Data License Agreement
THIS DATA LICENSE AGREEMENT (“Agreement“) is entered into as of the _____ day of _________ 2022 (“Effective Date“) by and between CanBusHack Inc., a Michigan corporation (“CanBusHack“), and _______________ (“Licensee“). Licensee desires to license certain materials from CanBusHack; and CanBusHack desires to license such materials to Licensee. NOW, THEREFORE, CanBusHack and Licensee agree as follows:
- “Licensed Property” ___________________________________________
______________________________________________________________________________________________________________________________________________all as more fully set forth on Exhibit A.
1.2 “Licensed Services” means ____________________________________________.
1.3 “Parties” means CanBusHack and Licensee.
1.4 “Territory” means United States.
1.5 “Term” shall mean the twelve month period beginning on the date of the first payment under 2.3.
- Grant of License and Consideration.
2.1 Grant of License. CanBusHack hereby grants to Licensee, during the Term and subject to the terms and conditions of this Agreement, an exclusive license to use the Licensed Property in the Territory only to provide the Licensed Services.
2.2 No Transfer of License. Licensee will not make, use, sell, assign, transfer, or sublicense its rights to use the Licensed Property or any products which are confusingly or substantially similar to the Licensed Products, and will not assign, transfer, sell or sublicense any of its obligations under this Agreement, whether by operation of law or otherwise. Licensee shall only use the Licensed Products for the Licensed Services, and for no other purpose.
2.3 Fee for License As consideration for the grant of rights hereunder by CanBusHack to Licensee, Licensee shall pay to CanBusHack $____________ (“Licensee Fee”) as follows: (i) $____________ upon execution of this Agreement and; (ii) $___________ on the first day of each month thereafter for 12 consecutive months. Licensee shall also pay all applicable local, state and federal taxes. All amounts payable to Licensor, whether pursuant to this Agreement or another other agreement, shall be paid in United State funds and by wire transfer.
- Licensee’s Acknowledgments.
3.1 Rights and Ownership. Licensee acknowledges CanBusHack’s right, title and interest in and to the Licensed Property. Title to all Licensed Property and all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights shall remain exclusively with CanBusHack. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Licensed Property are transferred to Licensee by virtue of this Agreement. CanBusHack expressly reserves all rights other than those being explicitly conveyed or granted in this Agreement.
3.2 Validity. Licensee agrees it will not, either during the Term of this Agreement or thereafter, attack or challenge in any manner or in any forum CanBusHack’s ownership and interests in and to the Licensed Property, or the validity of this Agreement.
3.3 Goodwill; Derivations of the Licensed Property. Licensee acknowledges the goodwill associated with the Licensed Property, and agrees all goodwill, including, without limitation, any future increase in the value of the Licensed Property as a result of this Agreement, the Licensee’s use of the Licensed Products, or otherwise, will inure solely to CanBusHack’s benefit. Licensee will not claim any title or any proprietary right to the Licensed Property or in any derivation, adaptation, or variation thereof.
3.4 No Registration or Use. Unless CanBusHack expressly consents in writing, Licensee will not adopt, use, or attempt to register any corporate name, company name, trade name, domain name, or other identifier that incorporates, is comprised of, or is likely to be confused with, the Licensed Products, or any other trademark owned by or licensed to CanBusHack.
3.5 Evidence of Use. Upon CanBusHack’s request, Licensee will provide, at Licensee’s expense, evidence of how it is using the Licensed Property. CanBusHack shall have the right at any time to review and inspect by any means, Licensee’s use of the Licensed Property, and whether it is complying with the terms of this Agreement, and Licensee shall cooperate at its sole expense with such review and inspection.
3.7 Insurance. Licensee shall, throughout the Term, obtain and maintain, at its own expense, standard product liability insurance coverage, naming CanBusHack as additional insured and loss payee. Such policy shall: (a) be maintained with a carrier having a Moody’s rating of at least A; and (b) provide protection against any claims, demands and causes of action arising out of any use of the Licensed Products. The amount of coverage shall be a minimum of $500,00 per claim, and $1,000,000 aggregate with deductible not greater than $5,000 for each single occurrence. There shall be no change in the terms of the policy, or cancellation of such policy, unless CanBusHack has been provided with the 30-days advance written notice, from the insurer by Certified Mail Return Receipt. Licensee shall furnish CanBusHack a certificate from its liability insurance carrier evidencing insurance coverage in favor of CanBusHack, and in no event shall Licensee use the Licensed Products before the receipt by the CanBusHack of evidence of insurance. The provisions of this section shall survive termination for three years.
3.8 Protection of Licensed Property. Licensee shall devote its best efforts, but no less than the practices and procedures under which it protects its own most valuable proprietary information and materials, to protect the Licensed Property against any unauthorized or unlawful use, disclosure, dissemination or copying.
3.9 Nondisclosure. Licensee shall not, at any time, disclose or disseminate the Licensed Property to any employee, consultant, contractor, or other person who (i) does not have a need to know and obtain access thereto in order to give effect to the rights granted to Licensee under this Agreement or (ii) is not legally bound to maintain the proprietary and confidential nature of such materials and to limit use and copying thereof and access thereto as required by the terms of this Agreement. Licensee shall take appropriate action, by instruction, agreement, and otherwise, with any persons authorized to have access to Licensed Property, so as to enable Licensee to fulfill the foregoing obligations.
3.10 Power and Authority. Licensee warrants it has the power and authority to enter into this Agreement and has no knowledge as to any third party claims regarding the proprietary rights in the Licensed Property which would interfere with the rights granted under this Agreement.
3.11 Acceptance of Licensed Products. Licensee accepts the property “as-is where-is”. CanBusHack makes no representation or warranty with respect to the Licensed Property.
3.12 Authorization. The Licensee has the full legal right, power and authority to enter into this Agreement, to perform its respective obligations under this Agreement and to consummate the transactions contemplated herein. This Agreement has been duly executed and delivered by the Licensee and constitutes a legal, valid and binding obligation of the Licensee, enforceable against the Licensee in accordance with its terms.
3.13 No Violations. The execution and delivery of this Agreement by Licensee, the performance of its obligations hereunder and the consummation of the transactions contemplated hereby (a) do not and will not conflict with or violate any provision of organization documents of Licensee, documents governing the rights and obligations of shareholders or directors or officers, and (b) do not and will not conflict with or violate any applicable law, statute, ordinance, regulation, rule, judgment, order, writ, injunction or decree binding upon or applicable to the Licensee.
3.14 No Alterations of Materials. Licensee shall not make any changes, modifications or alterations to the Licensed Products, or create any products or services that compete with the Licensed Products.
- Update by CanBusHack.
4.1 Product Update. During the Term, CanBusHack may provide data updates as it acquires additional information. However, there shall be no obligation to provide any such updates, and such updates, if any, shall occur no more frequently than once each calendar quarter. CanBusHack makes no representation or warranty that it will be able to acquire any additional codes or that acquiring such codes may in the future become economically unfeasible. CanBusHack will in its own discretion determine whether and on what terms any updates will be made available to Licensee. In no event shall Licensee be entitle to any update if it is not current in payment of its License Fee. Further, if Licensee shall be come delinquent in payment of its License Fee and it desire to obtain any update, Licensee must pay all delinquent fees, plus fees for the next succeeding three months before receiving the update.
- Quality Control.
5.1 Licensee agrees to use the Licensed Property only: (a) in accordance with all applicable laws; and, (b) in accordance with sound commercial practice.
- Infringement and Enforcement
6.1 Notice of Infringement. Licensee will promptly notify CanBusHack if Licensee learns, or has reason to believe, of the existence, use, or promotion (or attempt of any of the foregoing) of property similar to any of the Licensed Property.
6.2 Action by CanBusHack to Protect Materials. CanBusHack may take, but is not required, to take any legal action, in its sole discretion, it deems necessary or advisable to protect the Licensed Property. Should CanBusHack choose to take any action with respect to the Licensed Property, Licensee will comply, at Licensee’s expense, with all reasonable requests for assistance in connection therewith, including, but not limited to, providing testimony, exhibits, facts or similar co-operation. Any recovery as a result of such action will belong solely to CanBusHack. Licensee’s obligations and agreements hereunder shall survive the termination or expiration of this Agreement.
6.3 Protective Action. Licensee will not initiate, undertake, or engage in any legal action for the protection or enforcement of any of the Licensed Property or any action relating to or involving any of the Licensed Property without the prior written consent of CanBusHack. If undertaken by the Licensee, any recovery (including, but not limited to, a judgment, settlement or licensing agreement included as resolution of an infringement dispute) shall be divided equally between the Parties after deduction and payment of reasonable attorneys’ fees to the party bringing the lawsuit.
- Term and Termination. The Term of this Agreement shall commence on payment of the first payment under Section 2.3 and shall terminate as provided herein. CanBusHack shall have the right to terminate this Agreement upon any breach, attempted or threatened breach of the terms of this Agreement by Licensee or any other action or failure to act by any person or entity that could lead to the loss of any rights by CanBusHack in the Licensed Property. CanBusHack may at its sole discretion, give the Licensee a remedy period to cure such breach, attempted or threatened. Granting of a cure period on an occasion shall not obligated CanBusHack to grant a cure period in any other instance. Licensee shall be deemed to have breached this Agreement upon any of the following:
(i) Licensee shall fail to pay when due any installment due hereunder; (ii) if Licensee shall file a voluntary petition in bankruptcy or insolvency, or shall be adjudicated a bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under the present or any future federal bankruptcy act or any other present or future applicable federal, state or other statute or law, or shall make an assignment for the benefit of creditors or shall seek or consent to or acquiesce in the appointment of any trustee, receiver, or liquidator of Licensee or of all or any part of the property of Licensee; (iii) if Licensee’s interest in this Agreement shall devolve upon or pass to any person, whether by operation of law or otherwise; or (iv) the death or disability of any shareholder, officer or director of Licensee; (v) the sale, assignment or transfer of any interest in the Licensee, or sale of substantially all of the assets of Licensee.
In the event of any breach, attempted or threatened breach by Licensee, CanBusHack shall be authorized (but not obligated) to expend such money it believes is necessary to cure such breach, attempted or threatened breach and protect its interest hereunder and in the Licensed Products, and Licensee shall be immediately liable for repayment to CanBusHack of such amounts with interest at the prime rate of interest +5%. If there is an uncured (if CanBusHack grants a cure period) breach, attempted or threatened breach, all of Licensee’s rights hereunder shall immediately terminate, CanBusHack shall be entitle to retain all amounts paid to date by Licensee, and CanBusHack shall have all remedies at law or in equity.
- Licensee’s Obligations Upon Termination. Upon expiration or termination of this Agreement for any reason, all rights granted to Licensee under this Agreement will cease and revert to CanBusHack. Except to the extent approved in writing by CanBusHack, in CanBusHack’s sole discretion, Licensee agrees to immediately cease and desist from any use of any of the Licensed Property. Licensee agrees it will not thereafter adopt, use, or refer to any trademarks, service marks, logos, designs, trade names, trade dress, domain name, toll-free number or other identification, derived from or is likely to be confused with, any of the Licensed Property.
- Indemnity. Licensee shall defend, indemnify and hold CanBusHack, and its officers, directors, employees and agents of each of the same harmless from and against all claims, damages and liabilities (including reasonable attorneys’ fees and costs) any of the same may incur or suffer (A) arising out of or relating to the use of the Licensed Property by Licensee; (B) the breach of any of Licensee’s obligations hereunder; (C) arising out of or related to the advertising, distribution or marketing of the Licensed Products; (D) the breach of any law or regulation.
- Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of Michigan. The venue of any dispute, controversy, litigation or proceeding (formal or informal) arising out of or pertaining to this Agreement or the subject hereof shall lie exclusively in the County of Oakland, State of Michigan. Provided, however, that if any such dispute, controversy, litigation or proceeding requires or permits jurisdiction in a federal court or agency of the United States, then venue shall lie in no federal court or agency other than those located in (or nearest to) the County of Wayne, State of Michigan. No term or provision of this Section is intended to establish a priority as between state court or federal court, for instances in which a choice of such venue is available to the parties or litigants. The parties hereto knowingly and expressly waive any rights they may have in existing venue statutes, either state or federal, to the extent that such statutes would require or permit a different venue than otherwise provided for herein.
- Dispute Resolution. Licensee expressly acknowledges nothing in this Agreement or any other agreement or agreements between the Parties will prevent CanBusHack from immediately seeking injunctive relief, or any other equitable or judicial remedy, in any forum CanBusHack, in its sole discretion, deems appropriate to protect its rights under this Agreement.
- Waiver and Modification. No waiver of any breach of this Agreement will constitute a waiver of any subsequent breach, and no waiver will be effective unless in writing and signed by the Party to be charged. This Agreement shall not be amended or modified except by a writing signed by both Parties. The failure of either Party at any time to require performance by the other of any provisions of this Agreement will in no way affect the full right of the Party to require the performance of any provisions at any later time. Any term of this Agreement may be waived only with the written consent of the party sought to be bound.
- Severability. If any non-material provision (as determined by CanBusHack in its sole discretion) of this Agreement, is held to be invalid, illegal, or unenforceable by a court or administrative body of competent jurisdiction, then unless otherwise agreed in writing by the Parties, this Agreement will continue in full force and effect except for such provisions, which will be deemed excised herefrom. In such event, the Parties hereby agree to use their best efforts to agree on substitute provisions, which, while valid, will achieve as closely as possible the same economic effects as the invalid provision(s). If a material provision (as determined by CanBusHack at its sole discretion) of this Agreement, is held to be invalid, illegal or unenforceable and cannot be modified to CanBusHack’s satisfaction, this Agreement may be terminated at CanBusHack’s option without any further liability of any party to the other.
- Headings. The headings of the sections and subsections of this Agreement have been inserted for convenience of reference only and do not restrict or otherwise modify any of the terms or provisions of this Agreement.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. A copy of a signature received through telefax transmission shall bind the party whose signature is so received as if such signature were an original and shall be deemed the equivalent of personal delivery of such executed instrument.
- Relationship of the Parties. Nothing contained herein will be construed to place the Parties in a relationship of joint venturers, partners, associates or principal and agent. Neither Party is granted the right under this Agreement to assume or create any obligation or responsibility for or on behalf of the other Party or otherwise bind the other Party other than as may be expressly authorized by the other Party in writing.
- Successor and Assigns. This Agreement will inure to the benefit of and be binding upon CanBusHack, Licensee and their respective permitted successors and assigns. Licensee shall not assign or transfer its rights or obligations pursuant to this Agreement without the prior written consent of CanBusHack. Any assignment or transfer in violation of this section shall be void and any such attempt shall be null and void and shall constitute a default by Licensee.
- Survival. All obligations of CanBusHack and Licensee which expressly or by their nature survive expiration or termination of this Agreement will continue in full force and effect subsequent to and notwithstanding such expiration or termination or until they are satisfied or by their nature expire.
- Notices. Any notice or other communication to be given hereunder will be in writing and will be sent to the address of the Party set forth below by: (i) hand delivery, with written acknowledgement of receipt; (ii) certified or registered first class air mail with return receipt, postage prepaid; (iii) commercially recognized overnight delivery service, acknowledgement of receipt requested; or (iv) telephone facsimile, acknowledgement of receipt requested (with a copy sent as provided below and by the same method of delivery) as follows (or to such other addresses or facsimile numbers as a Party may designate by notice to the other Party):
If to CanBusHack:
1450 E Highwood Ste. B
Pontiac, MI 48340
If to Licensee:
With copy to (which will not constitute notice)
Andrew J. Goldberg
With copy to (which will not constitute notice)
Any such notice or other communication will be deemed given on the date of delivery, or the date of transmission, as applicable.
- 20. Entire Agreement. This Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the Parties relating to the subject matter herein. This Agreement was prepared jointly with input from each of the Parties, and none of its provisions will be more strictly construed against either Party. Any reference to a Section or Schedule in this Agreement is a reference to a Section in, or Schedule to, this Agreement, except as otherwise expressly provided for herein. All Schedules are an integral part of this Agreement and are incorporated herein. Unless the context requires otherwise, terms defined in this Agreement in the singular form will include the plural form, and vice versa.
- Attorneys’ Fees and Expenses. The prevailing party shall have the right to collect from the other party its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
- Incorporation by Reference. All schedules, exhibits and other attachments which are affixed to and referred to in this Agreement are incorporated herein and made a part hereof by this reference.
- Construction. The parties have participated jointly in the negotiation and drafting of this Agreement with full benefit or availability of counsel. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any of the parties by virtue of the authorship of any of the provisions of this Agreement.
- Advice of Counsel. Each party acknowledges that it has had a full opportunity to consult with such legal and financial advisors as it has deemed necessary or advisable in connection with its decision to enter into this Agreement. In deciding to enter into this Agreement, neither party has relied on any representations, warranties, or statements made by the other party other than those expressly set forth herein.
- WAIVER OF JURY TRIAL. LICENSEE ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. LICENSEE, HAVING READ THIS PROVISION, AND AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR ITS BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT. LIKEWISE, CANBUSHACK ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. PAYEE, HAVING READ THIS PROVISION, AND AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR ITS BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS AGREEMENT.
This Agreement is executed and effective as of the date shown on the first page hereof.
CanBusHack Inc., a Michigan limited liability company
This Guaranty is made ________ ___, 2021, by ________________ (“Guarantor”) and CanBusHack, a Michigan corporation (“CanBusHack”).
R E C I T A L S
- CanBusHack has agreed to extend credit to ___________________, a ________________ company (the “Company”) pursuant to License Agreement of even date (the “License Agreement”). Also, CanBusHack may extend additional credit in the future to Company.
- Guarantor is the sole shareholder in the Company, and will directly benefit from CanBusHack extending credit to the Company under the License Agreement and otherwise.
- CanBusHack would not agree to extend credit to the Company, unless Guarantor agrees to be personally liable for such amounts, and costs incurred by CanBusHack related to making the credit loan and collecting amounts due from the Company.
- Guarantor has agreed to personally guarantee loans to the Company and certain costs and expenses, all as more particularly set forth hereunder.
To induce CanBusHack to make loans, advances or extend other financial accommodations to and otherwise do business with Borrower (in all cases, “loan” or “loans”) and for other good and valuable consideration, the receipt and sufficiency whereof are hereby acknowledged, Guarantor hereby covenants and agrees with CanBusHack as follows:
Guaranty. Guarantor hereby irrevocably and unconditionally guarantees to CanBusHack and his successors and assigns: (a) the full and prompt payment and performance when due of the Indebtedness (both defined below); and (b) the payment, compliance with and performance of all other obligations, covenants, representations and warranties of every kind, nature and description in accordance with all instruments and documents executed by the Borrower in favor of CanBusHack, whether now owing or existing or heretofore or hereafter created or arising, regardless of whether such obligations, covenants, representations or warranties are held to be unenforceable, void or of no effect against the Borrower and those under the License Agreement. Guarantor acknowledges and agrees that any indebtedness of the Borrower to CanBusHack may be extended or renewed upon maturity at the sole discretion of CanBusHack and that the Indebtedness as defined herein, the payment of which is hereby guaranteed, shall include, without limitation, all indebtedness and other obligations as extended or renewed and as may be evidenced by any renewal promissory note.
Guaranty Unconditional. This is an irrevocable, unconditional and absolute guaranty of payment, and not of collection, and the undersigned agrees that his liability on this Guaranty shall be immediate and CanBusHack may have immediate recourse against the undersigned for full and immediate payment of the Indebtedness at any time after the Indebtedness or any part thereof, has not been paid when due (whether by acceleration or otherwise) or the Borrower has defaulted or otherwise failed to perform when due any of his obligations, covenants, representations or warranties to CanBusHack.
Liability Not Contingent. The liability of Guarantor on this Guaranty is not contingent upon the exercise or enforcement by CanBusHack of whatever remedies he may have against the Borrower or others, or the enforcement of any lien or realization upon any security or collateral CanBusHack may at any time possess. Any one or more successive and/or concurrent actions may be brought hereon against Guarantor either in the same action, if any, brought against Borrower or in separate actions, as often as CanBusHack, in his sole discretion, may deem advisable. No election to proceed in one form of action or proceeding, or against any party, or on any obligation, shall constitute a waiver of CanBusHack’s right to proceed in any other form of action or proceeding or against other parties unless CanBusHack has expressly waived such right in writing. No action or proceeding by CanBusHack against Borrower under any document or instrument evidencing or securing the Indebtedness, shall serve to diminish the liability of Guarantor. Receipt by CanBusHack of payment or payments with knowledge of the breach of any provision with respect to any of the Indebtedness shall not, as to the Guarantor, be deemed a waiver of such breach. All rights, powers and remedies of CanBusHack under this or any other agreement with Guarantor shall be cumulative and not alternative and shall be in addition to all rights, powers and remedies given to CanBusHack by law.
Liability Absolute. Guarantor agrees that his liability hereunder is absolute and unconditional and that CanBusHack shall not be obligated (although he may do so at his sole option) before being entitled to direct recourse against Guarantor to take any steps, whatsoever to preserve, protect, accept, perfect CanBusHack’s interest in, foreclose upon or realize on collateral security, if any, for the payment of the Indebtedness or any other guaranty of the Indebtedness or in any other respect exercise any diligence whatever in collecting or attempting to collect the Indebtedness by any means.
No Impairment of Liability. The liability of the Guarantor shall in no way be affected or impaired by: (a) any amendment, alteration, extension, renewal, waiver, indulgence or other modification of the Indebtedness; (b) any settlement or compromise in connection with the Indebtedness; (c) any subordination of payments under the Indebtedness to any other debt or claim; (d) any substitution, exchange, release or other disposition of all or any part of any collateral for the Indebtedness; (e) any failure, delay, neglect, act or omission by CanBusHack to act in connection with the Indebtedness; (f) any advances for the purpose of performing any covenant of agreement of the Borrower, or curing any breach; (g) the filing by or against Borrower of bankruptcy, insolvency, reorganization or other debtor’s relief afforded Borrower pursuant to the present or future provisions of the Bankruptcy Code or any other state or federal statute or by the decision of any court; or (h) any other matter whether similar or dissimilar to the foregoing. The obligations of Guarantor are unconditional, notwithstanding any defect in the genuineness, validity, regularity or enforceability of the Indebtedness or any other circumstances whether or not referred to herein, which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.
Waivers. The Guarantor hereby waives each and every defense which, under principles of guaranty or suretyship law or otherwise, would otherwise operate to impair or diminish the liability of Guarantor hereunder, including, without limitation: (a) notice of acceptance of this Guaranty and of creations of Indebtedness of Borrower to CanBusHack; (b) any subrogation to the rights of CanBusHack against Borrower until the Indebtedness has been paid in full; (c) presentment and demand for payment of any Indebtedness of Borrower; (d) protest, notice of protest, and notice of dishonor or default to the Guarantor or to any other party with respect to any of the Indebtedness; (e) all other notices to which the Guarantor might otherwise be entitled; (f) any demand for payment under this Guaranty; (g) any defense arising by reason of any disability or other defense of Borrower by reason of the cessation from any cause whatsoever of the liability of the Borrower; (h) any rights to extension, composition or otherwise under the Bankruptcy Code or any amendments thereof, or under any state or other federal statute; and (i) any right or claim or claim of right to cause a marshalling of Borrower’s assets. No notice to or demand on the Guarantor shall be deemed to be a waiver of the obligation of the Guarantor or of the right of CanBusHack to take further action without notice or demand as provided herein; nor in any event shall any modification or waiver of the provisions of this Guaranty be effective unless in writing nor shall any such waiver be applicable except in the specific instance for which given.
Warranties and Representations. Guarantor represents, warrants and covenants to CanBusHack that, as of the date of this Guaranty: the fair salable value of Guarantor’s assets exceeds his liabilities, including the liability undertaken pursuant to this Guaranty; Guarantor is meeting his current liabilities as they mature; there are not now pending any court or administrative proceedings or undischarged judgments against Guarantor and no liens have been filed or threatened against Guarantor, nor is Guarantor in default or claimed default under any agreement.
Notices. Guarantor agrees to immediately give CanBusHack written notice of any adverse change in his financial condition, including but not limited to litigation commenced, liens filed, default claimed under his indebtedness for borrowed money or bankruptcy proceedings commenced by or against Guarantor.
No Reliance by Guarantor. Guarantor is fully aware of the financial condition of the Borrower. Guarantor delivers this Guaranty based solely upon his own independent investigation and in no part upon any representation or statement of CanBusHack with respect thereto. Guarantor is in a position to and hereby assumes full responsibility for obtaining any additional information concerning Borrower’s financial condition as he deem material to his obligations hereunder; and Guarantor is not relying upon nor expecting CanBusHack to furnish him any information in CanBusHack’s possession concerning Borrower’s financial condition.
Miscellaneous. This Guaranty shall inure to the benefit of CanBusHack and his successors and assigns, including each and every holder or owner of any of the indebtedness guaranteed hereby. In the event that there shall be more than one such holder or owner, this Guaranty shall be deemed a separate contract with each such holder and owner. In the event that any person other than CanBusHack shall become a holder or owner of any of the Indebtedness, each reference to CanBusHack hereunder shall be construed as if it referred to each such holder or owner. This Guaranty shall be binding upon Guarantor and his successors and assigns. Guarantor agrees that recourse may be had against his income, earnings, and all property, for all of Guarantor’s obligations under this Guaranty. This Guaranty and all rights and obligations hereunder, including matters of construction, validity and performance, shall be governed by the laws of the State of Michigan.
Definitions. “Indebtedness” shall mean all Debt plus Costs. “Debt” shall mean all principal, interest, attorneys’ fees, commitment fees, liabilities for costs and expenses and all other indebtedness, obligations, extensions of credit, and liabilities of any kind owing from Borrower to CanBusHack, including without limitation, under the License Agreement executed concurrently with this Guaranty, and whether such obligations are direct or indirect, absolute or contingent and whether now owing or existing or heretofore or hereafter created or arising, and regardless of whether such indebtedness, obligations or liabilities are held to be unenforceable, void or of no effect against the Borrower. “Costs” shall mean all costs, expenses and fees, including reasonable attorneys’ fees, arising in connection with the collection or enforcement of any or all Debt, regardless of whether the Borrower is held to be liable for such amounts.
Jury Waiver. GUARANTOR ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. GUARANTOR, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR ITS BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.
Guaranty Freely Given. THIS GUARANTY IS FREELY AND VOLUNTARILY GIVEN TO CANBUSHACK BY GUARANTOR, WITHOUT ANY DURESS OR COERCION, AND AFTER GUARANTOR, HAS EITHER CONSULTED WITH COUNSEL OR BEEN GIVEN AN OPPORTUNITY TO DO SO, AND GUARANTOR, HAS CAREFULLY AND COMPLETELY READ ALL OF THE TERMS AND PROVISIONS OF THIS GUARANTY.
IN WITNESS WHEREOF, this Guaranty was executed and delivered by the undersigned on the date stated in the first paragraph above.