EXHIBIT 10.6
RADIO LOCATION SYSTEM
LICENSE AGREEMENT
DATED JULY 13, 2004
BETWEEN
TELETRAC, INC.
AND
TELEMATICS WIRELESS, LTD.
RADIO LOCATION SYSTEM LICENSE AGREEMENT
---------------------------------------
THIS RADIO LOCATION SYSTEM LICENSE AGREEMENT (this "License Agreement"), dated
this 13th day of July, 2004, is made by and between TELETRAC, INC., a Delaware
corporation, ("Teletrac"), and Telematics Wireless Ltd., a corporation organized
under the laws of the State of Israel ("Licensee"). Teletrac and Licensee are
sometimes individually referred to as "Party" and collectively as "Parties."
WITNESSETH:
WHEREAS, Teletrac owns or possesses rights to proprietary information,
technology and software necessary for the establishment and operation of a Radio
Location System, as defined below; and
WHEREAS, Licensee desires to establish and operate within the Territory a Radio
Location System; and
WHEREAS, subject to the terms and conditions of this License Agreement, and only
for purposes within the Territory, Teletrac desires to grant to Licensee: (i) a
non - exclusive, royalty free, perpetual, transferable right to use, construct,
maintain and provide support for a Radio Location System, and to market, sell,
promote, maintain and provide support; and (ii) a non - exclusive, royalty free,
perpetual, transferable license to use RLS Licensed Software and RLS Licensed
Technical Information, as defined below, to construct, maintain, operate and
provide support for a Radio Location System in the Territory, and Licensee
desires to acquire such right and licenses.
WHEREAS, Teletrac shall not be obliged to provide licensee any equipment
(hardware, software or firmware), knowledge or support relating to the Radio
Location System.
NOW THEREFORE, in consideration of the foregoing and the mutual premises set
forth in this License Agreement, the Parties agree as follows:
1. Definitions.
1.1 "Effective Date" shall mean the date of this Agreement.
1.2 "Radio Location System" shall mean a land-based radio location system that
uses the RLS Licensed Software and RLS Licensed Technical information for
purposes of locating animate or inanimate objects, including people, objects and
vehicles, and for ancillary activities such as data messaging or voice messages,
or both.
1.3 "RLS Coverage Area" shall mean the geographic area of desired coverage of
the Radio Location System.
1.4 "RLS Licensed Software" shall mean operational computer software or firmware
programs, or both, that are listed in Exhibit A to this License Agreement and
sublicensed by Teletrac to Licensee. The RLS Licensed Software does not include
management information software, including, but not limited to, for purposes
such as customer activation, billing and accounting.
The RLS Licensed Software programs are the programs designed to perform the
following functions for the Radio Location System:
(1) RLS Network Control Center Licensed Software. These software programs
consist of the following three categories:
(a) Real time operating software that communicates and synchronizes information
received from Location Unit radio signals to calculate locations in real time;
(b) Systems support and maintenance software that enables RLS Customers to
access a Radio Location System, forwards requests for locations to RLS
Transmission Sites and diagnoses Radio Location System malfunctions;
(c) Database services software that performs customer validation functions,
tracks or records use of the Radio Location System and performs message
management functions.
(2) RLS Transmission and RLS Receiver Sites Licensed Software. These software
programs perform calculations and act as an interface for signals from RLS
Receiver Sites and RLS Transmission Sites and the RLS Data Transmission Network.
1.5 "RLS Licensed Technical information" shall mean all tangible together with
intangible information that is proprietary to Teletrac and that was provided to
the Licensee and may assist Licensee for the purpose of designing, constructing
and operating and maintaining the RLS in the Territory.
1.6 "RLS Network Control Center" shall mean the master station that serves a RLS
Coverage Area. The RLS Network Control Center consists of a group of networked
or interconnected computers, or both, that constitute the information processing
hub of the Radio Location System.
1.7 "Territory" shall mean the countries described on Exhibit B.
2. Grant of Rights.
2.1 Radio Location System License. As of the Effective Date, and subject to the
terms and conditions of this License Agreement, Teletrac grants to Licensee a
non - exclusive, royalty free, perpetual, transferable right, solely within the
Territory, to construct, use, maintain and provide support for a Radio Location
System, and to market, sell, promote, maintain and provide support for the Radio
Location System, customer equipment and customer services, and to provide
customer maintenance, at every country within the Territory. It is agreed,
Licensee may sublicense any of its rights under this Agreement, provided
however, Licensee remains sole responsible for any payments due under this
Agreement
2.2 RLS Licensed Software and RLS Licensed Technical Information. As of the
Effective Date, and subject to the terms and conditions of this License
Agreement, Teletrac grants to Licensee a non-exclusive, royalty free, perpetual,
transferable license to use RLS Licensed Software and RLS Licensed Technical
Information solely for the purpose of operating, maintaining and providing
support for a Radio Location System in the Territory. It is agreed, Licensee may
sublicense any of its rights under this Agreement, provided however, Licensee
remains sole responsible for any payments due under this Agreement.
3. Reservation of Rights. Except as to those certain countries in which rights
and licenses expressly granted to Licensee under this License Agreement,
Teletrac reserves all proprietary rights, title and interest, including all
ownership and proprietary rights, in and to the Radio Location System, RLS
Licensed Software, RLS Licensed Technical Information and the "Teletrac" trade
name, trademark and service ▇▇▇▇, including all designs, inventions, patents,
copyrights, trademarks, service marks, trade secrets, know-how, techniques,
engineering details, enhancements, improvements, addition, upgrades,
modifications, derivative works. Licensee acknowledges that no title to the
"Teletrac" marks, RLS Licensed Software or RLS Licensed Technical Information,
or any part thereof, has been or will be transferred to Licensee.
4. Consideration.
4.1 Fees. In consideration for the grant of rights to Licensee in this License
Agreement, Licensee will perform the obligations set forth in this License
Agreement and will pay to Teletrac the following amounts:
4.1.1 Lump Sum Payment. Licensee shall pay to Teletrac the sum of One Hundred
thousand U.S. Dollars (U.S. $100,000.00) (the "Lump Sum Payment") for each
Customer of Licensee that operates a Radio Location System in each country
within the Territory. For example, the Lump Sum Payment for the same Customer to
operate a network in two different countries would be $200,000 ($100,000 per
country); likewise, the License Fee for 2 separate Customers operating networks
in the same country would be $200,000 ($100,000 per Customer).
4.1.2 The Lump Sum Payment shall be payable by Licensee to Teletrac within
thirty (30) days following the first commercial sale of RLS services by given
Licensee customer. Licensee shall notify Teltrac the name of the country within
the Territory and the name of the customer that has started to provide
commercial RLS services.
4.2 Payments. All payment shall be due and payable in U.S. dollars. Payments
shall be inclusive of any all taxes, including deduction for Israeli withholding
taxes that apply to payments from Licensee to Teletrac. Any Lump Sum Payment not
received by Teletrac as set forth in Section 4.1.2 shall incur an administrative
fee of 10% to compensate Teletrac for administrative costs associated with such
late Lump Sum Payment. Thereafter, all outstanding amounts shall accrue interest
at a rate of 15% per annum. Licensee may pay any payments stated above, through
a subsidiary.
5. Radio System Location Equipment. Licensee acknowledges that Teletrac does not
manufacture or provide any of the equipment that will be needed in order to
construct and operate the Radio Location System in the Territory. The Parties
acknowledge and agree that Licensee is free to purchase any equipment needed for
the RLS operation and any and all other equipment and materials needed in order
to construct and operate the Radio Location System in the Territory from any
individual or entity that manufactures such equipment in accordance with the
technical and other specifications necessary to properly operate the Radio
Location System. Licensee acknowledges and agrees that Teletrac does not provide
any representation or warranty
of any kind, express or implied, including, without limitation, any implied
warranty of merchantability or fitness for a particular purpose on any equipment
or materials obtained by License from any third party.
6. Term. This License Agreement shall commence on the Effective Date and shall
remain in effect indefinite.
7. No Damages. Except for damages arising out of Licensee's failure to pay any
Lump Sum Payment as they become due, neither Licensee nor Teletrac shall, be
liable to the other for compensation, reimbursement or any damages, either
actual, consequential, incidental, special or punitive, including, but not
limited to, the loss of prospective profits on anticipated sales, or on account
of expenditures, investments, leases or commitments in connection with the
business or goodwill of Teletrac or Licensee or otherwise anticipated under this
License Agreement. In the case of failure of Licensee to pay a Lump Sum Payment,
Teletrac shall be entitled to all reasonable costs and expenses, including but
not limited to attorneys costs, including costs and expenses of obtaining legal
representation in Israel, incurred by Teletrac in collecting any outstanding
Lump Sum Payment.
8. Licensee Indemnity.
Licensee shall defend, indemnify and hold harmless Teletrac, and its directors,
officers, employees and agents from and against any and all claims, demands,
liabilities, actions, suits, proceedings or expenses (including reasonable
attorney's fees) asserted by a third party: (a) arising out of or relating to
Licensee's marketing, sale, use, design, construction, manufacture, maintenance,
repair, modification, upgrade, enhancement, improvement or support of the Radio
Location System in the Territory, or any part thereof, and Licensee agrees to
undertake the cost of defending the same, and will pay resulting costs and
damages finally awarded, provided that:
(1) Teletrac promptly notifies Licensee of the claim;
(2) Teletrac cooperates with Licensee in the defense, provided that Licensee
reimburses Teletrac for its reasonable out-of-pocket expenses (including
reasonable outside counsel's legal fees) associated with such cooperation; and
(3) Licensee has sole control of the defense and all related settlement
negotiations, using counsel reasonably satisfactory to Teletrac.
9. NO WARRANTY. TELETRAC MAKES ABSOLUTELY NO WARRANTIES, EXPRESS OR IMPLIED,
WITH RESPECT TO THE RADIO LOCATION SYSTEM OR ANY PART THEREOF, INCLUDING, BUT
NOT LIMITED TO, THE RLS COMPONENTS, RLS LICENSED SOFTWARE AND RLS LICENSED
TECHNICAL INFORMATION. BY WAY OF EXAMPLE, BUT NOT OF LIMITATION, TELETRAC MAKES
NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY
THAT THE RADIO LOCATION SYSTEM, OR ANY PART THEREOF, IS ERROR-FREE OR THAT ITS
USE WILL BE UNINTERRUPTED OR THAT THE RADIO LOCATION SYSTEM WILL BE A PROFITABLE
ENTERPRISE FOR LICENSEE. LICENSEE ACKNOWLEDGES THAT IT HAS MADE AN INDEPENDENT
INVESTIGATION OF THE RADIO LOCATION SYSTEM BUSINESS THAT IT WILL CONDUCT UNDER
THIS
LICENSE AGREEMENT. TELETRAC AND EACH OF ITS AFFILIATES EXPRESSLY DISCLAIM THE
MAKING OF, AND LICENSEE ACKNOWLEDGES THAT IT HAS NOT RECEIVED OR RELIED UPON,
ANY GUARANTEE OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO THE FEASIBILITY OF
OPERATING A RADIO LOCATION SYSTEM IN THE TERRITORY, AS TO LICENSEE'S ABILITY TO
DESIGN, CONSTRUCT, OPERATE OR MAINTAIN A RADIO LOCATION SYSTEM IN THE TERRITORY
OR AS TO THE COSTS LICENSEE MAY INCUR OR THE REVENUES IT MAY RECEIVE WITH
RESPECT TO A RADIO LOCATION SYSTEM IN THE TERRITORY. LICENSEE FURTHER
ACKNOWLEDGES THAT IT HAS NO KNOWLEDGE OF ANY REPRESENTATIONS BY ANY OFFICER,
EMPLOYEE, OR AGENT OF TELETRAC THAT ARE CONTRARY TO THIS SECTION 9.
10. Relationship of the Parties. The relationship of the parties established by
this License Agreement shall be that of independent contractors. Nothing in this
License Agreement shall be construed to create an agency, partnership, joint
venture or employment relationship between Licensee and Teletrac, nor to make
Licensee the agent of Teletrac, or Teletrac the agent of Licensee, for any
purpose. Neither party is granted authority by the other to undertake
commitments, transact business, create or assume any obligation (express or
implied) or otherwise act (or represent that it can act) in the other's name or
on the other's behalf.
11. Force Majeure. If the performance of either Party required by this License
Agreement is prevented, restricted or delayed by fire, other casualty or
accident, war or violence or serious threat of the same, arrest or restraint of
government, requisition of vessel or aircraft, explosion, governmental request,
guidance, order or regulation, or any other circumstance beyond the reasonable
control of the Party and without such Party's fault or negligence, the affected
Party, upon giving due notice to the other Party, shall be excused from such
performance, but only to the extent directly attributable to the circumstance
and the excused party shall not be liable for loss or damage or failure of or
delay in such performance.
12. Governing Law. The governing law of this License Agreement shall be that of
the State of California, U.S.A., as if both parties hereto were resident and
doing business in such state.
13. Notices. All notices under this License Agreement shall be in writing and
may be given by delivering the same by hand, or by sending the same by an
overnight courier that maintains verification of delivery, or by facsimile, to
the relevant person and address set out below or such other person and address
as either Party may notify to the other from time to time. Any such notice given
as set forth above shall be deemed to have been given or received at the time of
delivery (if delivered by hand) and upon verified receipt (if sent by post,
facsimile or overnight courier). In the case of facsimile, the transmission
report shall constitute the verified receipt. Each Party may, at any time,
change the persons or address to which its notices are to be sent by notifying
the other Party of such change in accordance with this Section 15.
Teletrac Licensee
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Teletrac, Inc. Telematics Wireless Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Holon, Israel
(▇▇▇) ▇▇▇-▇▇▇▇ (Tel) (▇▇▇-▇) ▇▇▇▇▇▇▇ (Tel)
(▇▇▇) ▇▇▇-▇▇▇▇ (Fax) (▇▇▇-▇) ▇▇▇▇▇▇▇ (Fax)
Attn: General Counsel Attn: President & CEO
14. English Language. All communications, notices and records required to be
kept under and materials provided pursuant to this License Agreement shall be in
English.
15. Scope and Amendment of License Agreement. The parties acknowledge that each
has read this License Agreement, understands it and agrees to be bound by its
terms. This License Agreement may be amended only by a subsequent writing that
specifically refers to this License Agreement and that is signed by both
Parties, and no other act, document, usage or custom shall be deemed to amend
this License Agreement.
16. Binding Effect. This License Agreement shall be binding on and inure to the
benefit of the respective successors and permitted assigns of the parties.
17. Authority. Each of the respective persons executing this License Agreement
hereby covenants and warrants that such person has full legal power, right and
authority to bind the entity on whose behalf such person is signing to each and
every term and provision herein.
18. Severability. If any provision of this License Agreement shall be held
illegal or invalid by and court, this License Agreement shall be construed and
enforced as if such illegal or invalid provision had not been contained herein
and this License Agreement shall be deemed an agreement of the Parties to the
full extent permitted by law. If any provision shall be declared invalid or
unenforceable because of its breadth, scope or duration, such provision shall be
deemed modified to the extent necessary to make it valid and enforceable and
shall remain in full force and effect as so modified, or if not so modified,
shall be severable from the rest of this License Agreement.
19. Headings. All headings are for reference only and shall not be considered in
construing this License Agreement.
20. Waiver. The failure of either Party at any time to require performance by
the other Party of any provision hereof shall in no way affect the full right to
require such performance at any time thereafter. Nor shall the waiver by either
party of a breach of any provision hereof be a waiver of any succeeding breach
of the same or any other such provisions or be a waiver of the provision itself.
21. Entire Agreement. This License Agreement together with its Exhibits
constitute the entire agreement of the parties with respect to the license of
the RLS Licensed Software and RLS Licensed Technical Information to Licensee and
supersede any and all prior negotiations,
correspondence, understandings and agreements between the parties, and the full
understanding of the Parties is embraced herein.
22. Exhibits. The following exhibits are a part of this License Agreement:
Exhibit A - List of RLS Licensed Software
Exhibit B - Territory Description
23. Construction of Agreement. This License Agreement has been negotiated by the
Parties and their respective attorneys and the language of this Agreement shall
not be construed for or against either party.
24. Counterparts. This License Agreement may be executed in counterparts, each
of which shall be an original as against any Party whose signature appears on
such counterpart and all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Parties executed and delivered this License Agreement as
of the day and year first above written.
TELEMATICS WIRELESS, LTD. TELETRAC, INC
By /s/ ▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Print Name ▇▇▇▇ ▇▇▇▇▇ Print Name ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Title President & CEO Title Secretary
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Date: June , 2004 Date: July 13, 2004
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EXHIBIT A
RLS LICENSED SOFTWARE
Component O/S Purpose
--------- --- -------
RXIF QNX4 Interface to Tadiran Receiver sites
TXIF QNX4 Interface to transmit sites using Simulcast
Paging Controller
SOLVR QNX4 Multilateration position determination
ITH QNX4 Inbound transmission handler
RMGR QNX4 Request Manager for user service requests
TP QNX4 Transaction Processor to capture transaction data for
billing
CAM QNX4 Customer Access Monitor for FD3.x access lines
SCHED QNX4 Transmission Scheduler for Simulcast Paging System
ASMGR QNX4 Process messages initiated from mobile units
CAL QNX4 Calibrate receiver site timing
SF QNX4 Message store and forward services
Traccess QNX4 Dial in access for FD3.x protocol
Traccess II QNX4 TCP/IP Access for FDEE protocol
Mqueue QNX4 Message queuing between QNX tasks on same LAN
QWIS QNX4 Message queuing between QNX tasks on same WAN
SMC Server QNX4 Network management server
SMC Workstation NT4 Network management workstation
DBClient QNX4 Route database queries from QNX to WINDOWS NT
Eventlogger QNX4 Performance analysis database capture
Eventlogger NT4 ODBC Interface to MS-SQL Server for Eventlogger
WDBServer NT4 ODBC Interface to MS-SQL Server for DBCLIENT
CAB NT4 Customer Access Bridge
CDPDMgr* NT4 CDPD Network Interface
CustomerDB SQL Customer database schema
EventLogStat SQL Eventlogger statistical database schema
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ Data entry for MS-SQL Server
* This component is required only for CDPD network access.
EXHIBIT B
TERRITORY
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The entire world, excluding United States and Europe.