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LICENSING AGENT AGREEMENT This Licensing Agent Agreement by jsq13914

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									                                LICENSING AGENT AGREEMENT

       This Licensing Agent Agreement ("Agreement") is made and entered into as of this           day
of          , 1995 by and between ______________________, Inc., a ________________
corporation with offices at                    ,      ("XYZ"), and
____________________________., a _________________________ with offices at
                         , _________________     ("Agent").

       IN CONSIDERATION OF THE MUTUAL PROMISES CONTAINED HEREIN, the parties
agree as follows:


1.     DEFINITIONS.

        (a)    A "Licensee Agreement" shall mean an agreement between XYZ and a Licensee
pursuant to which XYZ (i) licenses the right to make, have made, use and sell products incorporating
XYZ's __________ and (ii) supplies ________________ to Licensee. Licensee Agreements are
further described in Exhibit A attached hereto.

        (b)     A "Licensee" shall mean a third party manufacturer in the Territory with whom XYZ
enters into an Licensee Agreement. Licensees may include, without limitation,                    .

        (c)    "Net Revenues" shall mean, with respect to the initial (and not any extended) term of
a Licensee Agreement: (i) the royalties paid to XYZ by Licensees on sales of products incorporating
XYZ's technology and ______________________; (ii) the gross sales prices received by XYZ on
sales of ______________________ to Licensees, less credits for returns and allowances, cash and
trade discounts, sales, use, excise or similar taxes, duties, insurance and freight and other shipping
expenses; and (iii) fees (but not payments under (i) or (ii) above) received by XYZ from Licensees
which are attributable to any exclusivity with respect to a particular product or products or territory
granted to a Licensee with respect to a particular Licensee Agreement. Notwithstanding subsection
(i) above, Net Revenues shall not include payments to XYZ by Licensees representing royalties that
must be paid to celebrities or other third parties with respect to Licensee's products incorporating
XYZ's ______________________ or technology.

       (d)     "Territory" shall mean the United States and its territories.

2.      SERVICES. Subject to the terms and conditions herein, XYZ hereby appoints Agent as a
licensing agent for the Licensee Agreements for the Licensees in the Territory, and Agent hereby
accepts such appointment. Agent's sole authority shall be to initiate and negotiate Licensee
Agreements between XYZ and Licensees in the Territory in accordance with the terms of this
Agreement. As part of its duties under this Agreement, Agent shall perform the activities set forth in
Exhibit A hereto. XYZ shall be under no obligation to enter into any Licensee Agreement, except as
provided herein. Agent shall not have the authority to enter into Licensee Agreements on behalf of
XYZ, nor to make any commitments whatsoever on behalf of XYZ, nor to initiate or negotiate
Licensee Agreements outside the Territory. XYZ reserves the right to initiate and negotiate
Licensee Agreements directly with Licensees or to appoint other licensing agents, provided that
XYZ shall keep each appointed licensing agent (including Agent) aware of the contracts and
activities of the other appointed licensing agents, to the extent such other licensing agents so inform
XYZ. XYZ shall pay no compensation to Agent for orders solicited by XYZ directly or by other
licensing agents.

3.      SUPERVISION. Agent is authorized to act as a licensing agent under this Agreement only
at the direction of any duly appointed officer of XYZ.

4.     MONTHLY RETAINER.

        XYZ shall pay Agent, within ten (10) days after the last day of each calendar month during
the term of this Agreement, a fee of $___________ with respect to such calendar month. XYZ shall
have the right to credit the amount of each and every such monthly fee paid by XYZ against XYZ’s
payment obligations under Section 5 hereof.

5.     COMMISSION.

        (a)     Compensation. Provided that Agent has performed his obligations set forth in
Section 7(a), and subject to the terms and conditions of Section 4, XYZ shall pay Agent, within ten
(10) days after the end of each calendar month, with respect to payments received by XYZ from
Licensees in such calendar month, a commission calculated as a percentage of Net Revenues, which
commission is set forth in Exhibit A attached hereto. Commissions with respect to a particular
Licensee Agreement shall not be earned by Agent or paid by XYZ until payment of Net Revenues
under that Licensee Agreement is received by XYZ. Commissions shall be earned and paid pro rata
on partial payments received from Licensees. It is expressly understood by Agent that full
responsibility for all collection from Licensee rests with XYZ.

        (b)    Basis of Commission. The commissions shall apply to all Licensee Agreements
initiated by Agent that have been entered into by XYZ and a Licensee in the Territory, for which
Agent has participated in substantially all meetings and negotiations with respect thereto.

        (c)    Split Commissions. If more than one licensing agent is involved in the initiation or
negotiation of a particular Licensee Agreement, XYZ, in its sole discretion, may split the
commission for orders between or among the licensing agents involved. In no event shall the total
commission for the Licensee Agreement exceed the amount determined from Exhibit A attached
hereto.

        (d)     Monthly Statements. XYZ shall submit to Agent, at the same time as commissions
are paid under Section 5(a), monthly statements of the commissions due and payable to Agent under
the terms of this Agreement, with reference to the specific Licensee Agreements on which the
commissions are being paid.




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       (e)     Inspection of Records. Agent shall have the right, at its own expense and not more
than once in any twelve (12) month period, to authorize XYZ's independent auditors to inspect at
reasonable times XYZ's relevant accounting records to verify the accuracy of commissions paid by
XYZ under the terms of this Agreement.

        (f)     Travel Expenses. XYZ agrees that it shall reimburse Agent, within fifteen (15) days
of the end of the calendar month in which Agent submits an invoice and complete receipts to XYZ,
for reasonable travel, room and board and other reasonable out-of-pocket expenses priorly approved
by a XYZ officer in writing, which expenses are incurred by Agent in connection with the initiation
and negotiation of Licensee Agreements hereunder. All equipment and tangible materials purchased
by Agent and reimbursed by XYZ under this provision shall be the property of XYZ, and, upon
request by XYZ, Agent shall assign ownership in, and deliver, such equipment to XYZ.

6.      SOLICITATION OF LICENSEES. Agent may provide a potential Licensee with a non-
binding term sheet (which term sheet has been priorly approved in writing by XYZ). Agent shall
promptly furnish to XYZ copies of all such term sheets submitted to Licensees. Agent may also,
upon the prior approval of XYZ, provide a potential Licensee with an unsigned copy of XYZ's then-
current License and Supply Agreement. Agent shall, in all correspondence with potential Licensees,
whether oral or written, indicate that all Licensee Agreements are subject to negotiation and
approval by XYZ.

7.     RESPONSIBILITIES OF AGENT.

        (a)     Promotion Efforts. Agent shall at all times use reasonable efforts to initiate, negotiate
and conclude Licensee Agreements in the Territory, and shall in no event expend less than thirty
hours per calendar month. Without limiting the foregoing, Agent shall commit resources to the
solicitation of Licensee Agreements in the Territory commensurate with the resources committed by
Agent to the solicitation of other agreements for other products which are expected to produce
revenues similar to the Licensee Agreements. In no event shall Agent make any representation,
guarantee or warranty concerning the Licensee Agreements except as expressly authorized by XYZ
in writing (including without limitation in a term sheet or form License and Supply Agreement).

        (b)    Customer Support. Agent shall perform customer service for Licensees by
maintaining constant contact with such Licensees. Agent shall assist Licensees with basic marketing
support and answer basic questions regarding the operation of the Licensee Agreements. Agent
shall perform such additional customer services as Licensees or XYZ may reasonably request.

        (c)    Monthly Reports. Agent shall, at least once per calendar month, provide XYZ with a
current written report summarizing names, titles, addresses, corporate affiliations, corporate
addresses and telephone numbers of contacts made, opportunities and problems, proposed new
actions, follow-up actions, dates and assigned responsibilities.




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       (d)      Advising of Changes. Agent shall promptly advise XYZ of (i) any changes in
Agent's status, organization, address, and similar matters and (ii) any changes in the key personnel,
organization, and status of existing Licensees.

         (e)    Facilities. Agent shall provide itself with, and be solely responsible for, (i) such
facilities, employees, and business organization, and (ii) such permits, licenses, and other forms of
clearance from governmental or regulatory agencies, if any, as is necessary for the conduct of its
business operations in accordance with this Agreement.

      (f)      Expense of Doing Business. Agent shall bear the entire cost and expense of
conducting its business in accordance with the terms and conditions of this Agreement.

8.     CONFIDENTIALITY.

        Agent acknowledges that by reason of its relationship to XYZ hereunder it may have access
to certain information and materials concerning XYZ's business, plans, customers, technology, and
products, including without limitation any ______________________ supplied under the Licensee
Agreements, that are confidential and of substantial value to XYZ, which value would be impaired if
such information were disclosed to third parties ("Confidential Information"). Upon request by
Agent, XYZ shall advise whether or not it considers any particular information or materials to be
confidential. Agent agrees that it shall not use in any way for its own account or the account of any
third party, nor disclose to any third party, any such Confidential Information revealed to it by XYZ.
 Agent shall take every reasonable precaution to protect the confidentiality of such Confidential
Information, including, at the request of XYZ, the entry of Agent's agents and employees into
confidentiality agreements in a form approved by XYZ, prohibiting any disclosure to third parties of
Confidential Information provided by XYZ. In the event of termination of this Licensee Agreement,
Agent shall not use or disclose any Confidential Information of XYZ, and Agent shall not manufac-
ture or have manufactured any devices, components or assemblies utilizing XYZ's
______________________, patents, inventions, copyrights, know-how or trade secrets. Agent shall
deliver to XYZ all copies within its possession or within its control of customer lists, term sheets,
proposals, correspondence, contracts and all other documents and data relating to the Licensee
Agreements or the conduct of XYZ's business.

        As used herein, "Confidential Information" means any proprietary information, technical
data, trade secrets or know-how, including, but not limited to, ______________________, research,
product plans, products, services, customers, customer lists, markets, developments, inventions,
processes, formulas, technology, designs, drawings, engineering, manufacturing information,
marketing, finances or other business information disclosed by XYZ or otherwise received, devel-
oped or derived during the performance of this Agreement, either directly or indirectly in writing,
orally or by drawings or inspection of tangible items and in addition means the terms and conditions
of this Agreement.




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9.     CONFLICTING OBLIGATIONS.

        Agent represents and warrants that Agent has no outstanding agreement or obligation that is
in conflict with any of the provisions of this Agreement, or that would materially adversely affect
Agent's performance hereunder, and Agent agrees that Agent shall not enter into any such
conflicting agreement or obligation during the term of this Agreement.

10.    TERM AND TERMINATION

        (a)     Term. This Agreement shall continue in force for a fixed term of one (1) year from
the date hereof unless terminated earlier under the provisions of this Section 10. At the end of the
fixed term, this Agreement shall terminate automatically without notice unless prior to that time the
term of this Agreement is extended by the mutual written consent of the parties, which consent shall
include milestones for the extended term.

       (b)      Termination. Either party may terminate this Agreement for cause upon giving thirty
(30) days' prior written notice of a breach by the other hereunder, provided that such breach shall not
have been remedied during such period. A breach by Agent shall include, without limitation,
Agent's failure to meet the milestones described in Section 4(b) above.

       (c)      Effect of Expiration or Termination: Upon any expiration or termination all rights
and duties of the parties toward each other shall cease except:

                (1)     Commissions. The provisions of Section 5 shall remain in full force and
effect with respect to the initial term of Licensee Agreements concluded during the term of this
Agreement; provided, that upon the effective date of expiration or termination the commissions due
Agent shall be reduced to seventy percent (70%) of the commissions that would otherwise be due to
Agent.

                (2)    Transition. Upon termination of this Agreement, Agent shall diligently
cooperate with XYZ to effect a smooth and orderly transition in the initiation and negotiation of any
and all Licensee Agreements and in servicing the Licensees. From the time that a notice of
termination is received by either party until the effective termination date, Agent shall refer all
Licensee Agreement inquiries to XYZ, shall support existing Licensees, and shall cooperate fully
with any newly appointed licensing agent.

                (3)     Return of Materials. All ______________________, samples, literature,
translations, sales aids and Confidential Information of every kind provided to Agent shall remain
the property of XYZ. Within thirty (30) days after the expiration or termination of this Agreement,
Agent shall prepare all such items in its possession for shipment, as XYZ may direct, at XYZ's
expense. Agent shall not make or retain any copies of any of the foregoing.




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                 (4)     Limitation on Liability upon Termination. In the event of termination or non-
renewal by either party in accordance with any of the provisions of this Agreement, neither party
shall be liable to the other, because of such termination or non-renewal, for compensation,
reimbursement or damages on account of the loss of prospective profits or anticipated sales or on
account of expenditures, investments, leases or commitments in connection with the business or
goodwill of XYZ or Agent. XYZ's sole liability under the terms of this Agreement shall be for any
monthly fees under Section 4 hereof and/or any commissions under Section 5 hereof.

              (5)     Survivability. Sections 8, 10, 12, 13, 14 and 16 shall survive termination of
this Agreement.

11.     ASSIGNMENT. Agent acknowledges that the licensing agent services to be performed
hereunder are of a special and unique nature. Neither this Agreement nor any right hereunder or
interest herein may be assigned or transferred by Agent without the express written consent of XYZ.
 Any such attempted assignment shall be void and of no force or effect.

12.    INDEPENDENT CONTRACTOR. Nothing in this Agreement shall in any way be
construed to constitute Agent as an agent, employee or representative of XYZ, and Agent shall
perform the licensing agent services hereunder as an independent contractor. Since Agent is not an
employee of XYZ, it is understood that Agent is not entitled to any employee benefits during the
term of this Agreement. Agent agrees to furnish (or reimburse XYZ for) all tools and materials
necessary to accomplish this contract, and shall incur all expenses associated with performance.
Agent acknowledges and agrees that Agent is obligated to report as income all compensation
received by Agent pursuant to this Agreement, and Agent agrees to indemnify XYZ and hold it
harmless to the extent of any obligation imposed on XYZ (i) to pay in withholding taxes or similar
items or (ii) resulting from Agent's being determined not to be an independent contractor. In the
performance of all licensing agent services hereunder, Agent shall comply with all applicable laws
and regulations.

13.    INDEMNITIES.

        (a)     By XYZ. XYZ agrees to indemnify Agent from and against any and all claims,
actions and proceedings brought against Agent by third parties and arising out of (i) defects in, and
personal injury and property damage caused by, any XYZ GeneStone, and any similar matter
relating to the XYZ GeneStone; (ii) misrepresentations or omissions contained in any sales collateral
or other similar materials intended to be used in the sales process by Agent which were provided by
XYZ to Agent; or (iii) XYZ's negligence or willful misconduct. Agent agrees that XYZ at its sole
option shall be relieved of the foregoing obligations unless Agent (a) notifies XYZ promptly in
writing of such claim, suit or proceeding, (b) gives XYZ sole control and authority to defend and/or
settle such claim, action or proceeding, and (c) gives XYZ proper and full information and
assistance to settle and/or defend any such claim, suit or proceeding at Agent's expense.




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        (b)    By Agent. Agent agrees to indemnify XYZ from and against any and all claims,
actions and proceedings brought against XYZ by third parties and arising out of (i)
misrepresentations or omissions made by Agent; or (ii) Agent's negligence or willful misconduct.
XYZ agrees that Agent at its sole option shall be relieved of the foregoing obligations unless XYZ
(a) notifies Agent promptly in writing of such claim, suit or proceeding, (b) gives Agent sole control
and authority to defend and/or settle such claim, action or proceeding, and (c) gives Agent proper
and full information and assistance to settle and/or defend any such claim, suit or proceeding at
XYZ's expense.

14.  LIMITATION OF LIABILITY. EXCEPT FOR ANY LIABILITY ARISING UNDER
SECTION 13 ABOVE, XYZ'S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE
LIMITED TO THE COMPENSATION OF AGENT IN ACCORDANCE WITH SECTIONS 4
AND 5. IN NO EVENT SHALL XYZ BE LIABLE FOR ANY CONSEQUENTIAL,
INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, HOWEVER CAUSED, WHETHER
UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
EVEN IF XYZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO
EVENT SHALL XYZ BE LIABLE TO AGENT DUE TO A LICENSEE'S OR XYZ'S
NONPERFORMANCE OR MISPERFORMANCE UNDER THE LICENSEE AGREEMENT.

15.     EXPORT CONTROL. Agent understands and acknowledges that XYZ is subject to
regulation by agencies of the U.S. Government, including, but not limited to, the U.S. Department of
Commerce, which prohibit export or diversion of certain products and technology to certain
countries. Any and all obligations of XYZ to provide the ______________________ for the
Licensee Agreements, any documentation, or any media in which any of the foregoing is contained
to customers, as well as any other technical assistance, shall be subject in all respects to such United
States laws and regulations as shall from time to time govern the license and delivery of technology
and products abroad by persons subject to the jurisdiction of the United States, including the Export
Administration Act of 1979, as amended, any successor legislation, and the Export Administration
Regulations issued by the Department of Commerce, Bureau of Export Administration.

16.      MISCELLANEOUS. Both parties agree that there have been no prior or simultaneous oral
or written agreements between them. This written Agreement sets forth the entire agreement
between the parties and no waiver or modification of this Agreement shall be valid unless set forth
in a written agreement executed by the parties hereto. The waiver of a breach of any term hereof
shall in no way be construed as a waiver of any other term or breach hereof. If any provision of this
Agreement shall be held by a court of competent jurisdiction to be contrary to law, the remaining
provisions of this Agreement shall remain in full force and effect. Neither party shall have any
liability for its failure to perform its obligations hereunder when due to circumstances beyond
Agent's reasonable control. This Agreement shall inure to the benefit of and be binding upon each
party's successors and assigns. This Agreement is governed by the laws of the State of
_____________ without reference to conflict of laws principles. All disputes arising out of this
Agreement shall be subject to the exclusive jurisdiction of the state and Federal courts located in
_______________, California, and the parties agree and submit to the personal and exclusive



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jurisdiction and venue of these courts. Any notices required or permitted by this Agreement shall be
in writing and shall be addressed to the other party at the address shown at the beginning of this
Agreement or such other address of which such party may notify the other and shall be deemed
given upon delivery or, where delivery cannot be accomplished due to the fault of the addressee,
upon attempted delivery.


        IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
year first above written.


________________________________            XYZ, INC.
"Agent"


By: __________________________ By: _________________________

Name: __________________________ Name: _________________________
       (Print)                          (Print)

Title:__________________________ Title:_________________________




                                                -8-
                                        EXHIBIT A

LICENSEE AGREEMENTS

1.   Celebrity Arrangement (i.e., Licensee or XYZ has Signed An Agreement directly with the
     Celebrity):

     [Description to be provided by the parties]

     Commission:


2.   Non-Celebrity Arrangement (i.e., ____________, other non-celebrity items):

     Commission:



AGENT'S ACTIVITIES




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