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| Properrty AF21 |
1. Intellectual Property
1.1 Ownership of the Product Technology.
Buyer acknowledges, based on Seller’s representation, that the Seller is the sole owner of the manufacturing, sales, marketing and distribution rights for the Product Technology for North America and Buyer shall have no right, title, or interest therein or thereto other than the use and rights to such Product Technology in the manner and to the extent prescribed in this Agreement or otherwise approved in writing by Seller.
1.2 No Implied Licenses.
Each party shall exclusively own its own Intellectual Property and neither Party will have any claim or right to the Intellectual Property of the other by virtue of this Agreement except as otherwise provided herein. Neither Party will take any action or make any claim to any intellectual Property belonging to the other Party, whether during the term of this Agreement or thereafter, which is consistent with this Section 1. No right or license shall be implied by estoppel or otherwise, other than the rights and use expressed or granted in this Section.
1.3 Rights to use Product Technology.
(A) Grant. Subject to provisions of this Section 1.3 Seller hereby grants to Buyer, for the term of this Agreement, certain exclusive use of and rights exclusive of all Persons and Seller (as set forth in 1.3 (F), the “product and Enhanced Product”) including the exclusive rights within the Exclusive use of, sales, distribution and Marketing Territory and, (i) to use the Product and sell and have sold Enhanced Product for use on or in wood based products (ii) use, advertise, promote, display, market, distribute, sell and have sold Derivative Products that have been protected with the Enhanced Product; and (iii) use or have used the Product Technology and 3there of as more fully set forth herein while this Agreement is in effect and (iii) to obtain the exclusive use of and rights of the Product for application in the Enhanced Product or for use on or in any wood based material required for use in residential and commercial building construction in North America; and (iii) to set terms in place for the potential to obtain the exclusive use and rights to merchandise the Enhanced Product for use on or in any wood based materials required for use primarily in residential and commercial building construction worldwide; and
(B) Initial Disclosure. Within ten (10) days of execution of this Agreement Seller will deliver and communicate the Product Technology, Technical Data and Application Data to Buyer to enable Buyer to exercise its rights under the Agreement set forth in Section 1.3 (A) hereof. Seller will provide Buyer with sufficient technical support to ensure that Buyer may commence use of the Product and Enhanced Product pursuant to this Agreement.
(C) Notice of Unauthorized Use. In the event that either Party becomes aware of any actual or threatened commercially material infringement for the use of or rights of the Product that Party shall promptly notify the other Party and provide it with full details. Seller will use commercially reasonable means to eliminate any unauthorized use of Product, including pursuing legal action as appropriate. If Seller does not take appropriate action to protect Buyer use of or rights under this Agreement, including infringement, Buyer may pursue actions in its own right to eliminate any such unauthorized use or infringement.
(D) Reverse Engineering. Buyer agrees and covenants that at no time will the Buyer engage in or be a party to, or assist other persons in any form of Product chemical analysis, reverse engineering or component breakdown for the purpose of determining or evaluating Proprietary Information (as defined below about the Product).
(E) Exclusivity. Buyer shall have exclusive use of and rights to the Product for the purposes set out in 1(A) within the exclusive territory of North America. Furthermore, Seller shall prohibit and take all reasonable steps to prevent (including commencement of an action to enforce a temporary restraining order, preliminary and permanent injunction or similar relief) any Person from exercising or infringing upon the use of or 4rights granted under this Agreement within the Exclusive Territory of Buyer.
1.4 Use of Product.
(A) Protection of Sellers Goodwill. In order to protect the goodwill of the Seller and Buyer and to maintain uniform standards of operation to promote broad recognition of Sellers product for the mutual benefit of Seller and Buyer, Buyer shall adhere to reasonable rules, regulations, procedures, programs, policies, processes, requirements and standards (“Quality Standards”) relating to the application, promotion, advertising and marketing of the Sellers Product as prescribed by Seller from time to time.
(B) Seller Approval. Buyer will utilize only such advertising and promotional materials which have been reviewed by Seller, which shall be deemed acceptable if Seller does not respond in writing within ten (10) days of Buyers submission of such material for acceptance.
(C) Quality Control. Seller shall provide Buyer with Sellers Quality Standards for specifications, composition and quality in respect of the use of the Product Technology and Product Application as are in force from time to time. Seller shall institute appropriate procedures and policies and will abide by in all material respects to such Quality Standards therefore provided by Seller to Buyer. Seller will supply Buyer with quality control testing standards procedures and guidelines so that the Buyer may determine that the application of the Product or Enhanced Product performed by the Buyer or its customer(s) meets such written standards of composition, specifications and quality as specified by Seller. Seller shall have the right to require that treated materials that do not meet such standards be retreated or not sold as material treated with Product of the seller. Buyer is authorized to provide independent third party quality control inspection to be able to determine whether or not the Sellers written specifications and standards are met. The Seller also has the option 5and Buyer encourages providing its own third party testing program for the Buyer.
(D) Buyers Rights to Change Marks and Trade Name. Seller specifically agrees that the Buyer shall have the right to substitute, alter and/or add identifying services, marks, trade names of the Enhanced Product.
1.5 Confidentiality.
(A) Obligation of Nondisclosure. Except as otherwise provided in this Agreement, each Party agrees that it will with respect to the Confidential & Privileged Information and Trade Secrets (collectively, the "Proprietary Information") of the other Party: (i) protect the confidential and proprietary nature of the Proprietary Information of the Disclosing Party from disclosure to Persons who are not employees of the Receiving Party; and (ii) use great care in the selection and assignment of personnel who receive the Disclosing Party’s Proprietary Information and in that regard to restrict access to the Disclosing Party’s Proprietary Information within the organization to a limited number of persons who must necessarily have such information for the purposes of giving effect to this Agreement and who have been advised of the restrictions contained herein, including the limitations placed on the use of Proprietary Information; and (iii) under no circumstances give any competitor of the Disclosing Party, or other third Party, direct access to the Disclosing Party’s Proprietary Information without the prior written consent of the Disclosing Party; and (iv) use the Proprietary Information of the Disclosing Party solely for the purpose of properly and lawfully performing and exercising of the Receiving Party's obligations and rights under this Agreement; and (v) not reproduce the Proprietary Information received from the Disclosing Party in any form except for internal use of the Receiving Party or as otherwise permitted by this Agreement and to include in any such reproduction any ownership or confidentiality legends that the Disclosing Party may have included in or with the original disclosure.
(B) Exceptions. The Receiving Party shall not be obligated to maintain in confidentiality any: (i) Information which is known to the Receiving Party before disclosure by the Disclosing Party, so long as such knowledge is documented by written or other tangible evidence; and (ii) Information which is available to the public independently of the Receiving Party; and (iii) Information which is developed independently by employees of the Receiving Party who did not have access to the Disclosing Party’s Proprietary Information so long as such independent development is documented by written or other tangible evidence; and (iv) Information which is disclosed to the Receiving Party without obligation of nondisclosure by a third Party who is legally entitled to disclose the information; and (v) Information which is disclosed by the Disclosing Party to a third Party without requiring the third Party to maintain the information in confidence; and (vi) Information which becomes available to the public without breach of this agreement by the Receiving Party, following its disclosure to the Receiving Party by the Disclosing Party; and (vii) Information required to be disclosed by law, provided that the Receiving Party shall first notify the Disclosing Party of such requirement and cooperate with respect to any reasonable steps available for the further protection of the Information; or (viii) Information that is inherently disclosed in the unrestricted use, lease, sale, or other distribution of any present or future product or service produced by, for or under authorization of the Disclosing Party or in publicly available documentation for any such product or service.
(C) Return of Information. Upon termination of this Agreement, the Receiving Party will and promptly upon the Disclosing Party’s request either return, or destroy all copies of any advertising or promotional materials supplied to the Receiving Party by the Disclosing Party and materials containing Confidential and Privileged Information or Proprietary Information of the Disclosing Party.
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