CONTENTS
1. Interpretation 2
2. Licence 2
3. Quality of Licensed Products 3
4. Use of the Property 4
5. Infringements 4 - 5
6. Jordan's Obligations 5 - 6
7. Consideration 6
8. Calculation and Payment of Royalties 6 - 7
9. Payments 7 - 8
10. Affiliated's Obligations and Undertakings 8 - 11
11. Indemnity 11
12. Term and Termination 11 - 12
13. Limitation of Liability 12
14. Confidentiality 13
15. Notices 13 - 14
16. Force Majeure 14
17. General 14 - 15
18. Miscellaneous 15
SCHEDULE 1 16
Definitions and Interpretation 16 - 19
SCHEDULE 2 20
Manufacturing Agreement 20 - 21
SCHEDULE 3 22
Distribution Agreement 22 - 23
SCHEDULE 4 24
Statement 24
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DATE: August 31, 2000 NO.: JGP 004
PARTIES:
(1) JORDAN GRAND PRIX LIMITED (a company registered in England with
number 2417588) whose registered office is at Dadford Road, Silverstone,
Northamptonshire, England NN12 8TJ (JORDAN); and
(2) AFFILIATED RESOURCES CORPORATION (a company registered in USA, with
I.R.S. Employer I.D. Number 84-1045715) whose principal place of business is
at 3050 Post Oak Boulevard, Suite 1080, Houston, Texas, USA 77056
(AFFILIATED).
1. INTERPRETATION.
1.1 The definitions and general provisions in schedule 1 apply to this
agreement.
2. LICENCE.
2.1 Jordan grants to Affiliated, on the terms of this agreement, the
non- exclusive right and licence to use the Property in the
Territory during the Term, and if the parties agree, then during the
Renewal Term, solely in
connection with the manufacture or Distribution of the Licensed
Products.
2.2 Affiliated must not use the Property other than in connection with
the manufacture or Distribution of the Licensed Products without the
prior written consent of Jordan.
2.3 Affiliated must not sell the Licensed Products packaged together
with any other product without the prior written consent of Jordan.
2.4 The right and licence granted pursuant to this agreement is
personal to Affiliated and does not include any right to assign or
grant sublicenses, or to have the Licensed Products manufactured or
Distributed for it by
any third party without Jordan's prior written consent.
2.5 In the event Affiliated wishes to contract with a third party to
manufacture the Licensed Products on its behalf, Affiliated shall not do
so without the prior written consent of Jordan. Once such prior
written consent has been obtained, Affiliated will not contract with
such third
party unless such third party has first entered into a Manufacturing
Agreement.
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2.6. In the event Affiliated wishes to with a third party to distribute
Licensed
Products, Affiliated shall not do so without the prior written consent
of
Jordan. Once such prior written consent has been obtained, Affiliated
will not contract with such third party unless such third party has first
entered into a Distribution Agreement.
2.7 The agreement does not give Affiliated the right to use the logos
or marks of any Sponsor, except to the extent that such logos are
contained
in the Photograph and the Photograph is used in accordance with this
agreement.
2.8 If requested to do so by Jordan, Affiliated will apply jointly with
Jordan to the registrar of trade marks in any country within the Territory
for the registration of the licence to Affiliated, and for this purpose
will enter into a registered user agreement in a form reasonably required
by Jordan.
3. QUALITY OF LICENCE PRODUCTS.
3.1 All Licensed Products and Materials manufactured by Affiliated
using
the Property shall comply with standards of quality in relation to
their manufacture, materials used, workmanship, design, packaging,
storage
and safety as are agreed by Jordan from time to time and as are
required by any relevant laws or regulations of any country in the
Territory in which the Licensed Products are manufactured and or
Distributed.
3.2 Affiliated will submit to Jordan for its approval a pre-production
prototype and two samples of any Licensed Product and Material
which it proposes to manufacture or Distribute, pursuant to this
agreement and Affiliated will not manufacture or Distribute any
Licensed Products until it has received Jordan's prior written
approval;
3.3 Jordan will notify Affiliated if it does not approve any Licensed
Product or Material supplied to it in accordance with subclause 3.2
within 28 days of receipt of such item giving its reasons for
withholding its approval and indicating any changes to the Licensed
Products or Material which may make it acceptable to Jordan;
3.4 For the purpose of ensuring that Affiliated is complying with the
quality standards:
3.4.1 Affiliated will as reasonably requested by Jordan from time
to time supply to Jordan at Affiliated's expense samples of the
Licensed Products and Materials for the purpose of inspecting and
testing the same; and
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3.4.2 Jordan by its authorised representatives may on reasonable
notice and at its own expense visit Affiliated's premises during
normal business hours to inspect the method of manufacture of
the Licensed Products, the Materials used, and the storage of the
Licensed Products.
3.5 Licensed Products using the Property which in Jordan's opinion are
not of the quality required by Jordan under clause 3.2, or do not
comply with clause 3.1, will immediately on notice being given by
Jordan to
Affiliated be withdrawn from manufacture and Distribution by
Affiliated. Such Licensed Products shall either be corrected or
destroyed
or returned to Jordan at Jordan's option. Jordan may inspect any such
corrected Licensed Products before they are re-marketed.
3.6 If at any time Affiliated becomes aware of any defect in any
Licensed Product manufactured by Affiliated it shall immediately inform
Jordan.
3.7 Jordan's approval pursuant to clause 3.2 relates solely to quality
and use of the Property by Affiliated on the Licensed Products and not
for any
other purposes including the quality of the Licensed Products and the
compliance of such Licensed Products with all applicable laws.
3.8 If Jordan has any grounds for reasonably believing, after
consulting the Licensee that clauses 10.1.19 and 10.1.20 have not been
complied with, it may require that the Licensee suspend Distribution of
the Licensed
Products in all or part of the Territory until such time as the
Licensee has shown compliance to the reasonable satisfaction of Jordan
with clauses
10.1.19 and 10.1.20 in respect of that part of the Territory to which
the
suspension applies.
3.9 No less than one month before commencing Distribution of the
Licensed Products in any part of the Territory, the Licensee shall
produce to
Jordan:
3.9.1 evidence that it has complied with clauses 10.1.18, 10.1.20,
and 10.2;
3.9.2 a report from an independent expert appointed by agreement
between the parties, or in the absence of such agreement by the
president for the time being of the Institute of Chartered
Accountants confirming compliance with clause 10.1.19.
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4. USE OF THE PROPERTY.
4.1 All use of the Property by Affiliated will be for the benefit of
Jordan and the goodwill accrued by Affiliated arising from its use of
the Property will accrue to and be held in trust by Affiliated for
Jordan which
goodwill Affiliated agrees to assign to Jordan at its request at any
time
whether during or after the Term.
4.2 Whenever the Property is used by Affiliated it shall be accompanied
by wording to show that the Property is used by Affiliated with the
permission of Jordan and the terms of such wording and its placing shall
be as reasonably requested by Jordan.
4.3 Affiliated will use the Property in the form stipulated by Jordan
from time to time and will observe all reasonable directions given by
Jordan as to colours and size of the representations of the Property
and its manner and disposition on the Material.
4.4 Affiliated shall not use any mark or name confusingly similar to
the Property in respect of any goods similar to the Licensed
Products and
shall not use the Property on any goods or services other than the
Material.
4.5 Affiliated shall not use the Property as part of any corporate
business or trading name or style of Affiliated.
5. INFRINGEMENTS.
5.1 Affiliated will give Jordan full particulars in writing of any use
or proposed use by any other person, firm or company of a trade
name,
trade mark or get-up of goods or mode of promotion or advertising
which amounts or might amount either to infringement of Jordan's
rights in relation to the Property or to passing-off or unfair
competition
or any analogous event under the law of any relevant jurisdiction
immediately upon becoming aware of such use or proposed use.
5.2 If Affiliated becomes aware that any other person, firm or company
alleges that use of the Property infringes any rights of another party
or that the Property is otherwise attacked or attackable Affiliated
will
immediately give Jordan full particulars in writing of such allegation
and
will make no comment or admission to any third party in respect of
such
allegation.
5.3 Jordan will have the conduct of all proceedings relating to the
Property and shall in its sole discretion decide what action if any to
take in respect
of any claim or counterclaim brought or threatened in respect of the
use of the Property. Jordan will not be obliged to bring or defend any
proceedings in relation to the Property if it decides in its sole discretion
not to do so.
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5.4 If use of the Property or the Distribution of the Licensed Product
is prohibited in any part of the Territory the licence to use the
Property in
that part of the Territory will be terminated.
5.5 Affiliated will at the request of Jordan give full co-operation to
Jordan in any action, claim or proceedings brought or threatened in
respect of
the Property and Jordan will meet any reasonable expenses incurred by
Affiliated to third parties in giving such assistance.
6. JORDAN'S OBLIGATIONS.
6.1 Affiliated may make use of statements by Jordan's employees on the
Materials, subject to Affiliated obtaining Jordan's prior written consent
to the contents of the statement, the fact that is to be attributed to a
Jordan employee and the proposed use of such statement.
6.2 Jordan will offer for sale on behalf of Affiliated, on such terms
as may be agreed between the parties, a selection of Affiliated's
Licensed
Products chosen by Jordan on the Jordan web site.
6.3 If Jordan creates and or manages any permanent free-standing
boutiques featuring any other licensed products, Jordan will offer for
sale on behalf of Affiliated, on such terms as may be agreed between the
parties, a selection of the Licensed Products chosen by Jordan.
6.4 During each Year, Jordan will permit Affiliated use of a Show Car
on such terms as may be agreed between the parties, for five
consecutive
days in the United States of America and one day in each of Germany,
Japan, and the United Kingdom, excluding four days transportation
time per Year.
6.5 Affiliated may purchase a maximum number of 10 additional days' use
of the Show Car on such terms as may be agreed between the parties.
6.6 It is a condition of sub-paragraphs 6.4 and 6.5 that:
6.6.1 Affiliated arranges suitable insurance in the sum of 50,000
against the possibility of damage to the Show Car whilst it is on
display or, having been delivered to the display site, whilst it
is
being moved into position for such display or being taken off
such display prior to it being taken from the display site; and
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6.6.2 Affiliated will pay all reasonable transportation costs of
the Show Car.
6.7 Jordan will use its reasonable endeavours to make a Show Car
available for the dates required by Affiliated pursuant to clauses 6.4
and 6.5.
Affiliated acknowledges that the use of the Show Car on specific dates
is
subject to availability and Jordan's right to refuse availability
where the
time taken to transport the Show Car will in Jordan's opinion be such
as
to deny other parties reasonable access to the Show Car.
6.8 Jordan will allocate one half-page of advertising space in each
future
issue of the J Magazine on such terms as may be agreed between the
parties for use by Affiliated subject to Jordan's approval of the
advertisement and payment by Affiliated of the relevant advertising
fee.
6.9 Jordan will use reasonable endeavours to encourage third parties at
events who managed temporary kiosks offering Jordan-branded
products for sale at Races in United Kingdom, the United States of
America, Japan, and Germany, and Jordan-specific supporter-related
events to stock a selection of the Licensed Products.
6.10 Jordan will use reasonable endeavours to assist Affiliated in
obtaining, at cost, tickets to Races held during the Term in United
Kingdom,
Germany, Japan, and the United States of America.
7. CONSIDERATION.
7.1 In consideration of the grant of rights to Affiliated in the
Territory pursuant to this agreement, Affiliated agrees to pay to
Jordan in accordance with clause 8:
7.1.1 either, or both of the following sums which are not
refundable in any circumstances and is not to be set off or
treated as an
advance against future royalty:
7.1.1.1 $75,000 during the Term;
7.1.1.2 $150,000 during the Renewal Term;
and
7.1.2 15 per cent of the Net Invoice Price of each Licensed
Product
distributed through wholesale means in the United States of
America; or
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7.1.3 30 per cent of the Net Invoice Price of each Licensed
Product
distributed through wholesale means in the Territory, excluding
the United States of America; or
7.1.4 30 per cent of the Net Invoice Price of each Licensed
Product sold directly to consumers.
8. CALCULATION AND PAYMENT OF ROYALTIES.
8.1 The sum referred to in clause 7.1.1 will be paid to Jordan as
follows:
8.1.1 US$ 5,000 on signature of the agreement;
8.1.2 US$70,000 on 1 March, 2001;
8.1.3 and pursuant to the Renewal Term being agreed to by the
parties, then:
8.1.3.1 US$75,000 on 1 March, 2002; and
8.1.3.2 US$75,000 on 1 March, 2003.
8.2 Within 30 days:
8.2.1 of the end of each Month, Affiliated shall complete and
deliver to Jordan a Statement, in accordance with schedule 4, for
sales
detailing Licensed Products Distributed during each Month
in the United Kingdom, Germany, Japan, and the United States
of America; and
8.1.2 of the end of each Quarter, Affiliated shall complete and
deliver to Jordan a Statement, in accordance with schedule 4, for
sales
detailing the Licensed Products Distributed during each Quarter
throughout the Territory, excluding Licensed Product Distributed
in the United Kingdom, Germany, Japan, and the United States
of America.
8.3 Receipt or acceptance by Jordan of any Statements, or payments made
by Affiliated in accordance with subclauses 7.1.2, 7.1.3, or 7.1.4 shall
not prevent Jordan from questioning the correctness of the Statements
or payments at any time and in the event that any mistakes in payment
or inconsistencies are discovered in the Statements or payments, they
shall
immediately be rectified and the appropriate payments made to Jordan
by Affiliated.
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8.4 Within 30 days of the end of each calendar Quarter, Affiliated
shall pay
to Jordan the amount of any royalty payments due to Jordan pursuant to
subclauses 7.1.2 and 7.1.3, as itemised on the Statements in respect of
such Quarter referred to in clause 8.2.
8.5 Subject to Jordan providing Affiliated with two working days'
notice, Affiliated must make available to Jordan or its authorised
representatives all information, documents, books of account and other
records relating to the Distribution of Licensed Products by
Affiliated,
from the Commencement Date up to the sixth anniversary of the
Termination Date and shall permit Jordan to make copies of any such
documents, books of account and records for the purpose of making an
audit of sales of Licensed Products. Jordan shall pay for the fees and
expenses of such audit unless the audited books of Affiliated reflect a
discrepancy of more than 1.5 percent of the royalty reported and paid
to
Jordan under subclauses 7.1.2 and 7.1.3. In such an event Affiliated
shall pay the fees and expenses incurred by Jordan in respect of such
audit.
9. PAYMENTS.
9.1 All sums due Jordan will be paid by Affiliated to be received by
Jordan
on the due dates for payment of such sums at:
AIB (GB) Bank plc
18 St. Edmunds Road
Northampton
England NN1 5EM
Account: 17076065
Sort Code: 23-85-87
9.2 All sums payable under this agreement are exclusive of value added
tax or other applicable taxes or duties, for which Affiliated will be
additionally liable. Such sums will be paid without any deduction or
withholding except any tax which Affiliated is required by law to
deduct
or withhold, in which case the payment made by Affiliated will be
increased to the extent necessary to ensure that Jordan receives a net sum
equal to the sum it would have received had there been no deduction or
withholding.
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9.3 All sums not paid by Affiliated to Jordan by the due date will
incur interest at the rate of five percentage points above the
then current annual base rate of AIB (GB) Bank plc on the amount
outstanding for the period from the due date to the date of
receipt of cleared funds and
such interest will be paid no later than one month from the due date
of
the original payment failing which it will itself be added to the
amounts
outstanding and bear interest at the same rate.
10. AFFILIATED'S OBLIGATIONS AND UNDERTAKINGS.
10.1 Affiliated warrants and undertakes that it:
10.1.1 will set up an active Distribution network for Licensed
Products
in the United States of America, the United Kingdom, and
Germany no later than 1 March, 2001; and in Japan no later than
1 November, 2001; and will use its best endeavours to promote
and develop the Distribution of the Licensed Products
throughout the Territory;
10.1.2 will ensure that its activities will do nothing to harm the
reputation, image or goodwill of Jordan or the Property or any
of its Sponsors;
10.1.3 will not permit the issue of any press release or media
statement relating in any way to Jordan or the Property without
the prior
written approval of Jordan;
10.1.4 will at the request of Jordan supply to it or, as it may
direct, Licensed Products not exceeding two cases of each
Licensed Product in any Year at no charge for testing by Jordan's
technical department;
10.1.5 will submit to Jordan a Business Plan 30 days after the
agreement is signed, and then again by 1 July, 2001, with such
Business Plan including details of distribution and sales
forecasts; should the parties agree to the Renewal Term, then such
Business Plan shall be submitted to Jordan two months prior to
each Season;
10.1.6 will ensure that any Licensed Products or Material conforms
with any sample or prototype, approved by Jordan in respect of
them;
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10.1.7 will ensure that all Licensed Products and Material will
comply with all laws applicable to such items in any part of the
Territory
in which they are manufactured or Distributed and
acknowledges that any approval given by Jordan pursuant to
subclause 3.2 is without prejudice to Affiliated's warranty in
this subclause;
10.1.8 owns and is exclusively entitled to manufacture or
Distribute, the Licensed Products in the Territory;
10.1.9 is entitled to enter into this agreement;
10.1.10 is able to carry out its obligations in the agreement;
10.1.11 will not infringe the rights of any third party by the
manufacture or Distribution, of the Licensed Product using the
Property;
10.1.12 will ensure that each and every one of the Licensed Products
and the Material will contain such copyright and/or trademark
and/or such other relevant notices as shall be required and/or
approved by Jordan from time to time and that no copyright
notice in any other name shall be affixed to any such item
without Jordan's consent;
10.1.13 will not at any time do or suffer to be done any act or thing
which will in any way adversely impair or adversely affect the
rights and interests of Jordan in the Property;
10.1.14 will not make any representations or do any act which may be
taken to indicate that it has any right title or interest in or to the
ownership or use of any of the Property except under the terms
of this agreement, and acknowledges that nothing contained in
this agreement shall give Affiliated any right, title or interest
in or to the Property save as granted by this agreement;
10.1.15 will only Distribute the Licensed Product either to bona fide
independent wholesalers, retailers for resale and distribution
directly to the public or directly to consumers, in all cases in
the
course of normal cash trading;
10.1.16 will do nothing which might indicate that any Licensed Product
is personally endorsed by a Driver;
10.1.17 will spend at least $25,000 per annum in advertising and
promoting the Licensed Products, such amount will include:
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10.1.17.1 at least one half-page advertisement in each
issue of J Magazine during each Year of the
Term; and
10.1.17.2 the placement of at least one "win" advertisement
in the event that Jordan wins a Race held in the
United Kingdom, the United States of America,
Germany and/or Japan during the Term, with
such advertisement appearing in the United
Kingdom, the United States of America,
Germany and/or Japan within 30 days of the
Race win in that country. Such advertisement
must be approved in advance, in writing, and will
appear in a publication of Affiliated's choice
within the country of the Race win by Jordan;
10.1.17.3 use of a Show Car for five consecutive days in
the United States of America;
10.1.18 will, at its own expense, carry product liability and
comprehensive general liability insurance covering the
Licensed Products to a minimum amount of _____________.
Upon request by Jordan, Affiliated will provide Jordan with
copies of the policy documents and most recent premium receipts
relating to such insurance;
10.1.19 will ensure that all products which are part of the Licensed
Products are safe, fit for their purpose and do not pose any
health or environment hazard whether by use, method of
manufacture of otherwise; and
10.1.20 have the benefit of all approvals, licences or other
requirements in respect of the Licensed Products that are
mandatory or recommended in every part of the Territory in
which they are Distributed.
10.2 The insurance referred to at clause 10.1.18 will provide:
10.2.1 that the insurers shall waive any and all rights of subrogation
against Jordan;
10.2.2 that Jordan shall be named as additional insured for its
respective rights and interests as owner subject to a severability
of interests clause;
10.2.3 that Jordan shall be named as loss payee;
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10.2.4 that it shall not be invalidated so far as concerns Jordan by
any
action or inaction by Affiliated and that the interest of Jordan
regardless of any breach or violation by Affiliated of any
warranty, declaration or condition contained in the Insurance is
insured;
10.2.5 for payment to Jordan in full before either Affiliated's claim
or
the claims of Affiliated's mortgagees, or other lien holder of
Affiliated who might also be named as insureds or additional
insureds or loss payees on the Insurance;
10.2.6 that it shall be endorsed that it is a primary insurance
without any
right of contribution and that any other insurance of Affiliated
shall be secondary or excess insurance;
10.2.7 that it shall specifically refer to this clause;
10.2.8 that it shall provide that Jordan will be given 30 days' prior
written notice before any adversely material alteration to or
cancellation of the Insurance;
10.2.9 that it waives any right of the insurers to any set off or
counterclaim or any other deduction whether by attachment or
otherwise in respect of the liability of Affiliated, Jordan, any
nominated interested third party, or others insured under the
Insurance; and
10.2.10 world-wide coverage (subject only to such reasonable
exceptions as may be notified to and accepted by Jordan).
10.3 Should Affiliated fail to keep the Insurance in full force and
effect Jordan shall have (inter alia) the option to pay the
premiums due on the
Insurance or to take out new insurance satisfactory to Jordan in which
event any sums paid by Jordan in this regard shall be repaid to Jordan
within 14 days of Jordan notifying Affiliated in writing of the premium
paid.
10.4 Affiliated shall supply such information to Jordan as Jordan may
require
in connection with the Insurance or any claim thereunder.
10.5 Affiliated shall not by any act or omission invalidate the
Insurance or
cause the premium in respect thereof to be increased.
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11. INDEMNITY.
11.1 Affiliated will be liable for and will indemnify and hold Jordan
and its
officers, servants and agents harmless on a full after tax indemnity
basis
against any and all liability, loss, damages, costs, legal costs,
professional and other expenses of any nature whatsoever incurred or
suffered by Jordan whether direct or consequential including but
without
limitation any economic loss or other loss of profits, business or
goodwill arising out of:
11.1.1 any dispute or contractual tortuous or other claims or
proceedings brought against Jordan by a third party claiming
relief against Jordan by reason of the manufacture, use or
Distribution of any Licensed Products by Affiliated or the use of
the Property;
11.1.2 any breach by Affiliated of the warranties, undertakings
and obligations set out in this agreement;
11.1.3 any offer for sale of the Licensed Products by Jordan;
11.1.4 any defects in any Licensed Products manufactured, promoted or
distributed by Affiliated;
11.1.5 any act or omission of any third party manufacturer or
distributor appointed by Affiliated to manufacture or distribute
the Licensed Product.
12. TERM AND TERMINATION.
12.1 Either party may terminate this agreement without prejudice to its
other remedies immediately by notice in writing to the other if that
other either:
12.1.1 commits a breach of this agreement, provided that if the
breach is capable of remedy the notice shall only be given if the
party in
breach has not remedied the breach within one month of having
been given notice in writing specifying the breach and requiring
it to be remedied; or
12.1.2 commits four or more breaches of this agreement whether or not
such breaches are material or remedied in any period of 12
months; or
12.1.3 suffers an insolvency Event;
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12.2 Termination of this agreement for whatever reason shall not affect
the accrued rights of the parties arising in any way out of this
agreement as
at the Termination Date and in particular but without limitation the
right
to recover damages from the other.
12.3 On the Termination Date Affiliated shall cease to make any use of
the Property save that if Affiliated has a stock of Licensed Products
existing
or in the course of manufacture or unfilled orders on hand at the
Termination Date Affiliated may, but only with Jordan's written
consent, Distribute such stock on the terms of this agreement or on
such
other terms as may be agreed for a period of 90 days.
12.4 If the parties can not agree terms for Affiliated to Distribute
the Licensed Products referred to in clause 12.3, or if following
the expiration o the period referred to in clause 12.3 above
Affiliated still has stock of the Licensed Products which have not been
Distributed,
Affiliated shall immediately destroy or procure the destruction of
such Licensed Products and shall provide to Jordan a certificate in a
form acceptable to Jordan evidencing such destruction signed by an
officer of
Affiliated or by an independent third party as Jordan may require.
12.5 All provisions of this agreement which in order to give effect to
their meaning need to survive its termination will remain in full force
and
effect.
12.6 Affiliated shall give written notice to Jordan no later than 1
November, 2001 indicating its desire to proceed with the Renewal Term.
Jordan retains the sole and exlcusive right to approve of such renewal
request, or to deny such request outright. In the event that the
Renewal Term is not entered into, 12.3 above shall govern the sell off
of any inventory of Licensed Products.
13. LIMITATION OF LIABILITY.
13.1 Affiliated agrees that:
13.1.1 except liability in respect of death or personal injury
resulting from Jordan's negligence, Jordan's liability to
Affiliated arising
out of this agreement will not exceed_____________;
13.1.2 Jordan will not be liable for any loss incurred after the
Termination Date.
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14. CONFIDENTIALITY.
14.1 Each party (RECIPIENT) undertakes with the other that it will not
during the Term or at any time after the Termination Date use (except
as
required or permitted by this agreement) or divulge or communicate to
any person any of the secrets or other confidential information
relating to
the affairs or business of the other which the Recipient may receive
or
obtain in the contemplation, negotiation or performance of this
agreement but so that this restriction will cease to apply to
information
which may become public knowledge otherwise than by the Recipient's
breach of this agreement or where the disclosure of such information
is
required by law.
15. NOTICES.
15.1 Any notices or other communication given under this agreement must
be in writing and served:
15.1.1 by hand delivery to the recipient; or
15.1.2 by first class or airmail addressed to the relevant party's
address as specified in this agreement, or such other address as a
party
may have last notified to the others in writing; or
15.1.3 by fax to the following fax numbers, or such other fax
numbers as a party may have last notified to the other in writing,
together
with a confirmatory copy sent by first class post:
Party Number
Jordan
attention: Frank Madden and 011-44-1753-868-855
attention: Eddie Jordan 011-44-1327-850-861
Affiliated
attention: Peter Vanucci 00-1-713-355-8949
15.2 Any notice given pursuant to clause 15.1 is deemed to have been
served:
15.2.1 if delivered by hand, at the time of delivery;
15.2.2 if sent by post, two clear Business Days or if by airmail,
five clear Business Days, after the date of posting; and
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15.2.3 if sent by fax, at the completion of transmission during
business hours at its destination or, if not within business
hours, at the opening of the next period of business hours, but
subject to
15.2.3.1 proof by the sender that it holds a printed
transmission report confirming despatch of the
transmitted notice;
15.2.3.2 the sender not receiving any telephone calls from
the recipient, to be confirmed in writing, that the
fax has not been received in a legible form; and
15.2.3.3 despatch of the notice by post in accordance with
clause 15.1.3 on the same day as its
transmission.
15.3 For the purpose of clause 15.2 BUSINESS HOURS means between 0900
and 1730 on a Business Day.
16. FORCE MAJEURE.
16.1 Neither Party is to be liable to the other for failure to perform
any obligation under this agreement if and so long as the failure
is caused by
circumstances beyond its control, including without limitation, war,
insurrection, riot, fire, explosion, flood, third party injunction,
national
defence requirements, acts or regulations of national or local
governments, or act of God.
16.2 Force Majeure is not to affect the obligation of Affiliated to pay
Jordan any amounts then due or which become due under this agreement.
16.3 A party becoming aware of any Force Majeure must promptly notify
the other party in writing of the relevant facts and any likely delay
or other
effect and both parties will use their best endeavours to overcome
such
limitations.
16.4 If Force Majeure continues for two months and either party is
unfairly prejudiced as a result, that party may by written notice
terminate this
agreement with immediate effect without liability to the other party
for
such termination.
<PAGE>
17. GENERAL.
17.1 This document is the entire agreement between the parties in
respect of the subject matter to which it relates and supersedes all
other agreements
or arrangements, whether written or oral, express or implied, between
the parties. No variations of this agreement shall be effective unless
made in writing signed by both parties or their authorised agents.
17.2 Neither party shall be affected by any delay or failure in
exercising or any partial exercising of his rights under this agreement
unless it has
signed an express written waiver or release.
17.3 Nothing in this agreement shall create a partnership or establish
a relationship of principal and agent or any other fiduciary
relationship
between the parties.
17.4 This agreement is personal to the parties and will be performed by
the parties and the rights and obligations of the parties are not
capable of
being assigned or sub-contracted or otherwise dealt with in anyway
except with the prior written consent of the other party.
17.5 If any provision of the agreement is held by any competent
authority to be invalid or unenforceable in whole or in part, the
validity of the other
provisions of the agreement will not be affected.
17.6 This agreement may be executed in any number of counterparts each
of which when executed and delivered will be an original, but all the
counterparts will constitute one and the same document.
17.7 Any dispute relating to this agreement will be decided by
arbitration conducted in accordance with the Arbitration Act 1996
by a single
arbitrator in London to be agreed between the parties or, failing such
agreement within 30 days of a request by either party to appoint an
arbitrator, by an arbitrator appointed by the President for the time
being,
or next senior officer available, of the Law Society of England and
Wales. The decision of such arbitrator will be final and binding on
the
parties.
17.8 The interpretation, validity and performance of this agreement
shall be governed by the laws of England and Wales.
18. MISCELLANEOUS.
18.1 Pursuant to the payment of the consideration noted in 8.1.1 and
8.1.2, if
Affiliated calculates that delivery of the Licensed Products at the
rates quoted in 7.1.2, 7.1.3, & 7.1.4 would be an inordinate financial
burden on Affiliated, Jordan agrees to review such rates during the
Business Plan submitted by Affiliated 1 July, 2001. Jordan retains the
right to have such calculations reviewed by an independent auditor, at
Affiliated's expense, prior to making any decision on any such
potential
modification of rates quoted herein.
<PAGE>
For and on Behalf of For and on Behalf of
Jordan Grand Prix Ltd. Affiliated Resource Corp.
_____________________ _____________________
Name: _______________ Name: ________________
Title: _________________ Title: _________________
Date: _________________ Date: __________________
<PAGE>
SCHEDULE 1
DEFINITIONS AND INTERPRETATION
1. Unless the context otherwise requires the following definitions shall
apply throughout this agreement:
AGREED FORM a document in a form agreed by the parties and
included by them for the purpose of
identification.
BUSINESS DAYS any day which banks are open for business in the
City of London, not being a Saturday or Sunday.
BUSINESS PLAN a business plan detailing, in relation to the
Licensed Products, marketing plans, investment and
projected sales in the key markets of the United
Kingdom, Germany, Japan, and the
United States of America, and full details of
channels of distribution against the projected
sales.
CAR a Jordan Formula One car as used by Jordan in
the World Championship from time to time
during the Term.
COMMENCEMENT DATE 1st March, 2001.
DISTRIBUTE to administer, market, promote, sell, exchange,
hire or otherwise dispose of by any means and
distribution shall be construed accordingly.
DISTRIBUTION
AGREEMENT the Agreed Form document set out at schedule 3.
DRIVERS Jarno Trulli and Heinz-Harald Frentzen, or any
persons substituted for either or both of them
from time to time.
FIA Federation Internationale de'Automobile or its
successors.
FORCE MAJEURE an event or circumstance referred to in clause 16.
INSOLVENCY EVENT where the relevant party:
<PAGE>
1. appoints a receiver, administrative
receiver, administrator, manager or official
receiver over its affairs;
2. goes into liquidation, unless for the
purposes of a solvent reconstruction or
amalgamation;
3. has distress, execution, sequestration
levied or issued against any part of its
assets and is not paid within seven days;
4. is otherwise unable to pay its debts as
they fall due within the meaning of section
123 Insolvency Act 1986;
5. ceases or threatens to cease to carry on its
business or a substantial part of its
business;
6. is subject to any analogous event under
the law of any relevant jurisdiction.
J MAGAZINE Jordan's magazine, published quarterly.
LICENSED PRODUCTS the following automotive aftermarket liquids and
aerosols for commercial non-racing purposes,
utilising the Property as the main identifier for each:
Fuel Treatments and Additives including Octane
Boosts, Gas Treatments, & Fuel System
Cleaners;
Cooling System Products;
Engine Cleaners & Solvents;
Brake System Fluids;
Power Steering Fluids;
Lubricants and Penetrants; and
Emergency Products including tire inflator
sealers.
<PAGE>
MANUFACTURING
AGREEMENT the Agreed Form document set out at schedule 2.
MATERIALS packaging, display, advertising or promotional
Materials, labels or other material relating to or
connected with the Licensed Products.
MONTH each calendar month during the Term.
NET INVOICE PRICE the consideration in US dollars (or in the case
of overseas sales, converted into US dollars at the
rate of exchange as at the date of payment of
royalties under this agreement), receivable by
Affiliated on the Distribution of Licensed
Products using the Property in the Territory
(excluding value added tax/sales tax, duties,
freight, insurance and other taxes) taking into
account any volume discount, but without taking
into account any cash discount for early
settlement.
PHOTOGRAPH the photograph of the Car set out in appendix B
or such other photograph as Jordan may from
time to time make available to Affiliated.
PROPERTY the visual representation of Jordan's name
including any trademark of Jordan as set out in
appendix A and the Photograph.
QUARTER each consecutive period of three calendar months
during the Term with the first Quarter
commencing on 1 January, 2001.
RACE any race which counts towards the World
Championship, including scrutineering and all
official practice and test sessions, whether timed
or untimed, together with qualifying, warm up,
racing, pace car and victory or slowing down
laps.
RENEWAL TERM the period from 1 January 2001 to 31
December, 2003, or Termination Date if earlier.
<PAGE>
SEASON the season which commences calendar year with
the first Race and ends with the last Race of that
year or with the Termination Date if earlier.
SHOW CAR any replica of a car, without an engine, which is
supplied by Jordan to Affiliated for promotional
and display purposes at public or private or
public exhibitions.
SPECIFICATION the specification detailing the appearance of the
Car in each Season of the Term.
SPONSOR a sponsor, or licensee of Jordan from time to time
during the Term.
STATEMENT the statement in schedule 4 which sets out the
total sales of Licensed Products Distributed by
Affiliated during the preceding Month or Quarter,
the Net Invoice Price at which such items were
Distributed and the royalties due on such
Distribution in accordance with clauses 7.1.2 and
7.1.3.
TERM the period from the Commencement Date to 31
December, 2001 or Termination Date if earlier.
TERMINATION DATE the actual date when termination of this
agreement takes effect however terminated.
TERRITORY the world.
WORLD CHAMPIONSHIP the series of motor races for Formula One racing
cars currently organised and held under the aegis
of the FIA and known as the FIA Formula One
World Championship, including both the
competition for drivers and also that for
constructors.
YEAR each period of 12 calendar months commencing
on the Commencement Date or any anniversary
of the Commencement Date or such shorter
period where the Termination Date occurs prior to
the anniversary of the Commencement Date.
2. Words denoting the singular shall include the plural and vice versa;
words denoting any gender shall include all genders.
<PAGE>
3. The provisions of this schedule shall apply unless the meaning attributed
by this
schedule is inconsistent with the context of the relevant word or
expression.
4. Unless otherwise stated, a reference to a clause, party, appendix or a
schedule is a reference to respectively a clause in or a party or appendix
or schedule to this agreement.
5. Clause headings are for ease of reference only and shall not affect the
interpretation of this agreement.
<PAGE>
SCHEDULE 2
MANUFACTURING AGREEMENT
Affiliated Resource Corporation [Manufacturer's Name & Address
3050 Post Oak Boulevard, _______________________
Suite 1080 _______________________
Houston, Texas _______________________
USA 77056 _______________________]
We, ___________________ (MANUFACTURER), whose registered office is situate
at_________________________as supplier of Affiliated Resource Corporation
(AFFILIATED), acknowledge that we have been made fully aware of Affiliated's
obligations under agreement No. JGP 004 (AGREEMENT) between Jordan Grand Prix as
-----------
licensor (JORDAN), and Affiliated dated as 31 August, 2000 and expiring on 31
December, 2003 with regard to the licensing of products (LICENSED PRODUCTS)
bearing Jordan's trademarks and copyrights (PROPERTY). Affiliated has engaged us
to manufacture the following Licensed Products:
manufactured at the following address(es):
In order to enable Affiliated to comply with its obligations under the Agreement
and to protect Jordan's rights, we expressly renounce any and all intellectual
and industrial property rights in or in connection with the Licensed Products,
and we undertake as follows:
(1) to comply with applicable provisions of the Agreement;
(2) not to manufacture the Licensed products using the Licensed Property for
anyone
but the Licensee;
(3) not to sell the Licensed Products to any party other than Affiliated;
(4) not to exploit the Licensed Property for any purpose whatsoever other than
in
connection with the manufacture of the Licensed Products;
(5) not to manufacture Licensed Products after the expiration or earlier
termination of an
agreement with Affiliated, or if earlier 31 July, 2003;
(6) if required by Jordan to deliver to Jordan all the Licensed Products
remaining in
stock on the earlier of termination of our agreement with Affiliated, the
termination
of the Agreement or 90 days after 31 December, 2003;
<PAGE>
(7) not to manufacture the Licensed Products at any address other than the
addresses
referred to above;
(8) to permit such representative as Jordan may from time to time designate to
inspect
the activities of the manufacturer in relation to the manufacturer of the
Licensed
Products.
In the event of any intellectual or industrial property right of whatsoever
nature arising out of our manufacture or shipment of the Licensed Products, we
hereby undertake to assign such right, free-of-charge, to Jordan, it being
acknowledged by us that no such right shall inure to our benefit by reason of
our manufacture or shipment of the Licensed Products.
We acknowledge Affiliated's, and Jordan's right at any time to conduct an audit
of our accounts and other records, and to inspect our premises to satisfy Jordan
and Affiliated of the due observance of Affiliated's obligations to Jordan and
our full compliance with this Agreement.
We further undertake NOT TO:
a( incorporate or include our name or own trademarks in or on the Licensed
Products or its packaging;
b( use the Property on any business sign, business cards, stationary items,
forms, advertisement, promotional material, point of purchase, or other similar
material;
c( use the Property as the name of our business or any division thereof; or
d( imply that we have an association or official status with Jordan by
using advertisements, promotional material, point of sale, or any other similar
material.
We hereby acknowledge that Jordan is a third-party beneficiary of our agreement
with Affiliated. We agree to hold harmless, defend and indemnify Jordan from any
claims arising from the manufacture, shipment, sale or distribution of Licensed
Products, or claims arising between Manufacturer and Affiliated in connection
with the Licensed Products.
For and on behalf of For and on behalf of For and on behalf of
Jordan: [Manufacturer's name]: Affiliated:
By:_______________ By:_______________ By:_______________
Title:______________ Title:______________ Title:______________
Date: _____________ Date: _____________ Date: _____________
<PAGE>
SCHEDULE 3
DISTRIBUTION AGREEMENT
Affiliated Resource Corporation [Distributor's Name & Address
3050 Post Oak Boulevard, _______________________
Suite 1080 _______________________
Houston, Texas _______________________
USA 77056 _______________________]
We, ________(DISTRIBUTOR) whose registered office is situate at
______________________________, as distributor of Affiliated Resource
Corporation (AFFILIATED), acknowledge that we have been made fully aware of
Affiliated's obligations under agreement No. JGP 004 (AGREEMENT) between Jordan
-----------
Grand Prix as licensor (JORDAN), and Affiliated as licensee dated 31 August,
2000 and expiring on 31 December, 2003 with regard to the licensing of products
(LICENSED PRODUCTS) bearing the trademarks and copyrights of Jordan (LICENSED
PROPERTY) Licensee has engaged us to distribute the following Licensed Products:
in the following Territory(ies):
In order to enable Affiliated to comply with its obligations under the Agreement
and to protect Jordan's rights, we expressly renounce any and all intellectual
and industrial property rights in or in connection with the Licensed Products,
and we undertake as follows:
(1) to comply with applicable provisions of the Agreement;
(2) not to distribute the Licensed products using the Licensed Property for
anyone
but the Licensee;
(3) not to sell or distribute the Licensed Products to any person or entity
outside of the
territories specified above, or to solicit, sell or distribute the Licensed
Products to
any person or entity which we know or reasonably should know will re-sell
or
distribute the Licensed Products outside of the specified Territory(ies);
(4) cease to distribute the Licensed Products to any party if so requested by
Affiliated or
Jordan in writing;
(5) not to distribute Licensed Products after the earlier of termination of our
agreement with Affiliated, or 90 days after 31 December, 2003 (SELL-OFF
PERIOD);
<PAGE>
(6) if requested to do so by Jordan, deliver to Jordan all the Licensed Products
remaining in stock on the expiration of the period referred to in clause 5
above.
In the event of any intellectual or industrial property right of whatsoever
nature arising out of our distribution or shipment of the Licensed Products, we
hereby undertake to assign such right, free-of-charge, to Jordan, it being
acknowledged by us that no such right shall inure to our benefit by reason of
our distribution or shipment of the Licensed Products.
We acknowledge Affiliated's, and Jordan's right at any time to conduct an audit
of our accounts and other records, and to inspect our premises to satisfy Jordan
and Affiliated of the due observance of Affiliated's obligations to Jordan and
our full compliance with this Agreement.
We further undertake NOT TO:
e( incorporate or include our name or own trademarks in or on the Licensed
Products or its packaging;
f( use the Property on any business sign, business cards, stationary items,
forms, advertisement, promotional material, point of purchase, or other similar
material;
g( use the Property as the name of our business or any division thereof; or
h( imply that we have an association or official status with Jordan by
using advertisements, promotional material, point of sale, or any other similar
material.
We hereby acknowledge that Jordan is a third-party beneficiary of our agreement
with Affiliated. We agree to hold harmless, defend and indemnify Jordan from any
claims arising from the manufacture, shipment, sale or distribution of Licensed
Products, or claims arising between Distributor and Affiliated in connection
with the Licensed Products.
For and on behalf of For and on behalf of For and on behalf of
Jordan: [Distributor's name]: Affiliated:
By:_______________ By:_______________ By:_______________
Title:______________ Title:______________ Title:______________
Date: _____________ Date: _____________ Date: _____________
<PAGE>
SCHEDULE 4
STATEMENT
STATEMENT - LICENSED PRODUCT SALES
Please complete & submit to:
--------------------------------
Affiliated Resource Corporation Jordan Grand Prix Ltd.
3050 Post Oak Boulevard, Dadford Road
Suite 1080 Silverstone
Houston, Texas Northamptonshire, England NN12 8TJ
USA 77056 Attn: Frank Madden
Contract No: No. JGP 004 Period:__________________
-------------
Licensor: JORDAN GRAND PRIX LTD.
Territory:___________________________________________
(A) (B) (C) (D)
NET QUANTITY SOLD LINE
LICENSED INVOICE OF EACH DURING TOTALS
PRODUCTS: PRICE OF EACH: THE PERIOD: {(B) X C)}:
--------- ---------------- ------------ -------------
18. $ | $ .
- - - -
19. $ | $ .
- - - -
20. $ | $ .
- - - -
21. $ | $ .
- - - -
22. $ | $ .
- - - -
23. $ | $ .
- - - -
24. $ | $ .
- - - -
25. $ | $ .
- - - -
26. $ | $ .
- - - -
27. $ | $ .
- - - -
28. $ | $ .
- - - -
Total Sales During Period {Item (E)} $ _________
(1) Total WHOLESALE sales achieved during period
included in (E) above _____________
(2) Wholesale Royalties:
30% X Wholesale Sales in Line (1) _____________
15% (USA Wholesale Sales only in Line (1)) _____________
(3) Total RETAIL sales achieved during period
included in (E) above _____________
(4) Retail Royalties:
30% X Retail Sales in Line (3) _____________
(5) Total Royalties due for the period
[Line (2) plus Line (4)] _____________
If Line 5 is in a Currency other than US dollars, please complete Line 6 below
(6) Conversion Rate(s) _____________
(7) Amount of Royalty, in US dollars _____________
Submitted By: ______________________________________
Date: ______________________________________
