8k Sept. 26, 2016....MUST READ....GO TBEV
JC Calderon/Pro Prom, and High Performance Beverage
16. INSURANCE & INDEMNITY .
17.1 Insurance
17.1.1 Licensee Insurance . Licensee shall obtain and maintain at its expense during the Term and for four (4) years thereafter standard product liability and general liability insurance policies (collectively, the “Insurance”), in occurrence forms, covering Licensee and Licensor against any claims, damages, liabilities, causes of action, costs and expenses (including without limitation attorneys’ fees) arising in connection with or in any way relating to: (a) any actual or alleged defect or failure to perform of a Licensed Product or of any Materials used in connection therewith; (b) any use by Licensee, directly or indirectly, of the License and the Trademarks and Other IP; (c) any default by Licensee under this Agreement; (d) any indemnification obligations of Licensee under this Agreement; and (e) any injury or death to any person or damage to property caused by Licensee’s use of the License or the Trademarks or Other IP. All policies required by this section shall: (i) be in forms, and issued by carriers, reasonably acceptable to Licensor, and shall be admitted to do business in California; (ii) be in an amount of at least one (1) million Dollars (US $500,000.00) per occurrence and at least two (2) million Dollars (US $500,000.00) in aggregate coverage. These coverages are minimum required amounts and Licensee shall carry higher amounts if it is commercially reasonable to do so.
Licensee shall provide Licensor with a copy of all Insurance policies, as well as certificates of insurance and an endorsement naming Licensor as an additional insured at least thirty (30) days prior to the first shipment of Licensed Products under this Agreement, and Licensee shall further provide Licensor with proof of payment of Insurance premiums whenever requested. All Insurance policies shall contain provisions requiring at least thirty (30) days’ prior written notice to Licensor prior to any cancellation or modification, and shall also contain commercially reasonable waiver of subrogation provisions. In addition to the insurance coverages listed in this Section 17.1.1, Licensee shall also carry any other coverages which are consistent with commercially reasonable practices.
This Agreement shall terminate if Licensee fails to provide the required Insurance within 15 (fifteen) days after notice from Licensor, without Licensor being required to give any further notice or warning. Notwithstanding the foregoing, in the event Licensee fails to obtain and/or maintain any required insurance, then Licensor shall have the right, but not the obligation, to obtain and maintain such insurance at the cost and expense of Licensee, and upon written demand by Licensor to Licensee, Licensee shall immediately pay Licensor the cost of all such insurance, all reasonable costs of Licensor and Default Interest from the date the cost was incurred until the date the amounts are paid to Licensor.
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Licensee shall insure the Licensed Products held by it at any time against losses by fire, theft, flood or other similar occurrences, at the wholesale selling price of such Licensed Products, and the loss payable portion of the Insurance shall list Licensor to the extent of the greater of the current average Royalty payments or Minimum Royalties for the period of the loss.
17.2 Indemnity.
17.2.1 By Licensee. Licensee shall indemnify, defend (with counsel reasonably acceptable to Licensor), protect and hold harmless Licensor and each director, officer, shareholder, owner, manager, employee, agent, attorney and other representative of Licensor, from and against any and all losses, damages, claims, causes of action, liabilities, expert witness fees, court fees and costs, and any other costs and expenses (including without limitation attorneys’ fees) incurred or paid by Licensor arising out of or in connection with: (a) the inaccuracy of any representation or breach of warranty made by Licensee in this Agreement; (b) any uncured default of this Agreement by Licensee; or (d) any third party claim of damage or injury caused by defects or alleged defects in the design, content, manufacture of the Licensed Products, or the marketing, distribution or sale of the Licensed Products.. The indemnification and other provisions of this Section 17.2.1 shall survive the expiration or earlier termination of this Agreement.
17.2.2 By Licensor. Licensor shall indemnify, defend (with counsel reasonably acceptable to Licensee), protect and hold harmless Licensee and each director, officer, shareholder, owner, manager, employee, agent, attorney and other representative of Licensee, from and against any and all losses, damages, claims, causes of action, liabilities, expert witness fees, court fees and costs, and any other costs and expenses (including without limitation attorneys’ fees) incurred or paid by Licensee arising out of or in connection with: (a) the inaccuracy of any representation or breach of warranty made by Licensor in this Agreement; (b) any uncured default of this Agreement by Licensor or (c) any third-party lawsuit alleging that Licensee’s use of the License and the Trademarks and Other IP and Materials is infringing on or otherwise violating the rights (including but not limited rights related to trademarks, trade names, copyright, or right of publicity) of any third party. The indemnification and other provisions of this Section 17.2.2 shall survive the expiration or earlier termination of this Agreement.
18. NO TRANSFERS BY LICENSEE . Licensee shall not sell, assign, encumber, sublicense or otherwise transfer or attempt to transfer any of Licensee’s rights or obligations under this Agreement (including without limitation the License) (each, a “Transfer”) without the prior written consent of Licensor, which consent may be granted or withheld in the sole discretion of Licensor. Any attempt by a non-approved transferee to do business under the License shall entitle Licensor to immediately terminate this Agreement by written notice to Licensee.
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19. Termination .
19.1 By Licensee . Upon mutual agreement.
19.2 By Licensor . Upon mutual agreement or any default
20. POST TERMINATION/EXPIRATION RIGHTS AND OBLIGATIONS . All of the following rights and obligations shall apply upon any termination of this Agreement, whether by expiration of the term hereof or by earlier termination pursuant to the provisions of this Agreement.
20.1 No Further Production of Licensed Products. No further manufacture or production of Licensed Products by the Licensee (other than work already then in progress) shall occur after termination of this Agreement.
20.2 Sale of Existing Inventory of Licensed Products; Purchase Right. Provided that Licensee: (a) has paid all amounts due to Licensor up through the effective date of termination (including without limitation all Royalties); (b) pays Licensor the Minimum Royalty payment for the current period in which the termination occurred and for subsequent “Inventory Sale Period” (as defined below); and (c) is not in default of any material obligation under this Agreement at the time of termination, then, Licensee shall have a period of sixty (60) days after the effective date of termination in which to sell any inventory of Licensed Products (the “Inventory Sale Period”). All terms of this Agreement shall continue in force during any Inventory Sale Period including the payment of Royalties. Licensor may prevent any Inventory Sale Period by requiring Licensee to sell to Licensor all Licensed Product inventory from Licensee at Licensee’s actual cost, plus four percent (4%). In the event of any such required sale and purchase, Licensor shall receive a credit against the purchase price for any amounts due to Licensor from Licensee.
20.3 Removal of Trademarks and Other IP. Subject to the Inventory Sale Period, Licensee shall promptly cease future plans for making references to the Trademarks and Other IP in any advertising or promotional and business materials and other Materials, including without limitation all references to Licensee having previously been a licensee of the Trademarks and Other IP as practicable.
20.4 Delivery of Ingredients and Materials to Licensor. Subject to the Inventory Sale Period, Licensee shall deliver to Licensor (a) all packing, marketing, advertising, display and other Materials (other than the Licensed Products) bearing the Trademarks and Other IP; and (b) ingredients which are unique to the Licensed Products at a price of actual.
20.5 Delivery of Inventory List and Report. Within thirty (30) days after termination or expiration of this Agreement, Licensee shall furnish Licensor with a full and complete inventory of Licensed Products manufactured or in the process of manufacture, and all Licensed Products out for sale, including the cost price of such products to the extent that Licensee’s divulgence of such information does not violate its trade secret rights in confidential or proprietary business information. In addition, Licensee shall concurrently provide Licensor with a Report pursuant to Section 4.3.
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20.6 Continuing Obligations. The termination of this Agreement shall not relieve Licensee of any duties and obligations contained herein during the Inventory Sale Period, including without limitation the obligations to furnish Reports, make Royalty payments, and pay advertising or brand support expenses on any Licensed Product sold or distributed.
21. REPRESENTATIONS AND WARRANTIES.
21.1 By Licensor. As a material inducement for Licensee’s entry into and consummation of this Agreement, Licensor represents, warrants and covenants to Licensee that the facts set forth in this Section 22.1 are true and correct as of the date hereof and shall be true and correct as throughout the Term.
21.1.1. Licensor is a corporation, duly formed and in good standing in the state of Nevada.
21.1.2. (i) Licensor has the full right and authority to enter into and perform this Agreement; (ii) Licensor is authorized to sign this Agreement; (iii) the execution, consent or acknowledgment of no other party is necessary in order to validate Licensor’s entry into and performance of this Agreement; (iv) Licensor’s entry into and performance of this Agreement does not violate any agreement binding on Licensor; and (v) this Agreement is a legal, valid, binding and enforceable obligation of Licensor.
21.1.3. Licensor is the owner of the Trademarks and Other IP.
21.2 By Licensee. As a material inducement for Licensor’s entry into and consummation of this Agreement, Licensee represents, warrants and covenants to Licensor that the facts set forth in this Section 22.2 are true and correct as of the date hereof and shall be true and correct as throughout the Term.
21.2.1. Licensee is a corporation, duly formed and in good standing in the Mexico.
21.2.2. (i) Licensee has the full right and authority to enter into and perform this Agreement; (ii) Licensee is authorized to sign this Agreement; (iii) the execution, consent or acknowledgment of no other party is necessary in order to validate Licensee’s entry into and performance of this Agreement; (iv) Licensee’s entry into and performance of this Agreement does not violate any agreement binding on Licensee; and (v) this Agreement is a legal, valid, binding and enforceable obligation of Licensee; and Licensee has provided a certified copy of all Corporate Resolutions authorizing the entry into this Agreement and all terms and conditions and no other corporate or shareholder proceedings on the part of the Licensee are necessary to authorize such documents or to consummate the transactions contemplated herein.
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21.2.3 There is no pending Proceeding that has been commenced by or against the Licensee or that otherwise relates to or may affect the business or any of the assets owned or used by the Licensee.
21.2.4 Licensee has disclosed all outstanding options, warrants, subscriptions, conversion rights, or other rights, agreements, board of director’s resolutions, shareholders’ resolutions or commitments obligating the Licensee to issue any additional shares of its company, or any other securities convertible into, exchangeable for, or evidencing the right to subscribe for or acquire from the Licensee any shares of its company.
22. LIMITATION OF REMEDIES. In the event of a default by either party to this Agreement, the other party shall have all available remedies pursuant to this Agreement, at law or in equity, except that in the event of a default, the non-defaulting party shall only be entitled to seek direct damages and shall not be entitled to seek or recover from the defaulting party consequential (including without limitation lost profits), exemplary, or punitive damages. Nothing in this Section 22 shall: (a) prevent either party from seeking contract damages (damages for direct benefits (established with reasonable certainty) that the aggrieved party would have received from full performance by the other party, less reasonable mitigation amounts as established by the party in default), or tort damages for any fraud or intentional torts; or (b) prevent Licensor from bringing an action for payment of Royalties.
23. GENERAL PROVISIONS .
23.1 Further Assurances . Licensee and Licensor shall each promptly sign and deliver any and all additional documents and perform any and all acts reasonably necessary to perform its obligations and carry out the intent expressed in this Agreement.
23.2 Survival . Each indemnification, representation, warranty and covenant in this Agreement shall survive the expiration or earlier termination of this Agreement.
23.3 Notices . Any notice or other communication given pursuant to or in connection with this Agreement (“notice”) shall be in writing . All such notices shall be personally delivered, or sent by United States registered or certified mail, Email, or sent by a nationally recognized courier service such as Federal Express, addressed as follows:
IF TO LICENSOR: HIGH PERFORMANCE BEVERAGES CO .
5137 E. Armor St
Cave Creek, AZ 85331
Email: Toby@hpbev.com
Attention: Toby McBride CEO/CFO
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IF TO LICENSEE: SC Company and Proprom Mexico
Barras #46 col Lindavista Código postal 07300
Ciudad de México, Mx.
Email: sircalderon@att.net
Attention: Chief Executive Officer
Email: guadalupefuentes@proprom.com
Attention: Director of Proprom Mexcio
Delivery of any notice shall be deemed made on the date of its actual delivery if personally delivered, and on the date indicated in the return receipt or courier's records as the date of its delivery or first attempted delivery if sent by mail or courier. Any notice given by e-mail shall be deemed delivered when received by the e-mail provider of the receiving party if received before 4:00 p.m. (Pacific Time) on the business day received; otherwise, notice shall be deemed to have occurred on the next business day. The transmittal confirmation receipt produced by the email provider of the sending party shall be prima facie evidence of its receipt. Either party may also send a courtesy notice to the other party by email, but such notice shall only be a courtesy notice and only the other methods of notice specified in this section shall constitute actual notice. Any party may change its address or fax number for notice purposes by giving notice to the other party.
