsimile transmission, when received; (b) in the case of
mail, upon the earlier of actual receipt or three (3) business days after
deposit in the United States Postal Service, first class certified or registered
mail, postage prepaid, return receipt requested; and (c) in the case of
nationally recognized overnight courier service, one (1) business day after
delivery to such courier service together with all appropriate fees or charges
for such delivery. The parties may change their respective addresses and
transmission numbers by written notice to all other parties, sent as provided in
this Section 22. All communications must be in writing and addressed as follows:
Manufacturer: eMerge Interactive, Inc.
10315 102nd Terrace
Sebastian, FL 32958
Telecopy: (561) 589-3779
Attention: Rich Stroman
Copy To: Jenkens & Gilchrist, a Professional Corporation
1445 Ross Avenue
Suite 3200
Dallas, Texas 75202-2799
Attention: Michael J. Pendleton, Esq.
Telecopier: (214) 855-4300
Licensee: Excel Corporation
151 North Main Street
Wichita, KS 67202
Attention: Steve Mellinger, Vice President
Telecopier: (316) 291-_____
Copy To: Excel Corporation
151 North Main Street
Wichita, KS 67202
Attention: Legal Department
Telecopier: (316) 291-3499
26. Waiver. None of the conditions or provisions of this Agreement
shall be held to have been waived by any act or knowledge on the part of either
party, except by an instrument in writing signed by a duly authorized officer or
representative of the parties. Further, the waiver by either party of any right
or the failure to enforce at any time any of the provisions of this Agreement,
or any related rights, shall not be deemed to be a waiver of any other rights or
any breach or failure of performance of the other party.
27. Confidentiality. Both parties acknowledge that, in the course of
performing their respective obligations under this Agreement, they may receive
from the other party certain confidential and proprietary information, including
data, specifications, processes, policies, technologies, methods, formulae, and
performance and other information of the other party (collectively,
"Confidential Information"). Both parties agree to limit disclosure and access
to the Confidential Information to such of their employees as are directly
involved with work
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required by this Agreement and then only to the extent as is necessary and
essential to complete such work. Each party will ensure that their respective
employees shall preserve the confidential nature of the Confidential
Information. Neither party shall disclose any of the Confidential Information to
any other party, in whole or in part, directly or indirectly, unless authorized
in writing by the other party. The parties shall, at all times, take proper and
appropriate steps to protect the Confidential Information. Confidential
Information shall be used only in connection with performance of this Agreement.
No other use of it will be made by the receiving party or its employees, it
being recognized that the disclosing party has reserved all rights to the
Confidential Information. The term Confidential information shall not include
information which (i) is in the public domain prior to disclosure to the
receiving party, (ii) is lawfully in the receiving party's possession prior to
disclosure, (ii) becomes part of the public domain by publication or otherwise
through no unauthorized act or omission on the part of the receiving party. The
receiving party will not duplicate the Confidential Information, in whole or in
part, except to the extent necessary to perform its obligations under this
Agreement. The Confidential Information shall remain the property of the
disclosing party and shall be returned to the disclosing party upon termination
of this Agreement. The obligations under this section shall survive termination
of this Agreement.
28. Visitation Rights. When in the company of personnel of other meat
packing companies that are pre-announced by Manufacturer to Licensee and
pre-authorized each time by Licensee to Manufacturer, Licensee agrees to allow
visitation rights to the Equipment installation site, expressly for the purpose
of viewing the Equipment in operation, on date(s) and time(s) to be determined
by Licensee in common accord with Manufacturer.
29. Miscellaneous.
(a) Severability. If any provision of this Agreement is declared
invalid or unenforceable, this Agreement shall endure except for the part
declared invalid or unenforceable. The parties shall consult and use their best
efforts to agree upon a valid and enforceable provision which shall be a
reasonable substitute for such invalid or unenforceable provision in light of
the intent of this Agreement.
(b) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(c) Entire Agreement. This Agreement supercedes and cancels any
previous agreements or understandings, whether oral, written or implied,
heretofore in effect and sets forth the entire agreement between Manufacturer
and Licensee with respect to the subject matter hereof, including the
Development Agreement (other than with respect to the confidentiality and
publicity and publications provisions contained in that agreement). In the event
of a conflict between the Development Agreement and this Agreement, the terms of
this Agreement shall control.
(d) Specific Performance. In addition to such other remedies as
may be available under applicable law, the parties acknowledge that the remedies
of specific performance and/or injunctive relief shall be available and proper
if either party fails or refuses to perform its duties or fulfill its covenants
hereunder.
(e) Force Majeure. No party to this Agreement shall be responsible
for any delays or failure to perform any obligation under this Agreement due to
acts of God, strikes or other disturbances, including without limitation war,
insurrection, embargoes, governmental restrictions, acts of governments or
governmental authorities, and any other cause beyond the control of such party.
During an event of force majeure the parties' duties to perform obligations set
forth in this Agreement shall be suspended.
(f) Governing Law. This Agreement shall be construed in accordance
with the laws of the state of Delaware without giving effect to the principles
of conflict of laws.
(g) Publicity. The provisions of "Article 4 - Publicity and
Publications" of the Joint Development Agreement shall continue to be in force
and effect and shall apply to this Agreement, with such provisions being
incorporated into this Agreement by reference.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first written above.
LICENSEE:
EXCEL CORPORATION
By: /s/ Stephen C. Mellinger
---------------------------------------
Name: Stephen C. Mellinger
-------------------------------------
Title: Vice President
------------------------------------
MANUFACTURER:
EMERGE INTERACTIVE, INC.
By: /s/ David C. Warren
---------------------------------------
Name: David C. Warren
------------------------------------
Title: President/CEO
------------------------------------
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