INTELLECTUAL PROPERTY LICENSE AGREEMENT
THIS AGREEMENT DATED the 1st day of April, 1998.
BETWEEN:
POSITION INC., a body corporate incorporated pursuant to the laws of Alberta
with an office in the City of Calgary
(hereinafter referred to as the "Licensor")
- and -
JFM GEOMATICS LTD. and MICA GEOMATICS LTD., both being bodies corporate
incorporated pursuant to the laws of the Province of Alberta
(hereinafter referred to collectively as the "Licensee")
WHEREAS the Licensor owns and holds the copyrights and any
applications thereof to the computer programs and other intellectual property
described in Schedule "A" hereto (hereinafter called the "Licensed Material")
and the Licensee desires to obtain from the Licensor and the Licensor desires
to grant to the Licensee a license to use the Licensed Material;
NOW THEREFORE THIS AGREEMENT WITNESSETH that in consideration of the
mutual covenants contained herein and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto agree as follows:
1. License
The Licensor hereby grants to the Licensee:
(a) a single exclusive world wide license to use the NavSEIS
software;
(b) a single exclusive world wide license to use the Jupiter software
within the continuation of the NavSEIS business as presently carried on by the
Licensor, being the sale and support of the NS100 and NS200 products
(brochures of the Jupiter software and NS100 and NS200 products are attached
as Schedules "C", "D" and "E" respectively); and
(c) a single non-exclusive world wide license to use the Jupiter
software in all other businesses.
(the exclusive NavSEIS software license, the exclusive Jupiter software
license and the non-exclusive Jupiter software license are hereinafter
referred to as the "License").
2. Purpose
The rights granted by this License apply solely to the use by the
Licensee of the Licensed Material for the purposes of:
(a) supporting the continuance of the NavSEIS business as presently
carried on by the Licensor, being the sale and support of the NS100 and NS200
products;
(b) supporting the Jupiter software package; and
(c) enabling the Licensee to produce survey and navigation products
within the seismic exploration industry.
3. Consideration
In consideration for the rights granted in this Agreement, the
Licensee agrees to pay the Licensor a royalty fee annually on the first
through fifth anniversaries of the date hereof, equal to six (6%) percent of
the net book value of the NavSEIS and Jupiter Software Deferred Development
Costs of the Licensor depreciated on a twenty-five (25%) percent declining
balance basis. The annual royalty fees are as follows:
March 31, 1999 $33,181.00
March 31, 2000 $24,886.00
March 31, 2001 $18,664.00
March 31, 2002 $13,998.00
March 31, 2003 $10,498.00
Interest on overdue payments shall accrue at the rate of one and one
quarter (1.25%) percent per month, compounded annually.
4. Term
The term of this Agreement shall commence on the date hereof, and
shall be for a period of five (5) years unless terminated in the manner as
hereinafter set forth. In the event of the termination of this Agreement in
accordance with the provisions hereinafter set forth, the Licensee shall
return to the Licensor the Licensed Materials and all documentation or any
other materials related thereto, and shall cease to use them.
5. Termination
The rights conferred by this Agreement are subject to the ongoing
compliance by the Licensee with the provisions of this Agreement. In the
event that any of the provisions are not met by the Licensee other than the
obligation to make an annual royalty fee payment and pay any interest accrued
thereon, then the Licensor may give notice to the Licensee of the apparent
breach. A breach of any of the terms of this Agreement will be understood to
be a material breach. If such apparent breach is not remedied within thirty
(30) days of said notice the Licensor at its option may terminate or withdraw
some or all rights conferred hereunder and shall require the immediate
delivery up by the Licensee of any copies of the Licensed Material used in
contravention of this Agreement. The Licensor shall have the right to cancel
the entire Agreement.
6. Remedies
The Licensor's remedies in the event of a default or breach of any
terms hereof by the Licensee shall not be limited to the termination described
above and in no way shall the Licensor's right to pursue all other remedies
available, including, but not limited to, equitable relief by way of
injunction or orders for accounting, damages for conversion, punitive and
exemplary damages nor shall such actions terminate any of the Licensee's
obligations to the Licensor. The Licensee shall return all Licensed Material
on termination of this Agreement.
7. Title
The Licensee agrees that the Licensed Material is, and shall remain
at all times, the property of the Licensor. The Licensee shall have no right,
title or interest therein or thereto except as expressly set forth in this
Agreement. Alterations, improvements or modifications to the Licensed
Material of any sort shall remain the property of the party making such
alteration, improvement or modification.
8. License Authority
The Licensor warrants that it possesses the legal right to grant the
Licensee the License as set forth herein.
9. Warranty
There are no other warranties express or implied except as otherwise
expressed herein.
10. Support
The Licensor shall not be obligated to provide the Licensee with
support for, or assistance with the use of the Licensed Material under this
Agreement.
11. Infringement Notice
The Licensee shall give prompt written notice to the Licensor of any
apparent infringement of the Licensor's copyright in the Licensed Materials,
which may come to the Licensee's notice during the term. The Licensee,
however, shall have no right to initiate proceedings for infringement of such
copyright, but shall provide all reasonable support to the Licensee upon
request if required.
12. Confidentiality
The Licensee shall exercise reasonable commercial care and in any
event, at least the same degree of care and discretion with respect to the
Licensed Material as it exercises in protecting its own confidential
information. The Licensee shall not disclose, or otherwise make available,
without the prior written consent of the Licensor, the Licensed Material or
any copies of it to third parties. The Licensee shall not copy or reproduce
the Licensed Material except to the extent necessary to perform its
obligations under this Agreement. This paragraph shall survive the
termination of this Agreement.
13. Limitation of Liability
In no event shall the Licensor be liable for any damages, loss of
data or profits, or for any incidental or consequential damages, resulting
from the use of the Licensed Material even if advised of the possibility of
such damages. The Licensee's right to recover damages caused by the
Licensor's fault or negligence shall be limited to the consideration actually
paid by the Licensee for the Licensed Material. This limitation of the
Licensor's liability shall apply regardless of the form of action whether in
contract or tort.
14. Accountability
The Licensee shall maintain a record of the location of Licensed
Material and any copies or portions thereof and such record shall be available
for inspection by representatives of the Licensor upon request.
15. Notice
Any notice required to be given to either party shall be in writing
and shall be sufficiently given if delivered, or if sent by prepaid registered
mail or if sent by facsimile to the respective addresses given below, or to
such other address as shall be designated by written notice to the other
party.
Licensor: Position Inc.
0000X - 00xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Facsimile: 0-000-000-0000
Attention: President
Licensee: x/x Xxxxxxxxxx Xxxxxxxx Xxxxxx
0000, 000-0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx
X0X 0X0
Facsimile: 000-000-0000
Attention: G. Xxxxxxx Xxxxxx
16. Alberta Law
This Agreement shall be governed by and construed in accordance with
the laws of the Province of Alberta and the applicable laws of Canada. The
parties agree to attorn to the courts of the Province of Alberta.
17. Entire Agreement
This Agreement contains the entire agreement between the parties and
supersedes all prior written or oral agreements with respect to the subject
matter hereof.
18. Modifications
Any modifications to this Agreement must be in writing and signed by
both parties.
19. Assignment
This Agreement shall be assigned by the Licensee to a third party
within ninety (90) days of the date hereof, upon the prior written consent of
the Licensor, such consent not to be unreasonably withheld. Notwithstanding
paragraphs 5 and 6 hereof, failure to complete an assignment within the ninety
(90) day period will result in the immediate termination of this Agreement and
the obligation of the Licensee to forthwith return all Licensed Material to
the Licensor. This Agreement shall survive any assignment by the Licensor or
the Licensee or their successors.
20. Purchase of Licensed Material
Provided the Licensee is not in default of any term hereunder, the
Licensee shall, at any time during the term hereof be entitled to purchase the
Licensed Material for the following amounts:
Date Purchase Price
Prior to March 31, 1999 $553,027.00
Between April 1, 1999 and
March 31, 2000 $414,770.00
Between April 1, 2000 and
March 31, 2001 $311,077.00
Between April 1, 2001 and
March 31, 2002 $233,308.00
Between April 1, 2002 and
March 30, 2003 $174,981.00
Provided the Licensed Material has not previously been purchased
pursuant to this paragraph 20, and provided this Agreement has not previously
terminated pursuant to paragraph 5, the Licensee shall, on March 31, 2003,
purchase the Licensed Material for One Hundred and Seventy-Four Thousand Nine
Hundred and Eighty-One ($174,981.00) Dollars.
21. Security
As security for the royalty fees and any accrued interest thereon
payable pursuant to paragraph 3 above and payment for the purchase of the
Licensed Material pursuant to paragraph 20 above, the Licensee agrees to place
into escrow, on or before April 14, 1998, pursuant to the Escrow Agreement
attached hereto as Schedule "B", one hundred thousand (100,000) shares in the
capital stock of the Licensor.
22. Non-Competition
The Licensee hereby agrees that it will not, without the prior
written approval of the Licensor, during the term of this Agreement, however
caused, either as a corporation, individual, or as a partner or partners or
joint venturer or joint venturers or as employees, agents, shareholders,
investors, officers, directors or otherwise in conjunction with any other
firm, association, syndicate, company or corporation, or in any other manner
whatsoever directly or indirectly carry on, be engaged in, be interested in or
be otherwise concerned with, or permit their names or any parts thereof or
their employees to be used or employed by any such person or persons, firm,
association, syndicate, company or corporation, carrying on, engaged in,
interested in or concerned with the business which involves the use of the
Licensed Material other than for the purposes set out in paragraph 2 hereof,
without regard for geographical area.
23. Severability
The provisions of this Agreement are severable, and in the event
that any provision of this Agreement shall be determined to be invalid or
unenforceable under any controlling body of law, such invalidity or
unenforceability shall not, in any way, affect the validity or enforceability
of the remaining provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date set forth above.
POSITION INC.
Per:
JFM GEOMATICS LTD.
Per:
MICA GEOMATICS LTD.
Per:
