PREC. XI. determine by notice before last instalment but one due. Vendor may rescind if default in payment of any instalment. Production &c. of patents. Transmission clause. of 12. Provided always that if the said C. D. shall make default for two calendar months in payment of any one of the said annual sums of £B £c or £D or any part thereof or for three calendar months in payment of the said sum of £E or any part thereof whether any such sum or part shall be demanded or not then the said A. B. may at any time after such default by notice in writing served on the said C. D. rescind this agreement without prejudice to the recovery of any moneys then already due to him in respect of the said sums of £в £c or £D (m) or any interest thereon as aforesaid respectively or to any right of action then already accrued to either party hereunder other than in respect of the said sum of £E. 13. An acknowledgment and undertaking by the said A. B. under sect. 9 of the Conveyancing and Law of Property Act 1881 (n) shall as to every patent for the time being comprised herein until an assignment shall be made thereof as aforesaid be implied herein. 14. [Transmission Clause, Form 25, ante, p. 56] (o). THE SCHEDUle. (k) The day fixed for the payment of the last instalment but one, namely, £D. This is, of course, a matter of arrangement. (7) There will be no apportionment of any annual sum on determination, as such sums are not in the nature of income. The Apportionment Act, 1870 (33 & 34 Vict. c. 35), sect. 1, only applies to periodical payments in the nature of income. (m) But not, of course, the sum of £E. Instead of rescinding, the vendor can sue for specific performance. (n) See post, p. 373, Appendix. (0) A licence is not assignable unless its terms so permit. (Post, p. 184.) The present agreement being one for ultimate purchase, on which part of the purchase-money is expressed to be paid at once, will probably, however, be held transmissible, without the insertion of a transmission clause. (p) The agreement should be under seal in respect of the licence, and for the purpose of being notified on the register. See post, p. 184, as to the sealing, and ante, p. 23, as to registration. For a clause as to service of notices, see Sp. Cl. 51, post, p. 242. XII. AN AGREEMENT for SALE ON THE HIRE SYSTEM of a Patent PREC. XII. (varying last Precedent)-EXCLUSIVE LICENCE until Assign ment- Premium- ROYALTIES half-yearly until total fixed invention. AN AGREEMENT made &c. BETWEEN A. B. of &c. of the one part and C. D. of &c. of the other part: WHEREAS the said Recitals. A. B. claims to be entitled to the patent mentioned together with Claim to the invention comprised therein in the first schedule hereto : AND Desire of WHEREAS the said C. D. is desirous of purchasing the said invention C. D. to and patent and all improvements or additions to the said invention acquire the or other discoveries useful for the manufacture of now (if at patent. all) in the knowledge and possession of or which may hereafter be made by the said A. B. and until completion of the purchase of obtaining a sole and exclusive licence in respect of the said invention patent and other premises aforesaid upon the terms hereinafter appearing. NOW IT IS HEREBY AGREED as follows:1. In consideration of the sum of £- this day paid by the Grant of said C. D. to the said A. B. (the receipt whereof is hereby acknow- exclusive ledged) and also in consideration of the covenants for payment of royalties and otherwise as hereinafter expressed the said C. D. shall be entitled from the date hereof &c. [as in Clause 1 of last Precedent.] or day of manu 2. The said C. D. shall for each half-year ending on the day of during the continuance of this agreement pay to the said A. B. for every factured by the said C. D. or his sub-licensees (if any) under the said licence the royalty mentioned in the second schedule hereto according to the size and description of the said licence until completion of purchase. Royalties payable halfyearly on manufacture. 3. The said C. D. shall keep at his usual place of business all Accounts proper books of account and shall make &c. [Form 13, ante, p. 51.] tion furnishkept, inspec ing of ac verification. [For Clauses 4 and 5 as to manufacture according to the specification, counts and and inspection of factory, use Licence II., post, p. 248; and for Clauses Clauses 6-10 as to non-assignment &c. without consent, not disputing the 4-10. (a) See observations on this kind of agreement, ante, pp. 37-39, and note (a) to last Precedent. PREC. XII. validity of the patent, detection &c. of infringements, payment of fees &c., and defence of patent &c. use Licence III., post, p. 251] (b). Improvements &c. to be comprised herein. Assignment on payment of royalties up to fixed minimum. Royalties suspended during proceedings, or to cease if patent declared void, but final 11. The said C. D. shall be entitled during the continuance of the said licence to the sole and exclusive right &c. [Clause 8 of last Precedent as to Improvements &c.] 12. If after taking the accounts for any half-year it shall be found that the total amount of royalties from the date hereof up to the end of such half-year received by or payable to the said A. B. equal or exceed the sum of £- the said C. D. shall then be entitled at his own expense subject to the satisfaction by him of all moneys then due hereunder to an assignment of the said invention and patent absolutely and such assignment shall contain covenants by the said A. B. &c. [As in Clause 9 of last Precedent] but until satisfaction of all moneys for the time being due hereunder the said C. D. shall before the execution of the said assignment continue to pay royalties as herein before provided (c). 13. If the said patent shall before the time when the said C. D. shall first become entitled to an assignment thereof as aforesaid become wholly or as to some material part of the said invention void no royalties not then payable by reason of any already manufactured by the said C. D. or his sub-licensees (if any) shall become payable either at all and in that case this agreement shall absolutely determine without prejudice &c. &c. and in the event of in satisfaction such an appeal the right of the said A. B. to the payment of the suspended or and continuing royalties shall revive. PROVIDED ALWAYS that the final cesser &c. [Use Clause 2 of Licence VII., post, p. 268]. cesser to be of damages. Licensor may rescind this certain events. 14. Provided always that if the said C. D. shall make default for one calendar month in payment of any royalties due hereagreement in under or shall commit a breach of any other of his obligations hereunder and (where such breach is capable of being made good) shall for the space of days after he shall have been served by the said A. B. with a notice in writing requiring him to make good the same omit so to do or shall become bankrupt or commit an act of bankruptcy whether available for adjudication or not or shall not in any half-year aforesaid manufacture by himself or his sub-licensees (if any) of the said articles at least according to the said invention or any improvement or addition thereto or new discovery as aforesaid then the said A. B. may at any time thereafter before the said C. D. shall become entitled to the assignment of the said invention and patent as aforesaid by notice in writing served on the said C. D. forthwith rescind this agreement but such rescission shall operate without prejudice to the (b) As to certain other covenants which also might be inserted, see note (e) to last Precedent. (c) The interim royalties might be considered as somewhat in the nature of interest on the purchase-money. The ad valorem stamp duty on the assignment should, it is presumed, be calculated on the aggregate of royalties as they should stand when the licensee first became entitled to the assignment. As to the necessity of the assignment, see note (j) to last Precedent. recovery by the said A. B. of any royalties or other moneys due at PREC. XII. the time thereof or to any right of action by either party then already accrued hereunder (d). transmission [For a Clause as to service of notices use Sp. Cl. 51, post, p. 242, Acknowledgand for Clauses as to acknowledgments &c. of the patents, and the ment &c. and Transmission Clause, see the last two Clauses of the last Precedent]. IN WITNESS, &c. (e). FIRST SCHEdule. SECOND SCHedule. (d) As the licensee need only stop using the invention, in order to avoid further liabilities, no power is given for him to determine the agreement. (e) See notes (o) and (p) of last Precedent as to the assignability of the licence, and its being under seal, and the registration of it. clauses. XIII. PREC. XIII. AGREEMENT forming a SYNDICATE to PURCHASE a Contract FOR SALE of a PATENT, and to sell the Contract or Patent to a Company or otherwise. AN AGREEMENT made &c. BETWEEN A. B. of &c. and C. D. of &c. of the one part, and the several persons whose signatures addresses and descriptions are given in the Schedule hereto (a) of the other part: WHEREAS [recite the grant title and ownership of the patent] AND WHEREAS by a contract in writing dated &c. and made between E. F. (hereinafter called the "vendor") of the one part, and the said A. B. of the other part the vendor hath agreed sell to A. B. with the said A. B. for the sale to him at the price of £ Recitals. Title of present owners. Contract to A. B. paid deposit. Agreement by parties hereto to unite in pur chasing contract. Syndicate formed. Capital and shares. of the said patent together with the benefit of improvements or additions thereto and any discovery relating to the manufacture of made or acquired by the vendor as therein mentioned: AND WHEREAS on the execution of the said contract the said A. B. paid the vendor the sum of £ part of the said price: AND WHEREAS the several persons parties hereto have agreed to unite in purchasing the benefit of the said contract and to form themselves into a syndicate for that purpose. NOW IT IS HEREBY AGREED AND DECLARED as follows: 1. A syndicate is hereby established between the several persons parties hereto (hereinafter called the "subscribers") for the purpose of acquiring the benefit of the said contract. shares of £ 2. The capital of the syndicate shall be the sum of £ which shall be considered as divided into each and shall be subscribed for by the respective subscribers in the (a) As a syndicate is a partnership or company (New Sombrero Phosphate Co. v. Erlanger, L. R. 5 Ch. D. 73), notice must be taken here of sect. 4 of the Companies Act, 1862 (25 & 26 Vict. c. 89). That section provides that no company, association, or partnership consisting of more than twenty persons can be formed for the purpose of carrying on any business (not being that of banking, as to which ten persons are the limit) that has for its object the acquisition of gain, unless it is registered as a company under that act, or formed by some other act of Parliament, or letters patent, or is engaged in working mines within and subject to the jurisdiction of the Stannaries. See Smith v. Anderson (L. R. 15 Ch. D. 247), as to a trust investment involving dealings with shares subscribed for by the public in answer to a prospectus, not being an illegal association under sect. 4 of the Companies Act. The distinction was there drawn between the case of trustees and that of directors. |