TECHNOLOGY LICENSE AGREEMENT made as of December 1, 2006.
BETWEEN: C-CHIP TECHNOLOGIES CORPORATION (NORTH AMERICA) INC., a
corporation incorporated under the laws of Canada, having
its head office at 400 Montpellier Boulevard, Ville
St-Laurent, Quebec, H4N 2G7, herein acting and represented
by its duly authorized representative as he so declares;
(hereinafter referred to as "C-Chip")
AND: IMETRIK SOLUTIONS INC., a corporation incorporated under the
laws of Canada, having its head office at 740 , Notre-Dame
East, Suite 1320, Montreal, Quebec, H3C 3X6, herein acting
and represented by its duly authorized representative as he
so declares;
(hereinafter referred to as "Licensee")
WHEREAS C-Chip is in the business of marketing and selling technological devices
and products developed by it using the AMPS, REFLEX or Pager based (analogue)
standard of communication under the trade-marks "Shadow 100", "Credit Chip 1"
and "Credit Chip 100" (the "C-Chip Products") allowing credit providers to
locate and track down a vehicle equipped with such a device in case of payment
default (the "C-Chip Business").
WHEREAS C-Chip has developed a certain expertise and know-how related to the
manufacture, marketing and sale of the C-Chip Products within the Market (as
defined below) and the sale of GSM (digital) based products within the Market
(as defined below).
WHEREAS Licensee is in the business of developing and marketing of wireless
solutions, using technological devices and GSM (digital) based product (which
includes the DACP08), including offering credit providers the ability to
remotely locate vehicles with immobilization capabilities, by using a worldwide
GSM/SMS network for wireless communications and internet web applications
("Licensee's Technology").
WHEREAS Manaris Corporation (formerly known as C-Chip Technologies Corporation)
("Manaris") and Licensee entered into a master agreement on technological and
business development on May 27, 2005 (the "2005 Agreement") providing inter alia
for (i) the provision of certain services by Licensee to Manaris in connection
with the C-Chip Business, including the improvement of the manufacturing
processes relating to the C-Chip Products and the development of improvements to
such products to allow for the manufacturing thereof on a larger scale and (ii)
the provision of certain credit facilities to Manaris in the event that it was
unable to pay the service fees due to Licensee under the 2005 Agreement (the
"Loan").
WHEREAS C-Chip, a wholly-owned subsidiary of Manaris, was formed in order to
carry on the C-Chip Business.
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WHEREAS there is currently outstanding an amount of US$1,143,321.03 pursuant to
the terms of the Loan (the "Outstanding Loan Amount").
WHEREAS Licensee wishes to be in a position to fully service and respond to the
needs of the clients operating within the Market (as defined below), regardless
of the technology used by each individual client, whether based on the
Technology (as defined below) or Licensee's Technology.
WHEREAS C-Chip is the owner of or has the right to license and sublicense
certain intellectual property in relation to the C-Chip Products.
WHEREAS C-Chip wishes to grant, and Licensee desires to acquire, an exclusive
license under C-Chip's Intellectual Property (as defined below), subject to the
terms and conditions set forth hereinafter.
NOW THEREFORE, in consideration of the mutual promises set forth hereinafter,
the parties agree as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement, unless something in the subject matter or
context is inconsistent therewith:
1.1.1 "2005 Agreement" has the meaning set forth in the
preamble.
1.1.2 "Affiliate" has the meaning attributed thereto in the
Canada Business Corporations Act.
1.1.3 "Agreement" means this agreement entitled "Technology
License Agreement", all schedules hereto and all
instruments supplemental hereto or in amendment or in
confirmation hereof.
1.1.4 "C-Chip Business" has the meaning set forth in the
preamble.
1.1.5 "C-Chip Products" has the meaning set forth in the
preamble.
1.1.6 "C-Chip's Intellectual Property" means the
Trade-Marks, the Processes, the Technology, the
Know-how and any other Intellectual Property owned by
or licensed to C-Chip in relation to the C-Chip
Products, as of the date of this Agreement.
1.1.7 "Confidential Information" has the meaning set forth
in Section 8.1.
1.1.8 "Dealer" means retail or wholesale vendors of
vehicles in the Market.
1.1.9 "Date of Disposition" has the meaning set forth in
Section 3.3.
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1.1.10 "Hardware" means telecommunications and related
devices that form part of the C-Chip Products and
that are used to communicate with, locate and/or
disable a vehicle in which a C-Chip Product is
installed.
1.1.11 "Intellectual Property" means all worldwide
intellectual and industrial rights and includes
rights to (i) inventions and patents for inventions,
including all divisional, continuing, substitute,
renewal, re-issue and all other applications and/or
letters patent therefor, (ii) copyrights, (iii)
designs and industrial designs, (iv) trade-marks, and
any word, symbol, icon, logo or other indicia of
origin adopted or used in connection with any product
or service, (v) know-how, trade secrets and
confidential information, and (vi) other proprietary
rights, whether registered or not.
1.1.12 "Know-how" means that certain knowledge and
information that C-Chip has developed through the
C-Chip Business regarding the manufacture, marketing
and Sale of the C-Chip Products in the Market.
1.1.13 "Loan" has the meaning set forth in the preamble.
1.1.14 "Market" means the sub-prime used vehicle market
otherwise commonly referred to as the "buy here pay
here" (BHPH) market.
1.1.15 "Market Products" means the C-Chip Products and any
and all products that use the Licensee's Technology
that include the "locate and disable" functions,
which products in each case are sold by the Licensee
in the Market;
1.1.16 "Minimum Monthly Sales Quota" means the obligation of
Licensee to Sell a minimum amount of 1,500 units of
the Market Products in any given month during the
term of this Agreement.
1.1.17 "November Period" has the meaning set forth in
Section 3.1.1.
1.1.18 "Outstanding Loan Amount" has the meaning set forth
in the preamble.
1.1.19 "Processes" means any processes developed by C-Chip
related to and/or used to develop and/or manufacture
the C-Chip Products and/or Sell the C-Chip Products
in the Market.
1.1.20 "Project Manager" has the meaning set forth in
Section 11.1.
1.1.21 "Repayment Date" has the meaning set forth in Section
3.4.
1.1.22 "Reseller Agreements" means such agreements entered
into between C-Chip and a reseller for the Sale of
the C-Chip Products, which agreements are listed in
Schedule 1.1.22.
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1.1.23 "Royalty" has the meaning set forth in Section 3.1.
1.1.24 "Sale", "Sell" (and other derivatives) means to
market, promote, distribute, sell, rent, lease,
license, sublicense or engage in any other form of
distribution of the C-Chip Products or other Market
Products, as the case may be, to an end user,
distributor, Dealer, reseller (including through the
Reseller Agreements) or any other person or entity,
either directly or indirectly through a chain of
distribution (including a financial institution) or
otherwise.
1.1.25 "Software" means any software code, including
sub-routines, developed by C-Chip and embedded in the
C-Chip Products, as well as any software code
developed by C-Chip relating to the internet web
applications used in connection with the C-Chip
Products.
1.1.26 "Technology" means vehicle-tracking technology that
consists of both Hardware and Software developed by
C-Chip using AMPS, REFLEX or Pager based network
systems technology, that interfaces with internet web
applications used in order to communicate with,
locate and/or disable remote vehicles.
1.1.27 "Territory" means worldwide.
1.1.28 "Trade-Marks" means the trade-mark(s) used in
connection with the C-Chip Products owned by or
licensed to C-Chip listed in Schedule 1.1.28, as
amended from time to time.
1.2 Headings
The division of this Agreement into Articles and Sections and
the insertion of headings are for convenience of reference
only and shall not affect the construction or interpretation
of this Agreement. The terms "this Agreement", "hereof",
"hereunder" and similar expressions refer to this Agreement
and not to any particular Article, Section or other portion
hereof and include any amendment hereto. Unless something in
the subject matter or context is inconsistent therewith,
references herein to Articles or Sections are to Articles or
Sections of this Agreement.
1.3 Extended Meanings
In this Agreement, words importing the singular number only
shall include the plural and vice versa, words importing the
masculine gender shall include the feminine and neuter genders
and vice versa and words importing persons shall include
individuals, partnerships, limited liability companies,
associations, trusts, unincorporated organizations and
corporations.
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1.4 Statutory References
In this Agreement, unless something in the subject matter or
context is inconsistent therewith or unless otherwise herein
provided, a reference to any statute is to that statute as now
enacted or as the same may from time to time be amended,
re-enacted or replaced and includes any regulations made
thereunder.
1.5 Accounting Principles
Wherever in this Agreement reference is made to a calculation
to be made in accordance with generally accepted accounting
principles ("GAAP"), such reference shall be deemed to be to
the generally accepted accounting principles in Canada from
time to time approved by the Canadian Institute of Chartered
Accountants, or any successor institute, applicable as at the
date on which such calculation is made or required to be made
in accordance with generally accepted accounting principles
and applied in a manner consistent with prior periods of the
Seller.
1.6 Currency
All references to currency herein are to lawful money of
United States of America.
1.7 Schedules
The following are the Schedules to this Agreement:
Schedule 1.1.22 - Reseller Agreements; and
Schedule 1.1.28 - Trade-Marks.
2. GRANTS AND COVENANTS
2.1 License Grant
2.1.1 Subject to the terms, conditions and restrictions of
this Agreement, C-Chip hereby grants to Licensee an
exclusive license under C-Chip's Intellectual
Property to manufacture and Sell the C-Chip Products
in the Market within the Territory.
2.1.2 Notwithstanding anything to the contrary in this
Agreement, the license granted herein to Licensee
includes the right:
2.1.2.1 to modify, copy or enhance the Technology
and Processes for use within the scope of
the license set forth in Section 2.1.1;
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2.1.2.2 to grant sublicenses under Section 2.1.1
(subject to terms and conditions
substantially similar to those set forth in
this Section 2 and subject to the Royalty
payment obligations set forth in Section 3)
to Affiliates of Licensee to manufacture and
Sell the C-Chip Products in the Market
within the Territory;
2.1.2.3 to have C-Chip Products manufactured or
assembled by third parties and/or developed
by or with third parties solely for the
benefit of Licensee for the manufacture, use
or Sale by Licensee or its Affiliates; and
2.1.2.4 to Sell the C-Chip Products together with or
simultaneously with the sale of the other
Market Products (including Licensee's
Technology based products) in order to fully
service and meet the requirements of clients
operating within the Market.
2.1.3 For greater certainty, nothing herein shall prevent
C-Chip from using, copying, enhancing or modifying
C-Chip's Intellectual Property:
2.1.3.1 for its internal use; or
2.1.3.2 in the context of research and development
activities unrelated to the Market on its
own behalf or on behalf of a third party.
2.2 Trade-Marks License
2.2.1 Subject to the terms, conditions and restrictions of
this Agreement, and in conjunction with the license
granted pursuant to the terms of Section 2.1, C-Chip
hereby grants to Licensee an exclusive license,
within the Territory, to use the Trade-Marks only in
association with the C-Chip Products.
2.2.2 Licensee shall comply with C-Chip's standard
trade-mark guidelines as to the form and manner in
which the Trade-Marks may be used pursuant hereto. In
particular, Licensee shall not change, amend or
otherwise modify the Trade-Marks. Moreover, Licensee
shall identify the Trade-Marks, when used as
trade-marks, with a notation that the mark is a
registered/unregistered trade-mark of C-Chip and/or
its licensors, as the case may be. Upon request,
Licensee shall submit for approval by C-Chip, acting
reasonably, samples of any packaging, documentation,
advertising, brochures and other material on which
the Trade-Marks appear or which is intended to be
used in relation to C-Chip Products being
manufactured, used or Sold by Licensee.
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2.2.3 Licensee acknowledges that C-Chip and/or its
licensors are the exclusive owners of the Trade-Marks
and all goodwill associated therewith, that all use
of the Trade-Marks by it enures to the benefit of
C-Chip and/or its licensors, and that it shall not
dispute or contest the validity, ownership or
enforceability of the Trade-Marks nor attempt to
dilute the value of the goodwill attached thereto.
2.2.4 To the extent required to protect C-Chip's and/or its
licensors' rights in the Trade-Marks, during the term
of the Agreement, Licensee shall give C-Chip's
representatives reasonable access to Licensee's
facilities, at C-Chip's expense, at reasonable times
during business hours, subject to C-Chip giving
Licensee at least five (5) Business Days prior
notice, for the purpose of quality control in
relation to C-Chip Products branded with the
Trade-Marks, as the case may be.
2.2.5 Licensee may Sell the C-Chip Products on a "white
label" basis, without use of the Trade-Marks, it
being understood that any decision by Licensee to
cease using the Trade-Marks in connection with the
C-Chip Products shall not in any way affect or
release it from its Royalty payment obligations under
Section 3 hereof.
2.3 Exclusivity
In order to assure Licensee of the exclusive rights under
C-Chip's Intellectual Property to manufacture and Sell the
C-Chip Products in accordance with the terms of this
Agreement, and except as provided otherwise in this Agreement,
C-Chip shall not:
2.3.1 itself use C-Chip's Intellectual Property to develop,
produce, market, distribute or Sell the C-Chip
Products or similar products in the Market; or
2.3.2 grant to a third party any rights or licenses to use,
copy, enhance or modify any of C-Chip's Intellectual
Property to develop, produce, market, distribute or
Sell the C-Chip Products in the Market.
2.4 No Contestation
2.4.1 Licensee hereby acknowledges that C-Chip and/or its
licensors remain owners of C-Chip's Intellectual
Property and the goodwill attached to it and
undertakes not to contest C-Chip's Intellectual
Property nor the rights of C-Chip or its licensors
therein at any time during or after expiration or
termination of this Agreement.
2.4.2 Licensee agrees not to use C-Chip's Intellectual
Property except in accordance with this Agreement.
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3. COMPENSATION
3.1 Royalty
In consideration of the licenses granted to Licensee by C-Chip
pursuant to Sections 2.1 and 2.2 and the resulting ability of
Licensee to fully service and meet the needs of clients
operating within the Market, Licensee shall pay to C-Chip a
royalty (the "Royalty"), which shall be payable as follows:
3.1.1 an amount of $20.00 per Market Product Sold by
Licensee for the period of November 1, 2006 to
November 30, 2006 (the "November Period") in the
amount of $22,860.00 which amount will be set off
against the amount otherwise due under the Loan for
the November Period in the amount of $33,645.12, it
being understood that the difference between such
amounts in the amount of $10,785.12 will be paid by
C-Chip to Licensee on or before January 15, 2007;
3.1.2 a lump sum reduction of the principal and interest
owing on the Outstanding Loan Amount as of the date
hereof in the amount of $200,000;
3.1.3 subject to the provisions of Section 3.2, an amount
of $20.00 per Market Product Sold by Licensee as of
the date hereof, which shall be payable by means of a
periodic reduction of the principal and interest
owing on the Outstanding Loan Amount, to be applied
against the Outstanding Loan Amount on the first day
of the month following the end of the month in which
the Sale occurred.
3.2 Failure to meet Minimum Monthly Sales Quota
In the event that Licensee fails to Sell a sufficient number
of Market Products in any given month during the term of this
Agreement in order to meet the Minimum Monthly Sales Quota for
such month, the parties hereby agree that the Royalty payable
pursuant to the terms of Section 3.1.3 for such month shall be
the aggregate amount of $30,000 regardless of the number of
units of Market Products Sold.
3.3 Payment Obligation
The Royalty specified in Sections 3.1.3 and 3.4 as the case
may be becomes payable by Licensee with respect to any Sale of
Market Products by Licensee, irrespective of the manner in
which such Sale occurs and any costs associated therewith or
any discounts, deferred payment terms or other special
arrangements existing between Licensee and any customer with
respect to the Sale of such Market Products. For greater
certainty, the Royalty becomes payable as of the moment when
the Market Products are shipped (the "Date of Disposition").
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3.4 Option
As of the date upon which the entire Outstanding Loan Amount
has been reimbursed to Licensee by way of reductions of such
amount in payment of the Royalty hereunder (the "Repayment
Date"), (i) the parties agree that the Loan shall be
extinguished and that C-Chip shall be released from any
further obligations under the Loan and Licensee shall sign and
deliver any documentation required or reasonably requested by
C-Chip to give effect thereto, (ii) the Royalty payable
pursuant to Section 3.1.3 shall thereafter be in an amount of
$20.00 per C-Chip Product Sold by Licensee as of the Repayment
Date, payable to C-Chip by means of wire transfer to a bank
account designated by C-Chip within ten (10) days of the end
of the month in which the Sale occurred, (iii) the Minimum
Monthly Sales Quota will no longer be applicable, and (iv)
Licensee shall have an option to purchase C-Chip's
Intellectual Property on terms and conditions to be mutually
agreed upon between C-Chip, its licensors and Licensee, to be
exercised within ninety (90) days of the Repayment Date.
3.5 Tax
3.5.1 All amounts and payments under this Agreement are
exclusive of any tax, duty, levy, or similar
government charge that may be assessed by any
jurisdiction, whether based on gross revenue, the
license, Sale or other exploitation of C-Chip's
Intellectual Property or the Market Products, the
execution of this Agreement or otherwise, except for
those based on either party's net income.
3.5.2 In the event any invoices are issued under this
Agreement, such invoices will include any applicable
tax that may be assessable on the charges set forth
therein.
3.6 Records
3.6.1 All the reductions to the Outstanding Loan Amount
resulting from the payment of the Royalty pursuant to
Section 3.1 shall be effective and recorded by
Licensee in its books and records as of the Date of
Disposition of a Market Product. Licensee shall
provide C-Chip with detailed statements recording (i)
the volume of Sales of Market Products for the month
in question, (ii) the calculation of the
corresponding Royalty payable pursuant to the terms
of Section 3.1 and (iii) confirmation as to the
balance of the Outstanding Loan Amount following
payment of the Royalty for the previous month, within
ten (10) days of the end of each month.
3.6.2 Licensee shall maintain all books and records in
accordance with GAAP evidencing all Sales of the
Market Products, the revenues received in respect
thereof and Royalty payments made in accordance with
the terms of this Agreement.
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3.6.3 For the period during which the Royalty accrues
hereunder and for a period of twelve (12) months
after completion of Royalty payments, Licensee shall
grant C-Chip or its designated professional advisors
reasonable access during business hours to inspect
the books and records kept by Licensee relating to
the Sales of Market Products, the revenues received
in respect thereof and Royalty payments under this
Agreement and shall make such books and records
available and permit C-Chip and its designated
professional advisors to audit, inspect and take
copies of such books and records. In the event that
such audits and inspections reveal accounting or
other errors in relation to Royalty payments due to
C-Chip, the difference shall be paid immediately by
Licensee by way of additional reductions of the
Outstanding Loan Amount in accordance with the terms
of Section 3.1 or by payment of the Royalty amount
specified in Section 3.4, as the case may be, with
interest at a rate of one percent (1%) monthly
(twelve per cent (12%) annually). All costs and
expenses arising out of such audits and inspections
shall be borne by C-Chip except where the audit
reveals accounting or other errors in relation to
Royalty payments due to C-Chip which represent a
discrepancy of 5% or more from amounts actually found
to be due, in which case all costs associated with
such audits or inspections shall be borne by
Licensee.
3.6.4 In the event C-Chip wishes to inspect the books and
records maintained by Licensee in relation to the
Sales of Market Products, the revenue received in
respect thereof and Royalty payments under this
Agreement, it shall notify Licensee, in writing, of
the scope of such inspection as well as the
organization to which the inspector belongs and the
title and name of the inspector at least twenty (20)
Business Days prior to the inspection commencement
date.
3.7 Undertaking by C-Chip
As further consideration for the obligations of Licensee
hereunder and the payment of the Royalty, C-Chip hereby
undertakes to pay to Licensee an amount to be determined and
agreed upon by C-Chip and Licensee on or before March 31,
2007, which amount will be applied as a further reduction of
the principal and interest owing on the Outstanding Loan
Amount as of such date.
4. OWNERSHIP
4.1 Nothing contained in this Agreement shall be deemed to convey
any title to or ownership in C-Chip's Intellectual Property,
in whole or in part, to Licensee. All rights in C-Chip's
Intellectual Property not expressly licensed to Licensee
hereunder are hereby reserved by C-Chip.
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4.2 Nothing contained in this Agreement shall be deemed to convey
any title to or ownership in Licensee's Technology, in whole
or in part, to C-Chip. For greater certainty, it is
acknowledged that the Licensee's Technology is completely
distinct and different from the Technology and C-Chip shall
have no claim to any right in any of the improvements to the
Licensee's Technology. In addition, no provision of this
Agreement shall be deemed to impose a duty on the Licensee to
give precedence to the Sale of the C-Chip Products over the
Sale of Licensee's Technology based products, it being
understood that the Sale of Market Products will be dictated
by the preferences of clients operating within the Market.
5. PURSUIT AND MAINTENANCE OF TRADE-MARKS RIGHTS
5.1 Licensee shall maintain the registrations for the Trade-Marks
for so long as Licensee uses the Trade-Marks in association
with the C-Chip Products in accordance with the terms hereof.
The costs associated with the maintenance of the registrations
for the Trade-Marks shall be borne by Licensee. In the event
that Licensee ceases using the Trade-Marks as described above,
it shall immediately so advise C-Chip in writing and
thereafter, C-Chip shall assume responsibility at its own cost
for the maintenance of the registrations for the Trade-Marks.
5.2 C-Chip shall execute all instruments or documents and render
such other assistance, at Licensee's expense, as Licensee may
reasonably request in order to maintain the Trade-Marks.
6. INFRINGEMENTS
6.1 Duty to inform
Each party undertakes to inform the other party promptly of
(i) any infringement or threatened infringement by a third
party of any Intellectual Property rights of either party and
(ii) of any claim of any infringement of any Intellectual
Property rights of either party made by a third party which
comes to its attention.
6.2 Infringement by Third Parties
6.2.1 If any of C-Chip's Intellectual Property is infringed
by a third party, C-Chip will, after consultation
with Licensee, decide upon the course of action to
take in order to put an end to the infringement
and/or to seize any product manufactured, marketed,
distributed or sold in violation of C-Chip's
Intellectual Property.
6.2.2 If C-Chip judges in its reasonable discretion that
C-Chip's Intellectual Property rights have been
infringed upon by a third party, it shall take any
and all necessary measures it deems reasonable in the
circumstances, without any obligation to do so, at
its own cost and expense including institution of
legal proceedings. C-Chip shall keep Licensee
informed regarding the progress of such necessary
measures. Licensee shall have the right to
participate in such legal proceedings or settlement
negotiations at its own cost and expense and by
counsel of its own choice.
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6.2.3 Licensee shall have the right at its own cost and
expense and by counsel of its own choice to institute
and prosecute legal proceedings against suspected
infringers of C-Chip's Intellectual Property rights
as Licensee may deem necessary or desirable to
safeguard its rights under this Agreement if C-Chip
does not institute legal proceedings within ninety
(90) days after gaining knowledge thereof by C-Chip
on its own or receipt of a notice from Licensee
sufficiently detailed to institute such legal
proceedings, provided that Licensee shall not have
the right to settle, compromise or take any action in
any dispute which diminishes, limits or inhibits the
scope, validity or enforceability of C-Chip's
Intellectual Property without the express written
consent of C-Chip. In such case, Licensee shall keep
all proceeds resulting from such legal proceedings
and shall have the right to settle such proceedings
save and except if such settlement includes any
invalidation of any of C-Chip's Intellectual
Property. During the course of any such proceedings,
Licensee shall keep C-Chip informed regarding the
progress of the proceedings, and C-Chip shall fully
provide necessary support and cooperation at
Licensee's expense. C-Chip shall have the right to
participate in such proceedings or settlement
discussions at its cost with counsel of its choice.
7. TERM AND TERMINATION
7.1 Term
7.1.1 This Agreement enters into effect as of the date
hereof and shall end, unless earlier terminated in
accordance with the other provisions of this Section
7 or as a result of the exercise of the Licensee
Option in accordance with terms of Section 3.4, on
the first anniversary of the Repayment Date.
7.1.2 Subsequently, this Agreement will automatically renew
for successive two (2) year periods unless, at least
sixty (60) days' prior to the beginning of any
renewal term, either party gives the other party
written notice of its intent to terminate the
Agreement.
7.2 Termination for Material Breach
The Agreement may be terminated by either party, by sending
notice of termination in writing to the other party, in case
of any material breach of any of the terms or conditions of
this Agreement by the other party, if such party fails to
remedy such breach or default within thirty (30) days after
receipt of written notice thereof from the other party hereto.
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7.3 Termination for Insolvency
This Agreement shall be automatically terminated if either
party (i) makes a general assignment for the benefit of
creditors, (ii) is the subject of voluntary or involuntary
insolvency proceedings, pursuant to the Bankruptcy and
Insolvency Act, the Companies Creditors Arrangement Act or the
Winding Up and Restructuring Act or similar applicable
legislation which proceedings are not dismissed within thirty
(30) days after the date of filing thereof or (iii) has a
receiver or trustee appointed for substantially all of its
property.
7.4 Termination by C-Chip
C-Chip may terminate this Agreement upon written notice to
Licensee in the event that Licensee takes any action to wind
up or terminate its corporate existence or which may lead to a
material change in the nature of its business.
7.5 Effect of Termination
7.5.1 In case of expiration or termination of this
Agreement under this Section 7:
7.5.1.1 all licenses granted hereunder shall
terminate and all rights of Licensee to Sell
the C-Chip Products will cease as of the
date of such expiration or termination; and
7.5.1.2 each party will return all copies of the
other party's Confidential Information in
its possession and provide such other party
with a certificate signed by a duly
authorized officer attesting to such return.
7.5.2 In the event of early termination of this Agreement
by Licensee due to a material breach by C-Chip under
Section 7.2 or otherwise under Section 7.3 and in
addition to the provisions of Section 7.5.1, the full
amount of principal and interest owing on the Loan
shall become immediately exigible and payable to
Licensee.
7.5.3 In the event of early termination of this Agreement
by C-Chip due to a material breach by Licensee under
Section 7.2 or otherwise under Sections 7.3 or 7.4,
and in addition to the provisions of Section 7.5.1,
Licensee agrees that upon such termination, the Loan
shall be deemed to be immediately forgiven and
cancelled, and C-Chip shall be released from any
further obligations with respect thereto.
7.5.4 Subject to the provisions of Sections 7.5.2 and
7.5.3, the expiration or termination of this
Agreement shall not release either party hereto from
any liability which at the time of such termination
has already accrued to the other party.
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8. CONFIDENTIALITY
8.1 Confidential Information
For the purposes of this Agreement, "Confidential Information"
means the existence and provisions of this Agreement, the
details regarding the business relationship between Licensee
and C-Chip, and any information about the disclosing party's
business or activities that is proprietary and confidential,
which shall include all information regarding C-Chip's
Intellectual Property, the Intellectual Property of Licensee,
the C-Chip Products, all business, financial, technical and
other information of a party marked or designated by such
party as "confidential" or "proprietary" or information which,
by the nature of the circumstances surrounding the disclosure,
should in good faith to be treated as confidential.
8.2 Exceptions
Notwithstanding the foregoing, Confidential Information will
not include information which: (i) is now, or hereafter
becomes, through no act or failure to act on the part of the
receiving party, generally known or available to the public;
(ii) is acquired by the receiving party before receiving such
information from the disclosing party and without restriction
as to use or disclosure; (iii) is hereafter rightfully
furnished to the receiving party by a third party, without
restriction as to use or disclosure; (iv) is information which
the receiving party can document was independently developed
by the receiving party without use of or reference to the
disclosing party's Confidential Information; (v) is required
to be disclosed by applicable law, provided that the receiving
party uses reasonable efforts to give the disclosing party
notice of such required disclosure and an opportunity to
obtain a protective order or other appropriate remedy; or (vi)
is disclosed with the prior written consent of the disclosing
party.
8.3 Nondisclosure Obligations
During the term of this Agreement and thereafter, each party
agrees (i) that it will not disclose to any third party or use
any Confidential Information disclosed to it by the other
except as expressly permitted in this Agreement and (ii) that
it will take all reasonable measures to maintain the
confidentiality of all Confidential Information of the other
party in its possession or control, which will in no event be
less than the measures it uses to maintain the confidentiality
of its own information of similar importance. Either party may
disclose the terms of this Agreement to potential investors,
lenders or acquisition partners and their representatives,
provided that disclosure is made pursuant to customary
non-disclosure agreements limiting the recipient's use of
disclosed information to the evaluation of the potential
investment, loan or acquisition.
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8.4 Return
Upon the disclosing party's request, the receiving party will
promptly return to the disclosing party all tangible items
containing or consisting of the disclosing party's
Confidential Information and all copies thereof.
8.5 Injunctive Relief
Each party acknowledges that all of the disclosing party's
Confidential Information is owned solely by the disclosing
party (or its licensors) and that the unauthorized disclosure
or use of such Confidential Information would cause
irreparable harm and significant injury to the disclosing
party, the degree of which may be difficult to ascertain.
Accordingly, each party agrees that the disclosing party will
have the right to obtain an immediate injunction enjoining any
breach of this Section, as well as the right to pursue any and
all other rights and remedies available at law or in equity in
the event of such a breach.
9. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
9.1 WARRANTY DISCLAIMER. LICENSEE ACKNOWLEDGES AND AGREES THAT ITS
USE OF C-CHIP'S INTELLECTUAL PROPERTY UNDER THIS AGREEMENT IS
ON AN "AS IS, WHERE IS" BASIS. C-CHIP MAKES AND THERE IS NO
WARRANTY, REPRESENTATION OR CONDITION, EXPRESS OR IMPLIED,
STATUTORY OR OTHERWISE RELATING TO THE PROCESSES, TECHNOLOGY
OR C-CHIP'S INTELLECTUAL PROPERTY, OR THIS AGREEMENT.
C-CHIP EXPRESSLY EXCLUDES ANY WARRANTIES, REPRESENTATIONS AND
CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY,
NON-INFRINGEMENT OR FITNESS FOR ANY PARTICULAR PURPOSE. FOR
GREATER CERTAINTY, C-CHIP DOES NOT WARRANT OR REPRESENT THAT
THE TECHNOLOGY IS ERROR-FREE.
9.2 LIMITATION OF LIABILITY. C-CHIP SHALL NOT BE LIABLE FOR ANY
CLAIMS, DEMANDS, ACTIONS OR DAMAGES ARISING FROM LICENSEE'S
USE OF THE PROCESSES, TECHNOLOGY, C-CHIP'S INTELLECTUAL
PROPERTY OR THE SUBJECT MATTER THEREOF. IN NO EVENT SHALL
EITHER PARTY, ITS DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES, BE
LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, OR ANY OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION,
LOST PROFITS, LOST DATA, OR LOST SAVINGS IN CONNECTION WITH
THIS AGREEMENT, THE PROCESSES, TECHNOLOGY OR C-CHIP'S
INTELLECTUAL PROPERTY, HOWEVER CAUSED, WHETHER ARISING IN
CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT, CIVIL LIABILITY
(INCLUDING NEGLIGENCE) OR OTHERWISE.
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10. INDEMNIFICATION
10.1 Indemnification by Licensee
Licensee hereby agrees to indemnify and hold C-Chip and its
parent, Affiliates and their respective successors, officers,
directors, employees and agents harmless from and against any
and all actions, claims, losses, damages, liabilities, awards,
costs and expenses (including reasonable lawyer's fees)
arising out of (i) any claim or suit brought against Licensee
by a third party resulting from Licensee's Sale of the C-Chip
Products in a manner which is inconsistent with the terms of
this Agreement or (ii) any third party claim of intellectual
property infringement relating to Licensee's Intellectual
Property.
10.2 Indemnification by C-Chip
C-Chip hereby agrees to indemnify Licensee and its parent,
Affiliates and their respective successors, officers,
directors, employees and agents harmless from and against any
and all actions, claims, losses, damages, liabilities, awards,
costs and expenses (including reasonable lawyer's fees)
arising out of any third party claim of intellectual property
infringement relating to C-Chip's Intellectual Property.
11. PROJECT MANAGEMENT
11.1 Project Managers
The primary technical/commercial contact for each party for
the purposes of this Agreement (each a "Project Manager") will
be:
For C-Chip:
Marie-Annick Riel, President
For Licensee:
Daniel Bouchard, Chief Financial Officer
11.2 Meetings
The Project Managers will meet at least every quarter to
discuss the Sale of the Market Products and related revenues,
any technical or commercial issues that may have arisen since
the previous meeting and, more generally, any other issue
related to the performance of this Agreement.
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12. GENERAL
12.1 Public Announcement
Other than as is required by law, no public announcement of
the existence of or the provisions of this Agreement shall be
made without written consent of both parties.
12.2 Relationship of the Parties
Each of the Parties hereto is an independent contractor.
Neither this Agreement, nor any terms and conditions contained
herein, shall be construed as (i) creating a partnership,
joint venture, franchise or agency relationship between the
parties or (ii) giving either party the authority to direct or
control the daily activities of the other party.
12.3 Further Assurances
Each of the parties will from time to time execute and deliver
all such further documents and instruments and do all acts and
things as another party may reasonably require to effectively
carry out or better evidence or perfect the full intent and
meaning of this Agreement.
12.4 Benefit of the Agreement
This Agreement will enure to the benefit of and be binding
upon the respective heirs, executors, administrators, other
legal representatives, successors and permitted assigns of the
parties.
12.5 Entire Agreement
This Agreement constitutes the entire agreement between the
parties with respect to the subject matter hereof and cancels
and supersedes any prior understandings and agreements between
the parties with respect thereto, including the 2005 Agreement
(except as it relates to the existence of the Loan) and the
memorandum of understanding entered into between C-Chip,
Licensee and Manaris Corporation on August 14, 2006. There are
no representations, warranties, terms, conditions,
undertakings or collateral agreements, express, implied or
statutory, between the parties other than as expressly set
forth in this Agreement.
12.6 Amendments and Waivers
No amendment to this Agreement will be valid or binding unless
set forth in writing and duly executed by all the parties. No
waiver of any breach of any provision of this Agreement will
be effective or binding unless made in writing and signed by
the party purporting to give the same and, unless otherwise
provided in the written waiver, will be limited to the
specific breach waived.
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12.7 Assignment
12.7.1 Either party may assign this Agreement (i) to any of
its Affiliates which is capable of exercising its
rights and performing its obligations hereunder or
(ii) to any person which acquires control of it by
purchase of shares or with which it may merge or
consolidate or to which it may transfer all or
substantially all its assets.
12.7.2 Except as provided in Section 12.7.1, neither party
may assign the Agreement without the prior written
consent of the other party.
12.8 Severability
If any provision of this Agreement is determined to be invalid
or unenforceable in whole or in part, such invalidity or
unenforceability will attach only to such provision or part
thereof and the remaining part of such provision and all other
provisions hereof will continue in full force and effect.
12.9 Notices
Any demand, notice or other communication to be given in
connection with this Agreement shall be given in writing and
shall be given by personal delivery, by registered mail or by
electronic means of communication addressed to the recipient
as follows:
To C-Chip:
C-Chip Technologies Corporation (North America) Inc.
400 Montpellier Boulevard
Ville St-Laurent, Quebec H4N 2G7
Attention: Marie-Annick Riel
Telecopier: (514) 428-8999
To Licensee:
iMetrik Solutions Inc.
740 Notre Dame East
Suite 1320
Montreal Quebec H3C 3X6
Attention: Daniel Bouchard
Telecopier: (514) 904-0611
or to such other address, individual or electronic
communication number as may be designated by notice given by a
party to the others. Any demand, notice or other communication
given by personal delivery shall be conclusively presumed to
have been given on the day of actual delivery thereof and, if
given by registered or certified mail, on the third (3rd)
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Business Day following the deposit thereof in the mail and, if
given by electronic communication, on the day of successful
transmittal thereof if given during the normal business hours
of the recipient and on the Business Day during which such
normal business hours next occur if not given during such
hours on any day. If the party giving any demand, notice or
other communication knows or ought reasonably to have known of
any difficulties with the postal system which might affect the
delivery of mail, any such demand, notice or other
communication shall not be mailed but shall be given by
personal delivery or by electronic communication.
12.10 Governing Law
This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec and the
laws of Canada applicable therein.
12.11 Counterparts
This Agreement may be executed in any number of counterparts,
each of which will be deemed to be an original and all of
which taken together will be deemed to constitute one and the
same instrument.
12.12 Facsimiles
Delivery of an executed signature page to this Agreement by
any party by electronic transmission will be as effective as
delivery of a manually executed copy of the Agreement by such
party.
[Signatures appear on following page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
referred to above.
C-CHIP TECHNOLOGIES CORPORATION
(NORTH AMERICA) INC.
Per: /s/ Marie-Annick Riel
---------------------
Marie-Annick Riel, President
IMETRIK SOLUTIONS INC.
Per: /s/ Daniel Bouchard
-------------------
Daniel Bouchard, Chief Financial Officer